LAWbrary

GWB LAWbrary

Personal Injury

Q: What does personal injury mean?

A: Most of us have heard the phrase personal injury, but many people may not be sure exactly what it means. A personal injury refers to a situation where someone has been injured due to a wrongful or negligent act of another. A personal injury that results in death is called a wrongful death.
In a personal injury claim, the injured person, or the family or heirs of the person killed, seeks money from the person or company that wronged them as compensation for the harm. This claim may assert negligence, which means that the wrongdoer was careless or acted unreasonably dangerous. An automobile accident case is a common type of negligence claim. Another example is a slip and fall case, which is called premises liability. Products liability, as the name indicates, refers to harm caused by a defective product.

Q: Who will pay for my medical bills, lost wages, and physical limitations?

A: In most cases, the wrongdoer’s insurance company ultimately will be responsible to pay for all of your medical bills, lost wages, and other losses related to your personal injury. It can often take some time to obtain these payments. In the interim, your own insurance policy, be it automobile insurance, Homeowner’s insurance, or health insurance as may be applicable, may help pay for medical bills and/or lost wages. In the absence of your own insurance, your attorney may be able to make lien agreements with medical providers to treat you but wait for payment until your case settles. Sometimes, a loan secured by your claim can be obtained to help cover losses and expenses until your case settles.

Q: What is a wrongful death case?

A: If someone dies as a result of another person’s carelessness or recklessness, the surviving family members, or heirs, may bring a wrongful death claim on behalf of their deceased loved one. Surviving family members may claim loss of love, affection, companionship, guidance, and financial support. Different states have different laws governing how these claims are made and which family members or heirs may actually file the claim, so be sure to check with your attorney in your state.

Q: Do I need a lawyer to make a personal injury claim?

A: No. There is no legal requirement that a lawyer be used to make a claim. However, studies have shown that personal injury claims, on average, settle for much more money where an attorney is involved. There are many laws and nuances that affect the value and success of a personal injury claim. Insurance companies know those things. It can be very beneficial to have an experienced attorney on your side to recover the full and fair value of your claim.

Q: What is the Statute of Limitations and how does it affect me?

A: The Statute of Limitations (SOL) refers to the amount of time you have to file a lawsuit from the date of your injury. If you and the defendant (the wrongdoers or their insurance company) are unable to reach a settlement agreement, you must file a lawsuit to assert and preserve your claim. The SOL periods vary from state to state. Make sure you check with your attorney about your individual case, as there are different SOLs in different types of cases.

Q: What Do I Do if I Am Involved in a Car Accident?

A:
1. Report the Accident. After an accident, call the police, whether you or any other person involved feel injured or not. Report the accident to your insurance company as soon as possible. Except in very minor collisions, do not give detailed statements to your insurance company without first consulting an attorney.

2. Document the Scene. Make diagrams and take lots of photos—of the cars involved, any skid marks, any noticeable injuries, and any other property damage. Ask witnesses to stay until police arrive.

3. Seek immediate medical attention. If you feel injured in any way, seek immediate medical attention. Failure to do so could be a hindrance to any future personal injury case you might have.

4. Write down the details. Make sure you write down as much of the accident as you remember as soon as possible, as details can be very important and are easy to forget unless written down.

5. Keep your cool. Keeping a level head will help the police document the scene and the facts. If you are in a calm mental and emotional state, you can better assist anyone who is injured.
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Real Estate Law

Q: Do I need a contract to sell a home?
A: A contract to sell a home (called a real estate purchase contract or REPC) is always a good idea, but a valid deed by itself is sufficient to transfer ownership of a home. A REPC allows you and the buyer to agree to terms regarding the purchase price and other payment arrangements, settlement and closing, final walk-through and inspection, contract deadlines, and any other necessary conditions or stipulations. Although a REPC should be used, you still need to execute a deed conveying the home to the buyer for the transfer of ownership to be complete.

Q: What rights do I have in a boundary dispute?
A: A property’s legal boundaries are determined by the property’s legal description. Typically, a property owner is entitled to the property boundary contained in the legal description. Sometimes, the legal boundary can be adjusted by a court based on the conduct of the adjoining property owners, or the property owners can agree to a boundary different than the legal boundary. If you are involved in a boundary line dispute, you should have a surveyor determine the location of the disputed boundaries on your property, and you should consult a real estate attorney to determine the available options in your specific situation.

Q: Do water rights automatically transfer when I buy land?
A: You should never rely on an automatic transfer of water rights when you buy land. If you expect to receive water rights with your purchase, those water rights should be listed in the deed and the real estate purchase contract (if there is one). Depending on the state in which the property is located, water rights that are being used for a beneficial purpose might automatically transfer with the property unless expressly reserved. Check with a water law attorney to determine the status of the law in your state. Regardless, any conveyance (or non-conveyance) of water rights associated with real property needs to be specified in the real estate purchase contract and the deed.

Q: How do zoning changes affect me?
A: A zoning change changes the ways that real property can be used (commercial versus residential, etc.). If you own property in an area where a zoning change has occurred, the way in which you can use your property will be affected. However, if you establish the use of your property in a certain way prior to the zoning change, you can usually continue to use your property in that way even if that use is prohibited by the zoning change. But if you discontinue the now-prohibited use or try to expand the now-prohibited use, the new zoning ordinances will prevent the prohibited discontinued or expanded use.

Q: What protections do I have against Mechanic’s Liens?
A: A mechanic’s lien is a security interest in real property obtained by contractors, suppliers, and others that have worked to improve the property. If these individuals are not paid for the work they do on the property, they maintain their security interest in the property, which is similar to the interest that a bank would have in the property when the property is used as collateral. The law governing mechanic’s liens is created by state law, so each state’s approach is different. Generally, individuals seeking a mechanic’s lien must file their mechanic’s lien for it to be valid. Also, property owners can often be reimbursed when they must contest wrongful liens (liens that are not valid because the person was actually paid or because the person failed to file a lien). The best way to protect yourself against mechanic’s liens is to require—at every stage of construction—the general contractor, every subcontractor, and every supplier to sign a lien waiver before they are paid. This requirement should be agreed to in the construction contract (see below for discussion of construction contracts). A lien waiver is an acknowledgement by the contractor or supplier that they have been compensated for the portion of work for which they are being paid, and they agree to waive any lien on the property originating from that work.

Q: How does a well-drafted contract assist in the construction process?
A: A construction contract helps avoid the common pitfalls in the construction process. In a well-drafted construction contract, for example, the owner and the builder can agree on terms regarding the specific design of the construction, who will be responsible for purchasing insurance, who will be liable if liability arises in certain situations, the duties of both the owner and the builder, and the use and release of mechanic’s liens. If you are either an owner or a builder considering entering into a construction contract, you should have your construction contract reviewed to ensure it protects you from unnecessary liability.

Q: What remedies do I have when construction has defects?
A: When construction is defective, your claim will be against the contractors and suppliers that caused the defect. When contractors perform construction, they warrant that the construction is performed in a workmanlike manner, so when a contractor breaches that warranty and causes your construction to have defects, they become liable. Also, construction defects are a breach of the construction contract with the general contractor, which also imposes liability on the contractor. Finally, when an individual working on a construction project causes defects because he was negligent, that individual can also be liable for the defects. Sometimes it is discovered that contractors have fraudulently concealed the existence of the defects, which also imposes liability on the contractors. There are remedies available when construction has defects, but the process to recover damages is complicated because it usually involves multiple contractors and complex construction practices. If you have discovered construction defects on your property, you should contact an experienced construction law attorney.
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Business Formations

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Civil Litigation

I’ve been sued—what do I do now?
Breathe. Don’t panic. We will walk you through this.

The first thing you need to do is call an attorney—no surprise there, given that you are reading a law firm’s website. Nevertheless, it holds true. When a lawsuit is first filed, procedures are very important, procedures that most people likely do not know about. For example, in order to begin any lawsuit, the plaintiff (the person suing) must follow certain rules to notify the defendant (the person being sued) of the suit. When those rules aren’t followed, the defendant can utilize the plaintiff’s mistakes and have the case dismissed without ever addressing the subject of the lawsuit. But perhaps it is even more crucial to understand that all civil lawsuits must be brought within a certain amount of time from the injury giving rise to the suit. If the plaintiff brings the suit even one day late, he has missed his chance to recover. BUT be careful, there is a trap for the unwary! If you, as the defendant, fail to address the late filing—or the defective notice—before you answer the complaint, you completely lose your ability to do so.

Meeting with legal counsel will allow a plan to be developed. This road map will help give assurance and some predictability to your case. You will also better understand the strengths and weaknesses of the legal claims. Being informed will help you make better decisions.

Also, if you choose to proceed without an attorney, be prepared for what is ahead. Unless you are in small claims court (which is far simpler than district court), you will likely be flooded with paperwork: heaps of motions and what the law refers to as “discovery” (how the parties find facts). The discovery period may last for months and, because of the backlog of cases in our district, the whole process can easily span many years. For most people, civil litigation is not a fun process—but most people aren’t attorneys and this is how we get our “kicks.” And with more than 140 years of combined legal experience, chances are we have handled many cases very similar to yours.

Why should I choose a local attorney and how does it benefit my case?
Occasionally, we hear of people seeking out “big-city” attorneys for representation rather than retain a local attorney. But the location of an attorney does not reflect his or her level of competence—though it might affect the settlement/award you will receive. “How might it affect my settlement?” you ask. When you consider that only approximately 2 percent of all civil cases are disposed of by trials, it places much more importance on the attorney’s ability to achieve the highest settlement possible while costing you the least amount of time and money. This is where the local attorney outshines the “big-city” attorney. As local attorneys, we know the judge that has been assigned to your case because we are regularly in his court. We know whether he is persuaded more by case law or by facts: whether he seeks to uphold legal precedent or seeks an equitable or fair outcome. And we can use these valuable insights to influence the opposing party and to maximize your potential settlement.

But perhaps even more important than achieving the best settlement, we also know the opposing party’s attorney. Chances are we have likely worked with him numerous times. We know his reputation and whether he is likely to be cooperative or combative. Perhaps we even consider him a friend, which means that we can probably accomplish more with a single phone call than an unfamiliar “big-city” attorney could accomplish with a lengthy motion—and a phone call is definitely cheaper.

At GWB, we have a solid group of attorneys and a strong reputation in the legal community. Let our years of experience and valuable insights into the local court system be an asset in your legal dispute for you. Your wallet will thank you.

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Divorce and Family Law

Q: Do I need to have any reasons for getting a divorce?

A: Not really. A divorce is allowed even just for general conflict or lack of harmony—referred to as irreconcilable differences. A serious breach of trust such as infidelity is not required. As long as one spouse feels that the marriage is irreparably broken, a divorce may be granted.

Q: Do I need a lawyer to represent me?

A: No. Many people obtain divorces without a lawyer. However, the divorce decree often is not drafted well without an attorney, which sometimes leads to further court proceedings later on to fix or interpret an incomplete or insufficient decree. Further, there are important rights and duties between divorcing couples, and child custody and child support issues can be complicated. The help of an experienced family law attorney can be a huge plus, and can give relief and peace of mind, in most divorce cases.

Q: What is the general divorce process?

A: A divorce case begins when a petition for divorce is filed with the court. The other spouse then must file an answer to the petition if he or she disagrees with the contents of the divorce petition. From there, most courts require a mediation conference to explore the possibility of settlement. If there are children, a parenting class is required in most states. A trial date ultimately is set, and in the meantime hearings are often needed for temporary orders on child custody, child support, alimony (spousal support), possession of property, and responsibility for debt payments until the trial is held.

Q: Can I get temporary orders while my case is pending?

A: Yes. Temporary orders of some sort are needed in most contested divorce cases, especially when the couple has children. Temporary orders usually include provisions for child custody, child support, possession of the marital home, responsibility for debt payments, and other issues necessary to allow the spouses and the children a semblance of stability pending the settlement or ultimate trial of the case.

Q: What if my spouse has committed domestic abuse?

A: Family Court Judges are there to help achieve safety for victims of abuse. Restraining orders, protective orders, preliminary injunctions, and other speedy or emergency orders can be obtained to help ensure that victims are protected.

Q: Is there a mandatory parent education class?

A: Yes. Each state has its own rules and procedures. An attorney can explain your state’s requirements.

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DUI Defense

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Estate Planning & Probate

Q: What happens if a person dies without a Last Will?

A: The law writes a Will for them according to statute. Most people will not like the Will you get done this way. For example, if you have a second marriage, the first $50,000 goes to the surviving spouse, with the rest divided between the surviving and the children of the decedent. I have never met a person who would want it to be just that way.

Q: What should family do after a loved one who has a Last Will passes away?

A: Consult with a qualified probate attorney who can tell you if probate is needed to clear title to the loved one’s property. You may not need a full probate, depending on the nature of the assets, their value, and how the assets are titled.

Q: Does a person have to have a minimum amount of assets to create a Last Will?

A: No. In fact, many write Wills to name a guardian for their children. Many people would not want the people who the law gives preference to, to raise their children. Also, most people have at least some assets and important memorabilia they want to be given.

Q: What is the difference between a Living Will and a Last Will?

A: A Living Will is a declaration of a person’s wishes for end-of-life care. Utah has a relatively new form which designates a Health Care Agent and deals with a number of end-of-life issues, such as organ donation, appointment of guardian, authorization of placement in a skilled nursing facility, assisted living, hospital, etc., and also allows for instructions of end-of-life care. A Last Will deals with final instructions, appointment of a guardian for children, and disposition of assets.

Q: What are the main benefits of a Revocable Living Trust versus a Last Will?

A:
1. Planning your estate to take advantage of available tax planning, where needed
2. Avoidance of family disputes
3. Flexibility of changing the document when you need to
4. No tax filing required for revocable grantor trusts
5. All of these benefits can be accomplished with a Will, but only through an expensive, public, time-consuming process of probate, which unfortunately increases the risks of family disputes. This avoidance of probate, and all of its attendant costs, and potential for disputes in the family, is the main benefit.

Q: How do I decide what’s best for me?

A: There are a number of nuances that will be best discusses with a qualified estate attorney. We recommend a consultation with this kind of specialist. In our firm, we offer a free ½ hour consultation to help you decide what is best for you, including analyzing whether a Trust, or a Will, is best in your circumstances.

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Veteran’s Claims

Q: How can I qualify for veterans disability compensation?
A: The main qualifications are that (1) you have a disability that is service-related and (2) you were not dishonorably discharged from service. A service-related disability can stem from a physical injury (e.g., loss of hearing, loss of a limb, back injury, etc.), a mental injury, or emotional injury, such as Post Traumatic Stress Disorder (PTSD). In addition, a service-related disability can include a previous injury that was aggravated during your active military service.

Q: Where do I go to apply for veterans disability compensation?
A: You can apply for benefits online at the VA website (VA benefits website), by mail to your VA regional office, by phone (1-800-827-1000) or in person at a VA hospital or your local VA office.

Q: Is veterans disability compensation taxable income?
A: No, veteran disability compensation is a tax-free benefit.

Q: Is there an appeals process if I already applied for veterans disability benefits and I was denied?
A: Yes. If your application for benefits was denied, you can appeal the decision to the Board of Veterans Appeals. You must send a Notice of Disagreement (NOD) within one year to your local VA office. This starts the appeals process.

Q: What if I was granted disability benefits but I believe my disability is more severe than the VA rated it?
A: If you feel the VA’s rating decision is too low for your disability, you can appeal the decision to the Board of Veterans Appeals. You must send a Notice of Disagreement (NOD) within one year to your local VA office. This starts the appeals process.

Q: How long does the appeals process take?
A: The VA has had an increase in the amount of applications in recent years due to military operations around the globe. As a result the initial application for benefits can take anywhere from 6 months to over a year. The appeals process can take anywhere from one year to two years.

Q: Can your firm help me even if I do not live near your office?
A: Yes. Gallian Welker & Beckstrom, L.C. has accredited VA attorneys who can assist you anywhere in the United States, regardless of the city or state you live in. Our communication with you can be done over the phone or through video chat services if you do not live nearby. In addition, communication with the VA is done almost all through the mail, so you will not need to appear in person.
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Wage & Employment Law

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