No. There are several types of fee arrangements, and most of them must be put in writing.

If the fee arrangement is for a contingency fee — which means the attorney will get a percentage of the settlement if you win the case — the agreement must be in writing. It must include, among other things, the agreed-upon percentage.

With non-contingency arrangements, the fee agreement must include the lawyer’s hourly rate and other standard rates, fees and charges that would apply to your case. It also must explain the general nature of the services that the lawyer will provide for you.

Sometimes it is impossible for a lawyer to know exactly how much time your case will take. You can, however, ask the lawyer to include an estimate of the time and costs in a written fee agreement or letter. But remember that many unexpected factors could drive up the cost. For example, your case might involve a cross complaint. This means that the person you are suing is also suing you. A cross complaint could affect the type and amount of the lawyer’s fee.

Apart from any fee you may pay for your first meeting with a lawyer, you probably will be charged either a fixed, hourly, retainer, contingency or statutory fee.

Fixed fee. This type of fee, sometimes called a standard fee, is commonly used in routine legal matters. For example, a lawyer may charge all clients the same amount to draw up a simple will or handle an uncontested divorce. Legal clinics often use this kind of fee arrangement. Before agreeing to a fixed fee, find out what it does and does not include and if any other charges may be added to the bill.

Hourly fee. Some lawyers charge by the hour, and the amount can vary from lawyer to lawyer. Ask the lawyer to estimate the amount of time your case will take. Suppose you contact three lawyers, and one charges more per hour than the others. You will need to decide whether this lawyer has the skills or experience that could bring your case to a faster solution. Remember that circumstances may change. Your case may take longer to handle than the lawyer initially expected.

Retainer fee. This kind of fee can mean different things to different people. Make sure you understand your particular fee agreement.

A retainer fee can be used to guarantee that the lawyer will be available to take a particular case. This could mean that the lawyer would have to turn down other cases in order to remain available. With this kind of retainer fee agreement, the client would be billed additionally for the legal work that is done. If the fee agreement is a true non-refundable retainer agreement, you may not be able to get your money back — even if the lawyer does not handle your case or complete the work.

A retainer fee also can mean that the lawyer is “on call” to handle the client’s legal problems over a period of time. Certain kinds of legal work might be covered by the retainer fee while other legal services would be billed separately to the client.

In addition, a retainer fee sometimes is considered a “down payment” on any legal services that the client will need. This means that the legal fees will be subtracted from the retainer until the retainer is used up. The lawyer would then bill you for any additional time spent on your case or ask you to replace the retainer.

Contingency fee. This kind of fee is often used in accident, personal injury or other types of cases in which someone is being sued for money. It means that you will pay the lawyer a certain percentage of the money you receive if you win the case or settle the matter out of court. If you lose, the lawyer does not receive a fee. Either way, though, you will have to pay the court costs and certain other expenses. Depending on the circumstances, these charges could be quite high. Ask the lawyer for an estimate of such costs. In some cases, the lawyer may pay some of these costs for you when they are due using money that you receive from the case.

If you agree to a contingency fee, make sure the written fee agreement spells out the lawyer’s percentage and whether his or her share will be figured before or after other costs are deducted. This can make a big difference. Suppose, for example, you were awarded $20,000 in a personal injury case and your lawyer was entitled to 40 percent. Court costs and other expenses amount to $2,000. If your lawyer’s share is figured after the $2,000 is deducted, the lawyer will receive 40 percent of $18,000 — or $7,200. You will receive $10,800. But if the lawyer’s share is figured in before costs are deducted, the lawyer will get 40 percent of $20,000 — or $8,000. After the $2,000 in costs is deducted from the remaining amount, you will get $10,000.

Contingency fee agreements must state, among other things, whether you will be required to pay the lawyer for related matters (matters not specifically covered in the written fee agreement) that might come up as a result of your case. In most cases, the agreement also must note that the attorney’s fee is negotiable between the attorney and the client — not set by any legal statute or law.

Statutory fee. The cost of some probate and other legal work is set by statute or law. For certain other legal problems, the court either sets or must approve the fee you will pay.

from the California State Bar

Post to Twitter

A lawyer referral service refers potential clients to attorneys. This means that if you want to talk to a lawyer, a lawyer referral service is a good place to call. The lawyer referral service staff will interview you and, if you have a legal problem, will try to match you with a lawyer who is experienced in the appropriate area of law. You will then see the lawyer for an initial consultation or speak to the lawyer on the phone.

In California, lawyer referral services must be certified by the State Bar and conform to California Supreme Court standards in order to protect clients.

How can a lawyer referral service help me?

If you need legal help, a certified lawyer referral service can put you in touch with a lawyer who can help you with your problem. If your problem can be resolved without a lawyer, the service may try to provide information or the names of other organizations or agencies that may be able to help you.

How does a lawyer referral service work?

When you call a lawyer referral service, you will be asked about your situation. If you have a legal problem, the lawyer referral service will arrange an initial consultation for you, or give you the name and number of a lawyer you can contact directly to arrange a consultation. There is usually a small charge for this consultation, but it may in some cases be free. After the initial consultation, it is up to you whether or not you want to hire the lawyer.

from  California Bar Association

Post to Twitter

What is estate planning?

July 10th, 2015 | Posted by admin in Estate Planning - (0 Comments)

Estate planning is a process. It involves people — your family, other individuals and, in many cases, charitable organizations of your choice. It also involves your assets (your property) and the various forms of ownership and title that those assets may take. And it addresses your future needs in case you ever become unable to care for yourself. Through estate planning, you can determine:

  • How and by whom your assets will be managed for your benefit during your life if you ever become unable to manage them yourself.
  • When and under what circumstances it makes sense to distribute your assets during your lifetime.
  • How and to whom your assets will be distributed after your death.
  • How and by whom your personal care will be managed and how health care decisions will be made during your lifetime if you become unable to care for yourself.

Many people mistakenly think that estate planning only involves the writing of a will. Estate planning, however, can also involve financial, tax, medical and business planning. A will is part of the planning process, but you will need other documents as well to fully address your estate planning needs.

You will discover that estate planning is a dynamic process. As people, assets and laws change, it may be necessary to adjust your estate plan to reflect those changes.

The State Bar of California

Post to Twitter

Intellectual property rights

July 3rd, 2015 | Posted by admin in Uncategorized - (1 Comments)

Intellectual property rights include patents, copyright, industrial design rights, trademarks, trade dress, and in some jurisdictions trade secrets. There are also more specialized varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in U.S. law.

A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process.

A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or “works”.[15][16] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.

Industrial design rights
An industrial design right protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.

Trade dress
Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.

Trade secrets
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. In the United States, trade secret law is primarily handled at the state level under the Uniform Trade Secrets Act, which most states have adopted, and a federal law, the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831–1839), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes. (The statutory penalties are different for the two offenses.) Trade secret law varies from country to country.

Post to Twitter

Typical Family Law Areas

June 26th, 2015 | Posted by Todd S in Uncategorized - (0 Comments)

Divorce (Dissolution of Marriage)
Divorce, also known as dissolution of marriage, is the process of ending a marriage and properly allocating separate and community property. It can also involve issues including custody, visitation rights, child and spousal support, and domestic violence. Divorce can be resolved within a matter of months if the parties have resolved all relevant issues and move quickly to complete and file necessary settlement paperwork. Or it can be a much longer process requiring hearings on one or more of the above issues and a trial. Some issues, such as those involving children, can continue beyond the period when the divorce becomes final.

Property Issues
Family Courts can divide assets and debts involving items like real property, banks accounts, investment accounts, retirement accounts, and miscellaneous personal property (cars, jewelry and furniture, credit card debts and student loan debts). California law states that community property shall generally be divided equally at time of divorce. Community property includes assets and debts acquired by parties between the marriage and separation date. Separate property is property acquired by one of the parties outside of this time span, though this is not always true. For example, property acquired during the marriage by one party through inheritance could be that party’s separate property. If properly written to comply with the family law code, community property and separate property may also be changed in character through agreement. Child and Spousal Support
In California, child support is determined by statutory guidelines. The amount depends on several mandated factors, including the incomes of each parent and percentage of parenting time each parent has with their child(ren). The Court can decide to vary from the guidelines based on discretionary factors. Child support, like spousal support, can be modified by filing an appropriate motion based on a change of circumstances like increased/decreased income or birth of additional children now in that party’s household.

California Family Code Section 4320 states factors which the Court must consider in determining spousal support requests. They are more controlling for long-term support (support ordered at time of judgment), then for temporary support orders (ordered between the time a family law case is filed and judgment). These factors also apply to attorney’s fees awards. They include: ability of the potential supporting party to pay support, ability of the potential supported party to work, and need of the potential supporting party for such support. 

Child Custody and Visitation Rights
Child custody can be divided into legal custody (decision-making authority) and physical custody (care and control, usually equating to when the child resides with a parent). One parent can have sole legal and/or physical custody. Or parents can share what is called joint custody in one or both of these respects. While not having legal meaning, a parent who has most of the physical custody time is often said by the courts to have primary physical custody. Subject to statutory guidelines, custody may be granted to a nonparent. The primary concern for the court in awarding custody is the child’s health, safety and welfare. A custody order also aims to let both parents have frequent and continuing contact with their children after separation.

In making a custody order between parents, the court must also grant a noncustodial parent reasonable visitation rights unless it is shown that visitation would be detrimental to the best interest of the child. Such visitation is usually ordered prior to a dissolution judgment unless factors such as child abuse or domestic violence by the noncustodial parent are present and contrary to the child’s best interests. An order completely withholding a parent’s visitation privileges may issue only upon a finding that it would be detrimental to the child’s best interests. Supervised visitation is sometimes ordered in borderline situations. Otherwise, courts usually have broad discretion in defining a parent’s reasonable visitation rights in a child’s best interests and establishing a visitation schedule. Depending on the circumstances, such visitation may start out as mostly occurring on weekends and some weeknights or involve greater periods. Vacation and holiday time is also often factored into such orders.

(Premarital) Prenuptial and (Marital) Postnuptial Agreements  
California law recognizes prenuptial agreements if they meet related legal requirements. Parties must disclose assets in related financial documents and complete a related settlement agreement for the Court’s review and signature. Such agreements can be helpful in clarifying the outcome of potential division of property issues involving real property and various types of personal property. They can also include agreements on issues involving custody issues and potential payment of spousal support. 

Postnuptial agreements, as opposed to prenuptial agreements, are those that occur after the marriage of the parties but before the commencement of dissolution proceedings. These agreements cannot promote dissolution of marriage, waive or limit child or spousal support, impinge on the court’s custody-related jurisdiction, or provide fault-based penalties contrary to California’s designation as a “no-fault” state. As a practical matter such agreements must be in writing. Various types of real and personal property are often the subject of these agreement. 

Restraining Orders
Protective orders and other domestic violence prevention orders may issue in a domestic relations status action or independently under the Domestic Violence Prevention Act (DVPA). They may be obtained ex parte (within a day or two of request) to prevent a recurrence of domestic violence pursuant to affidavit. Types of conduct subject to restraining orders include verbal and written harassment as well as physical assault. They may protect an abused spouse and/or his/her children. A temporary order is usually followed by a permanent restraining order hearing about 10 days later. If granted, a permanent restraining order usually is issued for a period of 6 months to 5 years and is potentially renewable at the end of the ordered period.  

Post to Twitter