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Jason Lomax

Jason Lomax’s Answers

14 total

  • Is it appropriate / acceptable to cite case law from the 8th Circuit court in a brief submitted to a MN district court?

    I understand the 8th Cir. is a federal court, and the district court is a state court. However, the issue pertains to arbitration and the FAA. So, since federal law is being cited, is it out of line to reference opinions from the 8th Circuit?

    Jason’s Answer

    You may always cite law from any jurisdiction. This includes citing to the Federal Circuit Courts in state court.

    The important part is how relevant the case law is to the point you are citing (i.e. are the facts of the case similar or does it illuminate the law and give guidance).

    That being said, the difference is between "binding" and "persuasive" authority. Case law from other jurisdictions typically only has persuasive authority. This means that a court MAY follow what that other case says, assuming the court finds it useful.

    Binding authority is typically when cases are cited from the same jurisdiction, but from a higher ranking court (i.e. the Supreme Court of your state). In this situation, generally speaking, if the case is sufficiently similar in both the facts and the law to case being ruled on, then the ruling court MUST follow that case law.

    More often than not you would want to cite to binding authority as opposed to persuasive authority for obvious reasons. However, sometimes it is only persuasive case law that exists to support the point you are trying to make. In such a case, you would certainly include it.

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  • What is the best course of action in this postal disability claim?

    My mother is a postal employee that tried to go on disability, but was denied. She experienced severe head trama in '02 from a bicycle accident. It was made worse when a man forced her stopped mail jeep into a ditch at 60mph while on the route ...

    Jason’s Answer

    This is a complex set of facts and multiple issues are implicated. I suggest that your mother retain counsel at once. It sounds like the issues include federal workers' compensation, social security/opm disability retirement and employment issues. My firm focuses on federal workers' compensation. Regardless, your mom should seek professional assistance immediately.

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  • I'm thinking a DPOA is what I would need to get for my sister. She makes stupid mistakes with her money & I want to protect her.

    She trusts me implicitly... and I promised my Mother 40 years ago to take care of my sister. She inherited $800,00 when her husband died and now has less that $400,00 because of stupid errors. Once I get the DPOA will she still be able to handle t...

    Jason’s Answer

    People often misunderstand the nature of a Power of Attorney (POA). A POA only grants the Agent the power to act in the shoes of the person granting the power (the Prinicipal) and only for the purposes specified in the document itself. It does not allow the Agent the authority to act unilaterally. All actions are to be at the behest of the Principal.

    To act in what you think are the "best interest" of the Principal, but contrary to what the Principal wants is a violation of the fiduciary duty by the Agent. This could result in the Agent getting sued or criminally prosecuted for theft, depending on the circumstances. Further, the granting of the POA by a Principal does not deprive the Principal of the ability to act as he or she wishes. The Principal requires no permission from the Agent.

    If the mind or health of the Principal deteriorates to the point of incapacity, then evaluation for a Guardianship might be in order. This is typically a difficult process. Additionally, the Guardian is still charged with a fiduciary duty and responsibility to the incapacitated person. The Durable POA may allow you to act in more the role of Guardian, but typically only after the person has been declared incapacitated (Hence, leading you back to the Guardianship process).

    The bottom line is that nothing in the POA gives someone the power to save a loved one from their own poor decisions. Unless specifically orderd by a Court, people are free to make their own decisions, even bad ones.

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  • I fell in my neighborhood and broke my ankle due to broken/uneven pavements that were recently made. Do I have a case?

    There are town homes that are still being constructed and the pavements continue to get uneven, unlike the first few town home that were made a couple of years back.

    Jason’s Answer

    The answer is maybe. You have not provided enough facts to determine the answer one way or the other. A lot depends on the case law that has developed in your area (Florida) with regard to this type of case. What was your legal status on the property as an individual (i.e. invitee, trespasser, etc.)? Who owns the property? It sounds like it is residential, but still under construction. Is there something the construction company should have done to safeguard against a dangerous condition that it may have created?

    I recommend that you sit down with an attorney immediately. Many personal injury attorneys will give you a free consultation to discuss this very question. If you have a case, many personal injury attorneys will take your case on a contingent fee basis (in other words, they do not get paid unless they recover something for you). You can use the Avvo "Find a Lawyer" tool to locate an attorney near you.

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  • Am I entitled to a settlement from the insurance company?

    I was involved in an auto accident several months ago. The other driver was found to be at fault and his insurance paid me what my pickup was worth since it was totaled and they have also paid for part of my physical therapy. My therapy is finis...

    Jason’s Answer

    The first thing I would suggest is that you obtain competent legal counsel in your area that focuses on personal injury. They may offer you a settlement in exchange for a release, but there is no way to know whether the settlement offer is fair unless you can put the offer in context. By "context" I mean any variety of factors which would include, but not be limited to, the nature and extent of your injuries, the apportionment of liability, the "value" of similar cases. Unless you are intimately familiar with these factors, there is no way for you to determine on your own if the settlement offer is fair.

    However, I will note that many insurance companies are not necessarily anxious to offer a settlement on a case without proper development (meaning accumulation of treatment notes and records, and/or medical narrative reports) and a little arm twisting from an attorney. Insurance companies do not want to part with money willingly in many occasions. This is all the more reason to seek the guidance of an experienced attorney.

    In short, I would recommend hiring an attorney as soon as possible. You can always use the Avvo "Find a Lawyer" search to locate someone in your area.

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  • My father in law is the Administrator of the Estate of my deceased intestate wife. How does that legally affect me?

    I lost my wife in death due to medical malpractice. I was not in the states when that happened. so my father-in-law went ahead found a lawyer to sue the hospital. a few days later- after I arrived- the lawyer asked him to have me sign a Letter of ...

    Jason’s Answer

    This is not my area of specialty. Therefore, I would recommend that you sit down with a local attorney to further disucss this issue.

    That being said, generally a letter of renunciation only renounces any right you may have had to be the administrator of the estate. Generally speaking, it is the administrator who will make decisions regarding the case and whether or for how much to settle.

    Renunciation as administrator would not alter the laws regarding who is a beneficiary of the estate where the decedent died intestate. Thus, if you were a beneficiary before (and as a surviving spouse I would surmise you would be), you would still be a beneficiary.

    Nevertheless, I would still recommend that you discuss the matter further with an attorney local to you; and the sooner, the better.

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  • I filed a false police repot do to an accident and was driving on a susspended licence

    was in an accident where someone puled in front ofme and slamed on te brakes. i started to "fishtail" and hit the center wall. i came to rest on the other side of the highway in th emergency lane and left the seen do to my licence was susspended. ...

    Jason’s Answer

    IMMEDIATELY consult with a criminal defense attorney. Say nothing to anyone else on the face of the planet until you talk to an attorney first. Additionally, do not post anything additional regarding the facts of the situation on this or any other website.

    It is a bad situation. Avoid making it worse and hire competent counsel in your state immediately.

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  • I am a paralegal and I have power of attorney for my friend, can I represent my friend in a workers compensation hearing?

    My friend is currently going through a workers compensation case and he has to have a hearing. He has deep personal feelings about his past employer as well as what is happening. His past employer was not just his employer but his friend and he ...

    Jason’s Answer

    Obviously, each state is different on this. Most states will not allow you to represent your friend unless you are an attorney licensed to practice law within the particular jurisdiction.

    A power of attorney does not and would not change this answer. A power of attorney allows you to execute documents (and other such powers that are enumerated in the document) on behalf of the principle. It is not a substitute for a license to practice law. Taking such action on behalf of your friend may well be considered the unauthorized practice of law. If a judge or court recognizes what is going on, most will simply instruct you that they cannot hear you on the matter.

    Nevertheless, the rules may be different in your jurisdiction and I would defer to Connecticut counsel. I would suggest, however, that your friend hire an attorney to more firmly answer this question and other questions your friend may have in the future.

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  • What is the job of a defensive lawyer in court?

    I am studying law for my 10th grade class and we are doing a case about if William Shakespeare was fraud or he really wrote his plays I had been assigned a lawyer and would like to know what kind of questions i would need to ask to defend him as t...

    Jason’s Answer

    I would suspect that for a 10th grade class assignment this level of detail is not required. I do applaud your efforts to go the extra mile. As a defense attorney, you should realize that you have an important edge beginning a case. You do NOT have the burden to prove anything.

    Rather, it is your opponent who has the burden to prove his/her case. As my colleague pointed out, civil and criminal standards differ. The criminal prosecution standard is "beyond a reasonable doubt." The civil case standard generally applicable to common law fraud in most states is "clear and convincing evidence." The third standard, not really applicable for you, is "preponderance of evidence."

    I generally describe it to people in terms of percentages. Preponderance of evidence is 51% in favor of the plaintiff (or just tipping the scales); Clear and convincing is 75% in favor of the plaintiff; and beyond a reasonable doubt is 95% in favor of the prosecution. (These percentages are not recognized by any authority, but are merely used as a descriptive tool to help lay people understand).

    SO WHAT IS THE POINT OF ALL THIS? Understand your burden of proof and it helps you to decide how aggressive you want to be. REMEMBER, you have the burden to prove nothing. So as a defense attorney, your job is to try to discredit and destroy evidence submitted by your opponent. Attempt to make their witnesses look unreliable or biased; call into question how evidence was obtained. If you have the ability, try to exclude their evidence as improperly obtained. It is not your job to prove the innocence of your client, only to sabotage your opponent from making their case (ethically, without lying, within the relevant rules of procedure and applicable trial practice).

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  • Can I still get a citation even though I got my accident report?

    I got in a car accident with a sheriff's car. I got my report and it stays that it was my fault (I was listed as Unit 1). But in the citations section it says none listed. The contribution factors were failed to yield, too fast for conditions, other.

    Jason’s Answer

    Being found "at fault" in a traffic accident and being issued a traffic citation do not necessarily always go hand in hand. That being said, if you were involved in an accident and the police were present at the scene yet issue no summons, it is unlikely that you will later receive one.

    Nevertheless, it can still happen. You could conceivably receive a summons in the mail. Different states have different laws regarding WHEN this could occur. I will defer to Georgia counsel on statute of limitations issue. However, in New Jersey moving violation citations have a MUCH shorter statute of limitations period on when they can be issued.

    If you receive a ticket in the mail, I suggest immediately contacting a local attorney to assist you. Also, even though your question does not ask, I would also make sure your insurance company is informed of the accident.

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