Using threatening or violent language at work, is never advisable.  But recently a federal appeals court seemed to suggest that workers could be given some leeway with their speech in certain circumstances.  Even comments that could seem to threaten violence to a boss, might be viewed in context as not amounting to an actual, physical threat.

In this case, electricians on a work site were given two, 15-minute break periods each day in an area away from the dangers of the work.  Due to the circumstances of the job itself, the breaks became longer than the period allowed, and management stepped in and issued warnings.   Two of the workers objected and told the supervisor that if they were laid off things could “get ugly.”  And one of them further said that the supervisor should bring his “boxing gloves.”

The two were fired, but were later reinstated, because the National Labor Relations Board (NLRB) held that they were not really issuing physical threats of violence.  Instead, their comments were figures of speech and not to be taken literally given the context and circumstances.  This decision was supported by the federal appeals court.

It is no doubt a tough balance to maintain.  Workers need some leeway to be able to make an impulsive comment in the heat of the moment, and some of this speech is protected.  On the other hand, businesses do not want to take a threat lightly and be sorry later they did not act on it to protect workplace safety and order.

The decision to reinstate the workers relied on the context of the comments.  While they said that the reference to “boxing gloves” indicated that it was a metaphor, and not an actual threat, they did caution that the same words in a different context could have a different result.  In fact, many of these types of expressions could be viewed either way in light of where and how they were said.

In this case, the fact that the comments were brief and spontaneous, and came on the heels of hearing news that made them fear for their job safety, went a long way to showing they were not intended as physical threats.  Instead, the comments were viewed as vocal resistance to a policy that these workers thought was unfair, unsafe, and could cost them their jobs.

Again, this is not to say that using words that convey violence or threats is the way to go when you are upset at work.  But at least for these workers and possibly others, if it happens, your words alone might not necessarily be the sole factor in determining your intentions.

1/27/12

If you get a traffic ticket you may feel it is a minor matter, and not worth hiring an attorney.  But not all traffic tickets are created equal.  A relatively minor traffic violation will give you options that do not include court and you generally do not need a lawyer.  But others require you to appear in court, and defend the charge.  And the consequences if convicted can be significant.

The traffic violations that require court appearance are punishable by a fine, but they also can involve jail time in addition to a fine.  You can also risk losing your driver’s license if convicted, and needless to say, your insurance costs could skyrocket.  So even though it may be “just” traffic court, the risk of loss if convicted can be just as devastating as a conviction for other types of crimes.

Included in the category of traffic offenses where you must appear in court are:  driving without insurance, speeding between in excess of 30 mph over the limit, failing to yield to emergency vehicles (Scott’s law), DUI, driving on a suspended license, reckless driving, and more.

For these cases, it makes sense to go into court with an attorney to be sure you are getting the right advice on how to handle your situation.   Your ticket should indicate a court date at least 14 days from the date it was issued.  Speaking with an attorney well in advance of that date can give you the best chance to be prepared.

Missing the court date that was assigned can cause different actions to be taken against you, depending on what the charge is.  The consequences can include having a judgment of guilty entered against you, having your driver’s license suspended, or even having a warrant issued for your arrest if it was a misdemeanor traffic offense.  In any event, it is likely to cost you money in court fees to try to fix the damage that can be done by missing your court date.

When you are dealing with these types of traffic violations, the downside risk can be quite significant.  Preparing properly to defend your case can go a long way to protecting your future.

1/20/12

If you are scheduled to testify at trial, you are probably very nervous. That’s normal. Just remember to listen to your attorney because he or she knows your case (hopefully!) and is on your side (also hopefully!). Also, here are 8 things to think about before you take the stand.

1. Practice makes perfect and it’s perfectly OK to rehearse. Your lawyer should take the time to review with you the questions he or she is going to ask you as well as possible questions from the other side. There should be no surprises. You should not be surprised by what you are asked by your lawyer and your lawyer should never be surprised by your answers to any questions.

2. Keep your answers simple. A good attorney will ask yes or no questions and you should answer with a yes or no. When you offer too much information, you run the risk of having your words twisted.

3. Don’t anticipate a question. Stay alert, listen and answer the question posed. Witnesses sometimes begin to answer a question before it’s been fully asked and that can cause you to be misunderstood or offer too much information. Rather, take your time, listen to what is said and be sure of your answer.

4. You only get one chance to make a first impression to a judge or jury. So, dress appropriately. Wrinkled clothing and an untidy appearance are simply not going to bode well with a Judge or jury. If you present an appearance of respect to the court, you will get respect and, in turn, your testimony will more likely be respected and believed.

5. Relax and speak loudly and clearly. A strong, clear voice will be an asset to you.

6. Be patient. While the Judge and lawyers are hashing out the technical stuff such as motions being filed or side conferences with the Judge, try to sit tight. You are getting your day in court and your chance to tell your story. So, let the lawyers and Judge do what they have to do even if it holds you up.

7. It’s ok to bring a friend or family member along for support. If they aren’t also a witness, they are allowed to sit in on the trial and it might help to have a friendly face to look at.

8. Last but certainly not least – Tell the truth (The whole truth and nothing but the truth). Do not embellish or say what you think the Judge or jury wants to hear. It could severely hurt your case because it gives the other side’s attorney a chance to pick apart the nuances of your testimony. Also, if you are asked a question you don’t know the answer to, say that you don’t know. If you don’t understand a question, just say that you do not understand. In a word, be honest.

A whistleblower is a person who uncovers fraud against the government and brings suit on behalf of the government.

For example, if you work for a health care provider and you observe that employees are exaggerating claims of time spent attending to Medicare patients, you may have a potential whistleblower action because the government is being defrauded.

However, if the employees were exaggerating claims of time spent attending to privately insured patients, it would still be unethical but it would not be a whistleblower case because the government is not being defrauded in that scenario.

Another example of a whistleblower case would be where you work for a manufacturer that is knowingly providing defective equipment to the military.

Whistleblower cases, also called by the Latin derivative “qui tam” cases, are filed under the Federal False Claims Act (where the federal government is being defrauded) or, in Illinois, under the Whistleblower Reward and Protection Act (designed to protect the state government from being defrauded).

These laws allow the whistleblower to receive a portion of whatever penalty the wrongdoer eventually has to pay the government. This is typically about 15 to 25% under the Federal False Claims Act. Under the state statute, it can range anywhere from 10 to 30%.

These laws also contain provisions to protect the whistleblower in the event of retaliation by his or her employer. For example, if the employee is discharged, demoted, suspended, threatened or harassed for bringing the situation to light, the whistleblower can obtain relief under the statute.

Under the False Claims Act, you cannot bring an action under the statute without attorney representation. Qui Tam cases can be extremely complex and it is important to hire an attorney who handles these types of actions.

Under both the state and federal statutes, the government, not the defendant, is first served with the complaint and has the option to decide whether or not to take over pursuit of the case. If it chooses not to, the whistleblower may proceed on behalf of the government. An experienced qui tam attorney will be aware of such procedural nuances in these types of actions.

Unlike many attorneys that charge their clients based on an hourly rate, most qui tam attorneys work on a contingency basis. So, if you “win,” your attorney gets a percentage of the recovery. Otherwise, he does not recover anything. Also, while litigating the case, your attorney should pay all fees and costs associated with the litigation.

What is consumer fraud?

Unfortunately, there are many different ways you can be harmed by consumer fraud. If you buy something that does not work as advertised, or if you are purposefully overcharged for the item, you have suffered consumer fraud. You may also be harmed by a fraud scheme, such as paying for sweepstakes winnings or internet actions and receiving nothing in return. Finally, identity theft is also considered consumer fraud.

What is a class action lawsuit?
A class action suit is one where many plaintiffs suffer the same injury and decide to have their cases tried together against the defendant. Class actions are a useful tool for individuals who feel they have been wronged but who might not consider hiring a lawyer on their own, perhaps because the small amount of money in. For instance, if you purchased a magazine subscription from a door-to-door vendor but never received any magazines, you may have been a victim of consumer fraud. Since you only spent $10 or $20 on the subscription, though, you might not go to the trouble of suing the seller. If you are part of a class action, though, a lawyer can try your case along with all other similarly defrauded consumers with very little participation from you.

When is a class action the best type of lawsuit for my consumer fraud case?
There are three main considerations that must exist for a class action to be the right format for your case:

1. Numbers – there must be enough other people who suffered the same harm. This is often true with consumer fraud cases because the defendant will typically perform the same fraud on many individuals.

2. Common problem – all the people harmed must have the same legal issues against the defendant. This is also typical in consumer fraud cases because each person suffers the same type harm due to defendant’s fraud.

3. Adequate representation – the lawyer must show that a class action will be the best way to represent the class of plaintiffs. This can be particularly true with consumer fraud cases – since each plaintiff was defrauded in the same way, combining all the cases is a good way to represent everyone.

What are the responsibilities of the lead plaintiff?
A class action suit can have hundreds or even thousands of plaintiffs; however, only one is the “lead plaintiff.” Generally, the lawyer will pick a lead plaintiff whose situation does a good job representing all the plaintiffs, and who will be able to testify well as a witness at trial. The lead plaintiff will have more responsibilities than the other plaintiffs, but may get a bigger reward as well.

If you are the lead plaintiff, in addition to testifying at trial, you will be deposed before trial. A deposition is a meeting of up to three hours where the defense attorneys can ask you questions. You would also have more meetings and phone calls with your lawyers than the other plaintiffs. As lead plaintiff, your name will be listed on the lawsuit, and you will likely receive a larger monetary award or settlement than the other plaintiffs in recognition of the extra time you spent on the case.

What should I look for in a class action attorney?
It is important to find an attorney that has a long history with class action suits. There are many state and federal rules that apply to class action only; a lawyer who is not familiar with these regulations could cause you to lose your case just by missing a deadline or procedure. In addition, you must find a class action attorney who has a proven record of success with consumer fraud. Finally, no matter what area of law, you should be sure your lawyer communicates with you truthfully and treats you with respect and consideration.

How much does a class action attorney cost?
Class action lawyers usually work on a contingency fee basis. This means your attorney will not get paid until you receive a monetary award or settlement. The amount your attorney receives can depend on several factors including the number of plaintiffs involved in your case, the riskiness of the case and the expected financial settlement at the end. A typical contingency fee for your lawyer is 30% of the award or settlement.

It makes sense that a class action lawyer would work on a contingency basis. In a class action, many plaintiffs do not even know they are involved in a case until the lawyer notifies them. It would be much more time consuming, and perhaps even impossible, for the lawyer to wait for all the plaintiffs to hire and pay him or her before beginning work on the case.

Whether you have a will or not, your estate – what you own at the time of your death – will be distributed via a court proceeding. The difference is that when you have a will, you decide who gets your property; without a will it is decided for you.

A will can name who will get your personal possessions, real estate, cash, etc. After your death, your will is filed with the court. This begins the process of probate, which is just another name for distribution and settlement of your estate.

A will is not a guarantee that there will not be a dispute about who gets what. There can be a defect in your will that you didn’t realize. Or it can be contested by a family member. Both of these situations will make the probate process long and perhaps contentious. While you cannot control what people do after your death, an experienced lawyer can help you devise a solid plan and an airtight document to minimize confusion when it’s interpreted later.

In addition to distributing property, a will also names an executor of your estate. This is a person who will be in charge of the process of administering your estate, along with a lawyer. They will work together to make sure everything gets settled.

A will also can name a guardian for your children, and set up a trust where the assets from your estate can go after probate. A trust can hold money for your children, for example, until they are of a certain age. A will also can dictate how estate taxes and debts are to be paid.

If you do not have a will, your property still will be distributed. But instead of following your wishes, the court will follow a generic distribution method set by Illinois law. While this method may match your wishes, it may not, which is why a will is considered such an important document.

Without a will, the court will give your assets to your family members, starting with those considered closest to you. The first step is to give your spouse half, and your children the other half. If you have no children, your spouse will get everything. If you have no spouse, your children will get everything. If you have no spouse and no children, your estate will be divided among your parents and/or siblings. The list goes on to include more removed family members if need be.

Your will can be modified any time during your life, so long as you are considered mentally competent to do so.

For more information on Illinois probate laws see http://www.findgreatlawyers.com/2Probate.htm.