I don’t know about you, but when I was a kid back in the 1960’s, watching black-and-white TV, I heard (several times) the phrase, “Possession is nine-tenths (9/10) of the Law,” but I had no idea what it meant.
Most clearly, I remember the phrase from the old Western Television series, “Maverick” starring James Garner as the stylish and rambling Gambler “Bret Maverick.”
Well, now – fifty years later – I finally understand.
It means that you should never give up the “high ground.” You are always better off being the person who possesses the “thing of value,” with others trying to get it from you.
- In Family Law, when your marriage is fraying apart, and you think your spouse might be planning to file for Divorce, ALWAYS stay in the MARITAL RESIDENCE. Do Not leave, or agree to leave. The “high ground” advantage goes to the party that is in the HOUSE, with the other spouse going to Court to take it away. You also want to be the party that spends the most time with the children. Always insist on the kids being with you for the majority of each week, even if you have to take time off from work to make it happen. Eventually, the custody sharing arrangement will be finalized by the Court, and your percentage of time with the kids will determine whether you are paying or receiving Child Support, and how much … for a very long time. If there is a Property Settlement, with one party keeping the House, and the other receiving an equivalent amount of Cash, you want to be the one that keeps the House … since it will be critical in keeping the kids with you for the majority of each week. And don’t forget that on a School Day, the party that has the kids with them in the morning, and again in the evening, gets credit for the six (6) to seven (7) hours that the kids are in school each day !
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- In the Dissolution of a Business Partnership or Corporation, you are generally better off to be the one that keeps control of the business, and not the one that will be paid an annual payout from the operation of the Business. If you are in control of the Business, you make the decision of how much will be invested in expansion, and how much will be taken out in profits, despite what the provisions of the Dissolution Agreement state.
- Whether it’s Real Property or Personal Property, it is generally best to be the Person “ON TITLE.” Let your business partners and/or relatives go to Court to say that despite the fact that YOUR name is on the Title, you were actually just a “NOMINAL TITLE HOLDER,” and it is really them that should be awarded the Beneficial Interest in the Real Estate or Personal Property. With YOUR name on the Title, you are holding the “high ground.”
- If it’s Livestock, Whether Cattle or Horses, you want to be the one that owns the animals, just like it should be you that is on Title to the Real Estate. Better to be the one with the livestock, with your business partners and/or relatives going to Court to claim that YOU are the “cattle-rustler,” instead of YOU going to Court to say that YOU’VE been “rustled.”
- If there’s been Fraud On Your Credit Card, and the Credit Card company asks you to review the monthly statement, and “circle” the charges that are “fraudulent,” just say, “no thank you” … the charges are ALL fraudulent, as far as you’re concerned … and let the Credit Card company be the one to spend the time “circling” the charges that appear NOT to have been “fraudulent.” Just an illustration of when you might want the other side to spend the time, doing their homework, “taking the laboring oar.”
- Be the One to “Press Charges.” I hesitate to even say it, since it just doesn’t seem right to suggest this, but … if you get in a scuffle, and Police break-up the fight, and ask, “do you want to press charges?,” YOU should be the one to say “YES.“ Years ago, a thirty-something, “Yuppy” friend of mine, on the City Subway, back in the day of “Boom-Boxes,” and very loud radios, got in a verbal argument with a teenager, and (apparent) gang member, about the loud noise from the teenager’s “Boom Box.” The teenager “sucker-punched” my friend, and pretty soon it was an all-out fight on the subway platform. The NYC Transit Police broke up the fight, and turned to my friend, asking, do you want to press charges? My friend figured enough was enough, and no one was really hurt, so he said, NO. The Transit Police then asked the (apparent) gang member the same question, and he said, “YES … I want to press charges.” So my friend was arrested. He should have said “yes” when asked. It is always best to negotiate from a position of strength, meaning be on the “high ground.” So, in this case, the criminal process “corollary” to the saying “Possession is nine-tenths (9/10) of the Law” means, do NOT “waive charges” until the other guy “waives charges.”
So, always remember, “Possession is nine-tenths (9/10) of the Law,” and YOU want to be the one on the “high ground’ … the one that maintains “possession.”
You’ve read the book, “A Tree Grows in Brooklyn” …. but now, there is a Tree growing in front of YOUR home or business, in the City of Los Angeles.
Unfortunately, the Tree growing in Los Angeles is pushing up the concrete sidewalk, and causing it to buckle, as if there’d been a recent earthquake.
Being a responsible person, you contact the City of Los Angeles and inform them of this Tree problem. In most cases, nothing further happens, and that’s the end of the story.
If you are lucky, the response of the City of Los Angeles is to go out and inspect the problem and repair it if necessary.
But even then, what the City of Los Angeles does next is really quite surprising – the City holds YOU responsible.
Over recent years, the City of Los Angeles and other local Governments, in an attempt to shield themselves from liability, lobbied the State of California to pass California Streets and Highways Code Section 5610. Section 5610 places liability for the sidewalk on the “Adjacent Landowner.” And that person / entity is YOU ! To say the least, you have been Blindsided. Your response is shock, since you did not put the sidewalk in, nor did you plant the Tree that is now affecting the sidewalk. You are wondering how on Earth you could possibly be liable !
The statute shifts responsibility for the maintenance and repair of sidewalk to the “Adjacent Landowner.” The Statute, and subsequent cases interpreting the Statute, have held that the adjacent landowner owns all land from the edge of the sidewalk adjacent to their land to the middle of the street. (What if the problem is a Sewer Connection under the street, which would be virtually inaccessible to the Adjacent Landowner ?
The City of Los Angles claims that it will gladly come out and repair and then bill you, the “Adjacent Landowner” for their expertise. We are currently litigating a case involving a serious injury where an “Adjacent Landowner” Restaurant built a restaurant patio extension onto the sidewalk. It turns out that neither the Restaurant, nor its construction company (now bankrupt), had a permit to do so.
In the ongoing litigation, both the City of Los Angeles and the Restaurant have Cross-Complained against each other.
Logically, one would think that the entity that built the sidewalk, and planted the Tree, would be liable for injuries caused by their Negligence.
However, logic and law are at times not in sync.
In our case, the City of Los Angeles claims that it had no notice of the danger caused by the un-filled, deep Tree well. The Statute shifts the responsibility to the Adjacent Landowner to notify the City. This makes nosense, since the City of Los Angeles had sent various employees to the area, on business for various other City departments.
Should there not be a duty on the City to inspect and identify hazards before an injury occurs ?
In our case, an 18-inch deep Tree well became unfilled (how?) and our client (Plaintiff), walking at night, in conversation with a friend, down the narrow and partially-obstructed sidewalk, and tripped and fell into the deep Tree well, sustaining serious injuries.
The City of Los Angeles claims that it is not liable, since it (allegedly) had no notice of the dangerous situation, while the Adjacent Landowner claims it thought it had a permit and does not know how the deep Tree well became unfilled. Luckily for Plaintiff, case law places liability on the Adjacent Landowner when the land was altered for their benefit.
In our case, the construction of the Restaurant’s patio extension gave exclusive benefit to the Restaurant.
Does this situation make sense? Should not the City of Los Angeles be liable, since they built the sidewalk, and planted the Tree ?
Should the Adjacent Landowner be liable for a dangerous situation that it did not create ?
On the other hand, as in our case, what if the Adjacent Landowner did create the situation ?
What say you?
Here are the CRITICAL “ANATOMICAL” STAGES of a successful PERSONAL INJURY (“PI”) CASE :
- INFORMATION. At the scene of the car, truck or motorcycle accident, if you are able, get Driver License and Insurance information, and take photos. (Again, IF you are able.)
- AMBULANCE / EMERGENCY TRANSPORTATION. If possible, accept Ambulance or Emergency Transportation to the nearest Hospital Emergency Department.
- IMMEDIATE MEDICAL ATTENTION. Whether it is a Hospital Emergency Room, an Urgent Care Clinic, or your Family Physician, you absolutely must seek Medical Attention immediately, meaning right after the accident, obviously the same day, but best timing is immediately … do NOT go home, do NOT “Pass GO” … go directly to the Hospital or Physician.
- REQUEST THOROUGH MEDICAL TESTING AND EVALUATION. Request X-rays, CT-Scans, MRI’s, and push for a very thorough medical evaluation, right at the beginning.
- CONTACT ATTORNEY / GET LEGAL REPRESENTATION. On the day of the accident, contact an attorney, and retain legal representation. Your legal counsel must be “in place” from DAY ONE. In terms of your medical treatment, your Personal Injury (“PI”) attorney will be able to recommend suitable medical staff from a network of physicians, technicians, chiropractors and care givers.
- LEGAL COUNSEL AS “GATE-KEEPER.” Your attorney and/or law firm will serve as your “Gate-Keeper,” keeping track of the Medical Invoices, requesting Medical Reports, and ensuring that not only do you receive proper medical care, but that the medical care that you do receive, is PROPERLY DOCUMENTED ON PAPER.
- ATTORNEY’S LETTER OF REPRESENTATION. Soon after your Accident, your Attorney will send a Letter of Representation to the Insurance Company representing the other parties involved in your Accident, and will ensure that future communications go directly to your Attorney, and NOT to YOU. This ensures that an experienced Personal Injury Attorney will handle the upcoming communications, and will know what to say, and what not to say.
- ATTORNEY’S DEMAND LETTER. As soon as your Medical Evaluation and Treatment is well underway, and in some cases, concluded, your Attorney will get final Medical Reports from your treating Physicians and Health-care providers, and add up your Medical Expenses, plus your Lost Income and other Damages, and send a DEMAND LETTER on your behalf. In many cases, this is all that is necessary in order to obtain a successful monetary recovery.
- CRISCI POLICY-LIMITS DEMAND LETTER. In some cases, your Attorney will have a basis to send a Policy-Limits Demand Letter, warning the Insurance Company involved that they must pay the Policy Limit to cover your damages, and if they refuse, and the case goes to Trial, and the Jury awards an amount above and beyond the Policy Limit, the Insurance Company will be REQUIRED TO PAY THE FULL AWARD, despite the Policy Limit of the Insurance Coverage !
- FILING LAWSUIT. Your Attorney will know, from long experience, when it is necessary to actually go to Court, to advance your legal rights, and when NOT.
- LITIGATION LESSONS. Your Attorney has learned many lessons from the “trench-warfare” of litigation, lessons about how best to deal with what may be at times a daunting process. You will need representation for Written Discovery, Oral Depositions, and Court Appearances.
- COURTROOM DEMEANOR. Your Attorney will coach you on “Courtroom Demeanor.” How you act in Court, or in a Deposition, may determine how believable you are. One really decent and honorable client, listened in Court as his teenage children not only took the side of their Mom, but testified falsely on Mom’s behalf, actually lying on the Stand. The client WEPT as his children testified against him, because he felt the pain and anguish of betrayal, and also deep sadness for a broken family …. But the client’s weeping conveyed the impression that the teenagers were telling the truth, even though they were not. Ideally, the client’s Courtroom Demeanor would have been one of disbelief, outrage, even anger … had he kept his composure, and even used a little bit of drama, he would have conveyed the (accurate) impression that his teenagers were lying to the Court, and betraying their Dad out of anger and disrespect. There was a lot at stake … in this case, the Dad was forced to move out of the Marital Residence, which was his Separate Property (inherited from his father). The Mom didn’t fare much better, since there was no income to pay the mortgage, and the Marital Residence was ultimately lost by the family.
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- ESTABLISHING DAMAGES. Your Attorney will help you to establish evidence of DAMAGES, and prove DAMAGES at Trial. How bad are your injuries? Juries are increasingly cheap when it comes to awarding damages in personal injury cases. Jurors are not happy to be on Jury Duty in the first place. As Plaintiff, you had better have a compelling story to tell the Jury, through your own testimony, as well as the testimony of witnesses and experts. If you do not have such a story, the Jury will take it out on you, and your Attorney.
- ESTABLISHING LIABILITY. Your Attorney will help you to establish LIABILITY on the part of the Defendants. What did the Defendant do, or not do, which would trigger a finding of FAULT (LIABILTY) against them? Major damage cases have been lost because a Judge or Jury has found that there is no liability on the part of the Defendant.
- INSURANCE. Defendant’s INSURANCE Coverage is of critical importance. Although the law clearly states that neither Judge nor Jury can imply or infer that there is, or is not, INSURANCE Coverage for a Defendant, most people understand that this is a critical aspect of the case. Without INSURANCE, collecting on a judgment will be a problem. A Defendant could file for bankruptcy and have the Judgment discharged, or a payment agreement could take years to satisfy.
- PUNITIVE / EXEMPLARY DAMAGES. Only your Attorney will know whether or not to allege Gross Negligence, and whether or not to seek PUNITIVE / EXEMPLARY DAMAGES. In an appropriate case, PUNITIVE / EXEMPLARY Damages may be applicable. Punitive damages are those that are designed to punish or deter the defendant and others (similarly situated) from engaging in the type of conduct that the Defendant engaged in. PUNITIVE / EXEMPLARY DAMAGES are to be awarded in an amount commensurate with (in accordance with) the Defendant’s ABILITY TO PAY, and in an amount sufficient to deter such conduct in the future. However, PUNITIVE / EXEMPLARY DAMAGES are not covered under the typical INSURANCE policy. If a Defendant acted intentionally, those actions are not covered under insurance as well. The courts have concluded that this would be against public policy. This is why in a given case, pleadings may allege actions of the Defendant as both negligent (covered by insurance) and intentional (not covered by insurance).
- DO NOT “GO IT ALONE.” Let’s face it, you are going to need a skilled and experienced Accident ATTORNEY to help you navigate through some pretty rough seas, and what can sometimes be a long journey. You should hire your Attorney at the very start, and take full advantage of what the American legal system has to offer you.
Our American Society’s Lesbian, Gay, Bisexual and Transgender (“LGBT”) Community must decide what its priorities are.
What is most important ?
Is it an urgent need to have LGBT COMBAT SOLDIERS on the FRONT LINES in Syria, Iraq and Afghanistan ?
Is it to have equal access to RESTROOMS of choice ?
Is it to have America’s FIRST LGBT PRESIDENT elected ?
Is it to have LIBERTY, FREEDOM and EQUAL OPPORTUNITY, regardless of Gender and/or Sexual Orientation ?
Regarding LGBT COMBAT SOLDIERS on the FRONT LINES in Syria, Iraq and Afghanistan, does anyone really want that ? Are members of the LGBT Community so determined to have full integration of America’s Armed Forces, that they will seek out Front-Line Combat positions ? Is full integration of America’s Armed Forces really such a good idea, or will there be at least the potential that we would lose a degree of Battle-hardened, Combat-readiness ?
Regarding equal access to RESTROOMS of Choice, do new laws and regulations really help anyone ? Perhaps we should just leave things the way they are, and let the individuals involved sort it all out.
Regarding America’s FIRST LGBT PRESIDENT, will that be achieved if Hillary Clinton is elected ?
Regarding LIBERTY, FREEDOM and EQUAL OPPORTUNITY, regardless of Gender and/or Sexual Orientation, isn’t that the most important thing, for the LGBT Community, as well as everyone else ?
And perhaps we should all apply a “RULE OF REASON,” which is a time-honored LEGAL TERM referring to a well-thought out decision, using COMMON SENSE, avoiding extremes, and coming up with the BEST SOLUTION.
Let’s not be so driven by specific MILESTONES, as by COMMON SENSE.
If Discrimination is alleged, capable attorneys can argue the issues in a Court of Law.
After all, our Adversarial Judicial System works best when opponents hire experienced counsel, who argue the different sides of the issue, to be ultimately decided by either a WISE COURT, or a JURY of PEERS, or both.