Law Related Articles (176)
Helpful information from an experienced attorneyChildren categories
Bamberg South Carolina Personal Injury (1)
law related articles: Car accidents, Slip and fall, Hurt on the job...
View items...
Personal Injury (122)
Personal injury Claims and General knowledge
Learn and understand the personal injury claims the way attorneys do.
View items...
One of the tougher challenges in any lawsuit is handling the discovery involved. I have previously written about depositions, which are a distinct part of discovery. Depositions, which involve asking parties and witnesses questions under oath with answers being recorded, actually follow the written discovery. This written discovery is the exchange of questions and answers and requests for production of tangible things (primarily documents) and the production. It is a time when the parties must be involved in assisting lawyers with answers to questions and production. This is in any kind of case: Personal Injury car accident cases, family court cases, contract disputes, etc Due to the substantial involvement of parties in Discovery, it’s important to understand the dynamics. The first part of written discovery may (but not always) involve “requests to admit” (RTA) questions of the opposing party. Important to know about RTA is that they must be answered and served back to the other party (or attorney if represented) within 30 days. If not, and similar to defaulting in not answering a complaint in 30 days, the questions are deemed admitted before the Court. They must be answered in 30 days or the effect will be catastrophic for the case. In answering the first mandate is to be truthful. At the same time, the party is not required to go beyond the question asked, but can caveat the answer to leave wiggle room. This is good to send to the other side as it pins them down on certain issues throughout the litigation. The “Interrogatories” are questions parties send to each other, in which the other side must answer. The SC Rules of Civil Procedure offer “standard” interrogatories, which include witnesses, including contact and a summary of testimony to be offered and expert witnesses and associated reports. Important to note is that if witnesses and/or experts are not named during discovery, they will likely be barred from testifying at trial. Parties are limited in the number of questions they ask, but the questions only have to be likely to lead to relevant information, and therefore can cover a great deal. Answers can be supplemented if more information becomes available, and parties can ask further questions as more information becomes available. The “Requests to Produce” (RTP) can be quite labor intensive and frustrating depending upon the case and request. In a manufacturing defects case, it might involve literally millions of pages of documents. Most cases aren’t that onerous with production, but you can get they point of the tedious nature of finding and reviewing substantial numbers of documents to produce to the other side. For both Interrogatories and RTP, the party receiving has 30 days to answer, or be hauled in to court on a motion for the Court to Compel discovery from the side who has not produced it. Sometimes, parties will withhold information/production due to objections about what was asked or requested. For example, parties cannot request discovery the includes attorney-client privilege or work-product privilege. There are other objections, and these usually go before a judge to make a ruling of whether or party must answer. It’s important for the client to be intimately involved in the process of discovery, and ensuring his attorney is fulfilling discovery requests properly and diligently. What transpires during discovery sets up the case to win!
In South Carolina, a problem can arise in the event of loved ones passing away without their estates being probated for over ten years. Up until the ten year point, the courts will allow the regular probating of wills or intestacy probate. After ten years, the only process available to ensure a proper chain of title is with the process of designation of heirs. It doesn’t matter if the person had a will or not, and this process is distinct from the normal probate process. It can be extremely difficult, particularly if the time goes well beyond the ten years. It’s best to consider hiring counsel for this process, and this should be done if the estate involved real estate titled in the deceased person’s name. The process involves multiple steps, and some similar to the regular probate. The person wishing the petition the court to determine heirs must file the Summons, Petition for Determination of Heirs, filing fee, and, if not already filed, a death certificate all with the Probate Court. The Petition should allege all who the heirs were at time of death by alleged facts, which probate law was in effect at time of the loved one’s death (Note that a copy of statute in effect at the time should be attached). The petition should also include allegations as to why probate administration was not done at the time, but being done now. · After the filing of the above documents, the petitioner must then serve pleadings on all interested parties and file proof of service (note: interested parties would include all potential heirs by the law at the time of death). · Respondents/Defendants have 30 days after being served to file their response/answer back to the petitioner. · After the sooner of 30 days having passed, or when the Answers have been filed, a hearing will be set by the court (upon request) 120 days from the initial filing date. Note: If all parties are in agreement to set the hearing earlier, the hearing can be set, keeping in mind that a 20-day notice of the hearing is required. Also note that the hearing cannot be waived even upon agreement. At the said hearing, the petitioner must present testimony from a witness who testifies he knew the decedent most of his life and can testify to there being no other heirs. This is normally more of an issue for male decedents who might have had biological children outside the known family. Following the hearing and the Probate Judge’s determination of heirs, the petitioner or his attorney will prepare an Order for the Probate Judge to sign. Note: If you don’t hire an attorney it is imperative to to record the Order at the Register of Deeds Office if real property was involved. This requires necessary information about the real property, such as property description, derivation, complete. In the end, the determination of heirs ensures that titling of property, particularly real property is not tied up indefinitely, hurting everyone in the decedent’s family. It allows for property to remain with the family or sold with good title.
One of the toughest decisions is whether to bring a guardianship and/or conservatorship action over another family member or close friend. This only comes up when the person needing a guardianship or conservatorship can no longer take care of himself. He is in the category of a “protected person”. In the case of a guardianship, the protected person is no longer able to take care of himself and requires a competent person to make health care and living decisions. In the case of a conservatorship, the protected person cannot handle his finances and requires a competent person to handle the finances and make those decisions. Normally, both actions (Conservatorships and Guardianships) are brought together, as the protected person cannot handle either of those issues. Additionally, normally the person petitioning the court will petition to become both guardian and conservator. A number of things to consider before filing this action. First, the petition for Guardianship/Conservatorship is made with the probate court of the county the protected person resides. Second, it is similar to bringing other suits in probate court. In the case of a Guardianship/Conservatorship, the party seeking the conservatorship will be the Petitioner and the protected person is the Respondent. In South Carolina, a requirement for successfully bringing the action is to have a medical evaluation of the protected person, and the physician’s determination that the Guardianship or Conservatorship is necessary due to the condition of the protected person. Even with that determination, the protected person still has the ability in a hearing to argue against the action (including through counsel). Additionally, notice must be given to all interested parties, which are other family members to the protected person. Each of them can argue against the action, or that one of them should be the Guardian or Conservator. Therefore, seeking a Guardianship or Conservatorship should only come after clear evidence the protected person is in true need of the action. This is an action in which a lawyer is highly recommended. It’s important to remember that if the potential protected person is not yet at the level of requiring the Conservatorship, and he is competent to sign a Power of Attorney (POA), he can give power to another to handle financial matters. The only problem is that the potential protected person can still conduct his own business, potentially to his detriment. Additionally, a POA can be revoked at any time. Sometimes, a potential protected person give POA to someone who may abuse the POA to the detriment of the person, and become incompetent after giving POA. In that event, a loved one may need to step in with a Petition for Conservatorship and/or Guardianship. That may be the only way to stop the person with POA from abusing that power to the detriment to of the potential protected person. If possible, it is always best to obtain “buy in” by the potential protected person before filing a Conservatorship and/or Guardianship. In that event, the process is much more smooth, and the protected person knows and can trust the person petitioning. The hearing becomes “pro forma”, and other family members may be placated in this circumstance. I have seen this particularly with elderly come to realize they need the help of a child, for example, and work with them in the Petition. If the protected person fights the process, it can become very difficult and expensive. Sometimes, the incapacitating issue is some form of dementia. Sometimes, it may be a psychiatric or mental challenge issue. Sometimes it comes due to a personal injury, a car wreck for example, in which the person is seriously injured and cannot handle affairs. This is a process that requires much thought and prayer to handle while keeping peace among relationships. It is always recommended to obtain counsel to get through this challenging time.
When a person or business has been damaged by the negligence or bad dealing (breach of contract, fraud, etc.) of another party, and attempts to settle between parties are unsuccessful, the wronged party will usually begin litigation. The start point of litigation is the drafting of a Complaint to file with a court. I write “a court”, because parties usually have choices to make with determining the court to use. First, it could be something involving parties of different states or a Federal law issue which might give the option of Federal court, but we will assume South Carolina state court. If the wrongful act/incident happens in one place, but the Defendant lives in another, both places offer jurisdiction to litigate. If the damages are $7500 or less, the case can be brought in Magistrate Court as well as Circuit Court. Regardless, the SC Rules of Civil Procedure (SCRCP) apply to all state courts. The Complaint will have to allege the basis of the jurisdiction of the court of filing, and cause of action against the Defendant. It must allege the elements of the cause the Defendant violated. After filing the Summons and Complaint, the party filing has 120 days to “serve” the lawsuit on the other side or it is dismissed. By the SCRCP, the Complaint is served with a “Summons” that was also filed with the Court. The Summons tells the Defendant he has 30 days to answer the Complaint or will be held to have defaulted to the cause of action. That means the Defendant can lose the case if he does not answer within that time, which starts after he is served with the Summons and Complaint. The default provision is why “Service of Process” is such a formal process in ensuring the Defendant actually receives the Summons and Complaint. By the SCRCP, Service means physically giving a copy of the Summons and Complaint to the Defendant by a competent person over the age of 18 and not a party or party attorney. In practice, this is normally executed by a professional process server. Of note, by the SCRCP service of process is conducted for civil suits and at the start of a Family Court action, but is not needed in for most Probate Court actions. An exception to the rule of handing the papers to the Defendant is handing the papers to “an adult of suitable discretion at the Defendant’s residence”. Usually, this is the Defendant’s Spouse or any adult children. For a business, the service is conducted upon an officer of the corporation, or by certified mail through the registered agent for the corporation. After serving the Summons and Complaint, the process server executes an affidavit of service attesting to the service conducted, and that is filed with the Court. The date of service starts the 30 day period to answer and starts the clock for the suit. Another means of conducting service of process is by mailing a certified letter. “If” the Defendant personally signs for the certified letter, that signature is considered the acceptance of service and it can be filed as such. If a Defendant’s attorney accepts service on the Defendant’s behalf, that is considered acceptance of service (note: Most attorneys will not accept most service for clients, and that acceptance is usually not in the client’s interest). Additionally, a party can voluntarily accept service and sign an acceptance of service. This is sometimes done when parties have reached an agreement before the suit begins and they are settling. If a party avoids service by avoiding the process server and refusing to sign a certified letter, the party bringing suit can request the court allow for “service by publication”. This means that it is published in the newspaper of record for a period of time and the person is considered served. It is not a defense for the Defendant to claim they didn’t actually read the paper, as the rules are specific about what must happen for service to be deemed complete. It’s important to know about proper service of process, and mistakes will mean the lawsuit can be dismissed for improper service.
It is always recommended to begin Estate Planning as early as possible. For some, the emotion of planning for one’s death can be a challenge to overcome. In my personal case as an Army Infantry Officer, it was a natural and required part of our “business” of being ready to deploy to war. The chance of death is ubiquitous, and so certain things had to be put in order to have piece of mind in deploying. One of the most important parts of Estate Planning is in executing a last Will and Testament. The good thing is that it is something that can and should be kept as simple as possible for multiple reasons. When clients come to be to provide counsel for their Wills, they sometimes have every individual piece of real and personal property designated to a specific beneficiary. The problem with attempting to much specificity with a Will is that property and personal changes are certain to occur after executing the Will. For example, property is sold or transferred in the normal course of life. Each time that happens, it can generate the need for new Will. A codicil (amendment to the will) is another solution, but this will actually republish the Will and multiple codicils can make the Will confusing and potentially open to attack in court. The other natural change in life is with those who are beneficiaries. A hard fact of life is that relatives, including even children, sometimes die first. If the Will does not specify “my natural children alive at the time of my death”, then the heirs of a child will split as beneficiaries. Additionally, relationships can change over time. Beyond the one third elective share to a spouse (outside of a prenuptial agreement to the contrary, a spouse is legally entitled to at least 1/3 of their spouse’s estate), you are not legally required to devise or bequeath any part of an estate to a child or other relative. A child or other relative can become a “black sheep” over time, and this could generate the need for another Will. Keeping a Will simple means considering making your spouse the 100% beneficiary, and potentially your children as alternates. In that event, you would likely consider the spouse acting as a primary personal representative (PR, the administrator of the estate) and one or more children as alternate PR. Additionally, to ensure certain keepsakes or family heirlooms go to specific individuals, you can reference a “memorandum” you will leave separate from the Will, and what is written on the Memorandum becomes incorporated into the Will when the estate is probated. On this memo, you can designate the a certain person receives a certain piece of property. For example, a son receiving a specific rifle. With this provision, you would not need to get a new Will for personal property and can change your mind over the years on those items. Always have a Will, but keep it simple. Your loved ones will appreciate it.
One of the toughest parts of civil litigation, whether as a Plaintiff bringing the case or Defendant, is handling a Deposition. Depositions are part of “Discovery” between parties, and will come after parties have served their pleadings (Complaint/Answer) and usually after they have exchanged written discovery. It is the chance for the attorneys to not only obtain information from the opposing party, but evaluate the believability and presentation of the opposing party. Attorneys will usually depose other witnesses beyond the parties to the lawsuit, but the deposition of the Plaintiff or Defendant is critical to litigation. In South Carolina, once the deposition has started, you cannot speak to your attorney until it is over. That includes not speaking to your attorney during breaks. The attorney goes into the deposition of a party with a few critical objectives. First, he wants to know how the party will come across to a jury. Will he or she be sympathetic to a jury? Will he appear credible? Will he come across as angry? Will he lie or appear to lie? These are all things to consider when preparing for a deposition. It’s why a party should dress conservatively (presentation/likeability). It’s why a party should be prepared to stay calm if the other attorney tries to make him mad. It’s why a party should consider and ponder all the facts first before the deposition, and answer in a cool fashion (appearance of credibility). Before, during, and after the deposition, be cordial to the opposing attorney without forgetting he is opposed in interest. In other words, do not get too close in conversation while outside the deposition he picks up information he should not know. The other objective of the attorney in the party deposition is gathering critical information for his case. That’s a reason for a party to solely answer questions asked of the attorney, and take time thinking to give clear, concise answers. Many times, a party will believe they have to talk beyond the question. The opposing attorney may learn something critical to his case when he didn’t even ask the question, or be able to use “loose” words as evidence to for his case. Make the other attorney do his job. Do not try to argue with the other attorney during the deposition and become flustered. Your attorney will have the opportunity on cross examination to explain something you need explained more fully. Discuss this with your attorney before the deposition. For example, during a personal injury car wreck deposition the other attorney may not let you go beyond a question of whether or not you saw the other car before impact. It might be important that you be able to speak about the incident beyond a simple yes or no answer due to the specific conditions. Your attorney will give you that chance in cross examination. Lastly, it is critical your deposition testimony not be used to impeach you if the case goes to trial. Get the facts straight before the deposition. If you don’t know or can’t remember those become perfectly acceptable answers. Always tell the truth, and do it in a way a jury would both like you and believe you. Bill Connor
Planning for what happens to one’s property after death can be a tough process but the motivation comes from the security of caring for others. Without any estate planning, loved ones are forced to make tough decisions about the property of the departed within the constraints of state law, and the lack of direction can cause families to become bitter or separate. With this being the case, it’s important to think through all aspects of estate planning while still in the mental capacity to do so. What is most important about this process? The most obvious important part of estate planning is in executing a last will and testament. This not only directs where property should go among loved ones, but who is responsible for handling the estate. Without a will, family members may be in conflict about who should act as the Personal Representative (formerly Executor or Executrix) for the estate. There may also be conflict when property must be divided by state intestacy (no will) law. This happens frequently with a person who has a second spouse after raising a family with a first spouse. The second spouse has priority as personal representative, and the estate must be divided between the living spouse and living children (who may not care for the spouse). A will relieves these questions and conflicts. Also part of the process is in having Durable Power of Attorney given to a trusted loved one. This is for the period before death in which one may not be capable of conducting business affairs. Along with the Durable Power of Attorney, should be a Health Care Power of Attorney. This allows end of life decision by a loved one and communication and recovery are no longer reasonably possible. Lastly, it’s important to consider setting up non-probate transfers upon death to help minimize the work in probate (and prevent the estate from reaching the point of having to pay substantial Estate taxes). This can be done through “payment on death” or “transfer on death” accounts, whether checking or savings. It can also be done with other types of fungible wealth transfers like stocks/bonds/401K/etc or even retirement accounts. It is important to ask about this option on various accounts and investments. With house and land (“real property”) one can transfer the Title to a loved one during life, subject to a “life estate” by the person transferring. That allows one to live in the house/land until death, without the real property going through probate. It’s really never too early to consider estate planning, as we never know when the Lord will come calling. Do it now, and take care of your loved ones. Make this your legacy.
At some point in the future if not already, you will be in the position to become personal representative (formerly this was known as Executor for men and Executrix for women). This can happen when a loved one has died and has designated you their personal representative in the will. It can also happen when a loved one dies without a will, but you are the closest living relative to the person and obligated to file an intestate (without will) estate. Sometimes, it can happen when you are the person who is most competent and in the best position to probate the estate. In the event there is no will, the SC probate law does provide priority, first to living spouse and next to living children. A question will arise in whether to hire an attorney and when to hire an attorney in the probate process. First, a person “can” probate an estate as a personal representative (PR) without an attorney (called “Pro Se”). In this event, the only time during the process when an attorney would have to get involved is if a Deed of Distribution must be drafted and filed. Otherwise, the law allows individuals to file an estate and act as PR until the closing of the estate. Before taking this option, you should be aware that the PR is a fiduciary and must follow SC law throughout the process of the estate and is accountable to heirs and beneficiaries. If something is done wrong, the PR cannot blame the lack of an attorney in trying to avoid liability. Additionally, if you attempt to start the probate process without an attorney, some mistakes might not be undone by later hiring an attorney, particularly if money is lost or distributed improperly. Estate attorneys can be paid out of the estate after a person is appointed PR, so it generally makes financial sense for the PR to hire an attorney. If the attorney is retained prior to appointment as PR, you must pay him for the work in filing the estate, which could also involve defending the petition for PR against someone contesting the appointment. Assuming no contest (which is the norm when a person is designated PR by the will, or is a close relative like a spouse) the expenses are minimal prior to appointment as PR. The Estate attorney has a primary duty to the estate and the processing of the estate by the SC probate code, but works with the PR toward completing the inventory and appraisement, any real estate sales involved, payment of creditors and estate expenses, and finally closing the estate by an accounting and distribution to devisees. The PR oversees the process and acts as the ultimate responsible party but the lawyer (and firm) does the detailed work. It is best to hire an attorney at the beginning to ensure the process is done correctly, legally, and without liability on the PR. If not at the beginning, then after appointment as PR, but before starting the process involving fiduciary liability.
In starting a small business, the various legal and administrative requirements can be onerous and complex. Getting incorporated, setting up a business account and EIN (Tax ID) number, creating operating agreement(s) with partners in the business. Then comes the legal and administrative issues associated with running a small business. Hiring employees, developing standard operating procedures for employees, developing procedures for termination of employees. Meeting local, state, and federal requirements with businesses and employees, like eVerify for employee immigration status. The list goes on and on. Most small businesses cannot afford to hire a general counsel as an employee of the business, but the need for legal assistance is such that separately retaining counsel with every legal issue or problem is also onerous and expensive. There is another solution we have used in my law firm. We have helped a number of small businesses become established while meeting legal standards, and continued to assist as the businesses continue and grow while remaining “legal”. Our small business clients retain our firm to act as a small business legal advisor.
They put money into a retainer, to be used only when legal work is requested. Whenever something occurs needing legal help, we can immediately help without establishing separate attorney client relationships. We can help incorporate and create operating agreements and obtain EINs for business tax purposes. We can help draft contacts for agreements with other businesses and with incoming employees. We can provide advice on handling employment issues or preventing any problem with potential discrimination.
Finally, we can help handle cases others may bring against the small business when that occurs.
