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Hi law goons. We are having a discussion in the Homeownership thread down in BFC. It begins with this post and is just a few posts long. I would like some sort of lawyerly legal opinion about this. In the united states, can a homeowner's insurance policy issuer deny a theft or burglary claim, solely on the basis that the homeowner failed to adequately secure their home? If so, exactly what standard of security is considered non-negligent? For example, suppose a homeowner failed to lock their front door while they were gone, and they were then burgled with no other forced entry. Could the insurer claim that the homeowner was "negligent" for not locking the door, and then deny the claim on that basis? How about if a homeowner locked the front door, but not the back door, and there was an unlocked side gate that lead to the back door? Do community standards apply? In an inner city where everyone has bars on their doors and windows, are you negligent if you don't have bars? If you live in a rural area where nobody even locks their door, are you negligent for not locking your door? Is the burden on the homeowner to prove in court what their community standard for security is? If there's specific case law that settles this matter, I'd love to see it. I'm also interested if the answers to these questions vary by state, and the degree to which (if any) an insurer can write negligence clauses into a contract that let them deny claims on these sorts of bases.
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May 16, 2016 22:53
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Phil Moscowitz posted:As you say this is going to be very state-by-state and Thanks, just got back to reading your reply. This is about what I figured. Here's a new one: I was just down at my friendly local Polish & European Import deli store, which is a little tiny place run by one guy. I went in to replenish my supply of amazing Polish Kirsch, which has whole cherries in the bottle and is really good. I asked for it and instead got a fountain of angry tirade. Not directed at me, but apparently regulators. Here's his story (and for reference, this is in California): He has a wine & beer license, not a liquor license. The regulatory body (He called them the ABC, so that'd be the California Department of Alcoholic Beverage Control) decided to fine & penalize him for selling this stuff. Why? Because it says "Liqueur" on the (in Polish) label. However, the alcohol content is only 18%. This is the stuff:  Instead of paying the fine (I think he said $3k plus a month of no selling alcohol?), he paid $5000 in legal fees going to court to fight it. He says the judge ruled in his favor. And then the ABC sent him a letter saying he had to pay the fine and penalty anyway, they didn't care about the legal decision. That sounds pretty crazy to me. How can the ABC simply defy a legal decision? Of course it's hearsay, so I have no idea what his actual judgement was about. Anyway it gets better. The ABC sent him another case, this time accusing him of selling alcohol to a minor. The ABC sends their stuff to some third-party company, who puts a date stamp and case number on it and sends it to him. Apparently the alleged sale took place 14 months before they sent him the letter, and there's a 12-month statute of limitations. To get around that, the ABC re-used the case number for the case of the Kirsch issue, which was more recent. Furthermore, they could not furnish a receipt for the sale, and also claimed that a specific brand of beer had been sold (some porter, I don't remember the exact name) which he says he hasn't sold in more than six years. So basically his position is that the ABC is trying to gently caress him for taking them to court, he is out probably $10k in legal fees to fight them, and he only makes about $6k a year in profits on sales of alcohol. What I don't get: how can the ABC simply ignore a legal decision? Can my friend the angry store owner prevail against them? Is this one of those examples of statutory law, where intent (mens rea) defense is worthless because all they care about is actual violation of the letter of the law, irrespective of intent? Is the California ABC known for being evil? Leperflesh fucked around with this message at 00:45 on May 20, 2016 |
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May 20, 2016 00:40
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EwokEntourage posted:This is hard to believe. He actually had the letters handy, although I did not read them because at that point my goal was to escape the store without angering the only man I know in my town who can sell me a decent piroshki. At the end there I was standing in the doorway, trying to slowly close the door and nod, and he just kept talking to me while my frozen food slowly thawed in the bag. His problem with fighting the next one is the legal cost, but I get the impression he's going to do it, because this man has been enfuriated by the unfairness of the legal process. He thinks that some specific person at the ABC is upset that he fought them in court and won, and is now determined to punish him by engaging in additional bullshit. He is also angry that he has to pay the ABC $2k a year for his license. I felt bad for him but mostly I just wanted some kielbasa, mustard, and the best kirsch I've ever tasted. I had to go without the kirsch. Goddammit.
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May 20, 2016 03:12
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Yeah I'm sorry, legal goons, but going back in there as a customer he maaaybe recognizes because I come in every three months or so, and asking for copies of his legal paperwork, would be really weird and awkward and I assume he'd be instantly suspicious and say no. I think it's likely that what the ABC has been up to can be better chalked up as rampant incompetence, rather than an active vendetta against this one shop owner. It's also likely that yes, his lawyer understands the situation much better than he does. His position is that of the beleaguered small businessman being hosed around by the filthy regulators, and I assume that colors everything. He does not strike me as being an especially stupid person, mind you. He's kept a small business afloat for 20+ years. Maybe he could have fought his situation without spending ten or twenty grand on legal fees, I don't know. I was mostly just curious to hear if there was anything he said that was blatantly impossible and/or a well-known situation, like, among legal nerds maybe everyone knows the CA ABC is an evil bunch of vindictive fuckers who go out of their ways to destroy small businesses or somesuch. One thing I do know, is it's really loving stupid for an 17% ABV bottle of booze to be regulated as if it were spirits just because of a word on the (mostly non-English) label, and the ABC's own rules should be simplified on that basis alone: a beer & wine license should define those drinks based entirely on alcohol content, not some hosed up labyrinthine definition of distillation processes or whatever. Cough syrup has distilled spirits in it, so a corner store shouldn't be able to sell Robitussin without a liquor license, right?
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May 20, 2016 23:52
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Can anyone point me to the tree law thread? I have archives, if it's not live any more. Thanks!
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Aug 29, 2019 18:02
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The OP links to a law school thread that is closed and links to a jurisprudence megathread that is also closed, so I'm gonna ask here and hope I don't get probed. I'm a software technical writer with a degree in technical writing with a subject-matter focus in science writing, about 20 years of experience working in enterprise software documentation. I have an interest in law, a little education in intellectual property law (just a focus on it in one of my classes at school) and have taken the time to learn the basics enough to pedantically lecture my fellow goons when they make wildly wrong statements about it (which is always). I also enjoy reading sarcastic judge opinions, and as a technical writer I'm proficient in being very very precise and careful in the technical aspects of a document when it's called for. I'm also 44 years old and kind of trying to figure out if there's a pathway out of my career and into some other career, which would still pay me reasonably well within a couple of years of getting going. Not necessarily going to law school and/or becoming a lawyer, mind you. But I imagine "legal assistant" means 70 hour work weeks and lovely pay. Does the legal realm have a spot for someone like me? I'd be willing to like take night classes for a year or two and get a certificate or something, but full-time college is out of the question. I live in the SF Bay Area, if that matters. One time I drove by a place nearby that had a sign out front saying they were forensic accountants and it gave me Ideas. I bet there's forensic legal research? Would someone pay me $100k to dig through 100,000 pages of legalese in order to figure out what the gently caress happened in some case from 1986? One of the key skills of a technical writer is translation; I interview subject matter experts and read technical planning documents and the bullshit gap-filled notes of programmers and then translate that into coherent understandable straighforward tasks, concepts, and reference for a specific audience, for example "end users" or "administrators" or "developers who already know how to do this and just need to look something up." Is there a realm of legal document poo poo around, like, reading a bunch of legal documents and then explaining to non-legal-nerd people what they actually mean? I guess a legal journalist might do that, but journalism is a lovely low-paid job for chumps these days. I'm spitballing and brainstorming here so don't feel like you need to gladhandle me, if this is a bunch of idiotic ideas I'm OK with you saying so.
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Sep 11, 2019 23:05
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euphronius posted:The key to forensic accountants is that they are called as expert witnesses in cases to give expert opinions about crime and damages and whatever and so on Leperflesh posted:I'm a software technical writer with a degree in technical writing with a subject-matter focus in science writing Ahah, thank you. quote:You're not a lawyer, so no. Hmm. I figured not having a legal degree would be an impediment to a lot of these things. quote:You could become a paralegal with a few years of schooling and try to get a paralegal job. Anything else will likely be secretarial work. Long short at some sort of expert witness but pretty long shot, I can't think of a claim where you'd need a technical writer to testify. Maybe one of the biglaw losers in the law thread have some possibilities because those clients have money to burn OK, thank you. Not unexpected as a response, but I figured it was worth asking. And, I'll shift my dumb rear end questions to that appropriate thread you linked, so thanks for that too.
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Sep 11, 2019 23:23
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Farking Bastage posted:How do inheritance taxes work? I'm sure a few of you are familiar with my horrible ungodly situation ( dad murdered mom). I have a probate attorney for mom's estate and I am using the same guy my Uncle is for Grandma's estate, that mom's estate is a beneficiary of. Now, I understand they way this will go, is the proceeds of grandma's estate will be bequeathed to the estate of my mom and then from mom's estate to my sister and myself. Where or when does the IRS take their cut? unless it's many millions of dollars, there's no tax at all welcome to america
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Oct 10, 2019 19:06
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It's dumb as hell that any state withholds unemployment income from people just because they were fired. Unemployment income is a societal benefit that helps keep lots of people from becoming destitute and even more reliant on the state and society as a result of short-term unemployment leading to eviction, starvation, etc. It's not some kind of "well you deserve it but that guy, he sucked at his job so he doesn't deserve it" reward for good behavior. Or, well, that's exactly what it is, but it shouldn't be. You don't have to get into a discussion of whether capitalism is just or all laws are unjust or whatever; from a purely practical standpoint, it's loving stupid. It's also stupid as you point out to leave it in the hands of a random private person to make a determination about someone that could leave them losing out on thousands of dollars of public support while they look for work.
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Oct 22, 2019 21:31
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yeah if you're fired for breaking the law at work such as by committing fraud, we have this whole legal system set up for people to deal with you on that basis And again, it doesn't matter whether people "deserved" to be laid off, unemployment income is an essential service to all of society because it keeps people from becoming destitute during a typical one to three months of unemployment. I really don't want another homeless person on the streets in my city who is there just because his employer thought he wasn't good enough at doing his most recent job. Maybe he wasn't! Maybe he'll do better at his next job. If he's got no home he's gonna seriously struggle to get that next job and we're all gonna pay for his misfortune in one way or another, a lot more than a few unemployment checks. But even if you disagree with that argument, there's clearly no rigorous investigation involved as a prerequisite to determining that someone "doesn't deserve" unemployment; it's just a ticked box on a form that anyone at the previous job filled out, could be a trained HR person who really knows what it means, could just be the 19 year old assistant manager at the Subway you were working at. For your home insurer to deny your fire coverage on the basis that you were the arsonist, there'd have to be some kind of rigorous investigation, by someone with expertise and hopefully some accountability.
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Oct 22, 2019 21:52
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I've worked for a company that fired someone, and nobody ever came round and asked us all if they were really bad at their jobs or if the boss was just an rear end in a top hat. Maybe it's different here in California. But I'm gonna guess that so many people are fired for cause in a given state where it matters that, unlike suspicious house fires, not a whole lot of rigorous investigation goes into determining whether or not someone deserves to have their insurance policy canceled out from under them because they intentionally or negligently caused the claim. If a boss says "yeah that guy sucked at making sandwiches" what are they going to do, interview their last 100 customers to see if their sandwiches were in fact badly made? I'm thinking maybe at least as much effort should go into denying unemployment payments as goes into catching people who are cheating with their handicapped parking placards when they're not really handicapped. But also even that much effort is not practicable, remotely so, it'd be far too expensive and difficult. So I'm gonna stand by my "it's stupid to do this" posts. I'm sorry if this is too much of a derail for the legal thread.
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Oct 22, 2019 22:26
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Every single person denied unemployment because they were fired for cause gets an investigation and a hearing? That's news to me. I guess Dr. Arbitrary doesn't need to worry about their acquaintance; they'll have a rigorous hearing automatically and experts will investigate whether they really deserved to be fired or not.
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Oct 22, 2019 22:44
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euphronius posted:Obviously the employee Must contest first This is the crux of the issue.
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Oct 22, 2019 22:56
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Who has the burden of proof? What is the standard of proof? If the employer can't provide documentation proving the employee did the bad things, does the employee automatically win? How quickly does the hearing happen? Can the unemployed person collect unemployment money until they get a job/the hearing happens, so they're not literally too destitute to deal with lawyers and hearings? It's still stupid to deny unemployment to anyone, but maybe this is marginally less lovely than I thought.
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Oct 22, 2019 23:03
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Almost half of all american jobs are in/for small businesses (fewer than 500 employees), and a third are 100 employees or fewer, though. There's a shitload of jobs where the system would seem to significantly incentivize a small employer to find any excuse to fire for cause instead of laying someone off.
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Oct 23, 2019 01:13
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blarzgh posted:Washington State found in 2011 that there were 9,000 cases of workers filing fraudulent claims resulting in $21 million dollars of overpayment to employees, and 13,000 "misclassified" workers by employers (fraud the other direction) resulting in $3 million of underpayment by employers. https://esd.wa.gov/newsroom/unemployment-insurance-fraud-FAQ the very first item in the loving article you quoted posted:Q. What kind of fraudulent practices are committed against the unemployment-insurance system? The article goes on to clarify that the tax fraud committed by employers is mostly from misclassifying employees. So, completely unrelated to employers fraudulently claiming laid off employees were fired for cause. Fortunately, all of this is irrelevant, because the question definitely was never "who is the bigger drain on the system."
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Oct 25, 2019 06:06
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You quoted me, and then made a post that was simultaneously misrepresentative of the thing you linked, and not relevant to what I was saying. I think it's not especially "red assed" of me to point these things out.
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Oct 26, 2019 01:28
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there's a difference between "company might break the law by discriminating against women" and "company voluntarily offers a benefit, and might decide to rescind that benefit because employees abused it." Even if the benefit being offered was one that was intended to reduce or eliminate discrimination. FMLA requires unpaid time off offered by larger companies. A paid policy being offered by this company is voluntary; if they decide to terminate that policy, is it "discriminating against women?" Maybe, I'm not sure, especially if the policy is offered to all employees and not just women. But really the argument boils down to, if you abuse a company policy's intent while still following its letter, you might not be breaking the law but you might be encouraging the company to change its policy, and that could affect other people down the road. That's not "victim blaming" so much as pointing out that just because the company says "use as much office supplies as you want" means you can totally take home truckloads of office supplies the day before you quit, if you do that, you might not get prosecuted for theft but you can bet the company's at least considering putting a lock on the office supplies cabinet and is gonna start being a dick to all the employees about taking more post-it notes than their monthly quota. I am not taking a position as to whether quitting right after taking paid leave is abuse, but that does seem to be the crux of the debate. One side may argue that it's not abuse and in fact is part of the intention of such policies, which is interesting to me; "give me time off to care for my infant so I don't just quit" vs. "give me time off to care for my infant and also decide if I want to come back to work or not after" both seem like things employees could demand of employers, with reasons in favor of them. Leperflesh fucked around with this message at 21:30 on Oct 29, 2019 |
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Oct 29, 2019 21:28
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What do you guys think about the illustrated guide to law? This thing: http://lawcomic.net/guide/ I've been through it a couple times and while he goes way off the rails sometimes and his latest extended screeds about prehistorical human cultures is a bunch of bullshit, the early basics he put up about how the law works and why it's built the way it is was really compelling and interesting to me so I'm hoping it's not also full of errors and omissions.
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Oct 30, 2019 18:39
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Yeah that's the newest page, the author insists he's been doing tons of research and he's trying to lay out how we first put together concepts of justice as enforced by government but it's clear it's not his area of expertise and he's just taking at face value two or three specific sources he likes without talking to like, actual anthropologists. But if you start at the beginning it's mostly not that stuff. http://lawcomic.net/guide/?p=18
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Oct 30, 2019 18:46
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I think it's aimed at the layperson who knows nothing about the law and wants to learn the basics. It feels like, for example, a decent intro to the concept of mens rea. Anyway I was more asking if folks were already familiar with it, I don't expect you to read the whole thing.
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Oct 30, 2019 19:04
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There's also a whole section on constitutional law, and another on criminal procedure. And another separate thing where he goes into terrorism. And a patreon! I have no idea if he still practices law. But sometimes he goes months without updating the site so I suspect he does.
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Oct 30, 2019 19:24
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Speaking of lying, I'm interested in that "the whole truth" segment of the swear. Are people ever convicted of perjury for lies of omission? Or can't someone more or less plausibly argue that they "forgot" to mention some important detail?
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Oct 31, 2019 18:10
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Interesting. So, the clause in the oath that you have to swear to tell the whole truth is one of those things in law (or the procedure of law or whatever you want to call it) is just advising the witness/defendant that questioners can pursue them to give more complete answers if they believe their answers are incomplete or evasive, e.g. as a defendant answering questions on the stand, my attorney could not successfully object to a prosecutor's question on the grounds that "he already gave an answer and isn't sworn to give a complete answer." Although presumably the 5th amendment still applies? I seem to recall that if you start answering questions then you've waived your 5th amendment right and have to keep giving answers?
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Oct 31, 2019 19:21
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Yeah so that only covers if I'm being evasive because I don't want to self-incriminate, I can't legally evade questions and give a not-whole truth for anything else.
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Oct 31, 2019 19:31
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Thanks for the answers, that's about what I figured I guess.
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Oct 31, 2019 19:53
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Those are things your city can do instead, you know. Like my city says we can't leave garbage bins out front for more than 24 hours, and they enforce it. You don't need a petty extra-governmental neighborhood cabal to have "good neighbor" laws.
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Nov 17, 2019 22:26
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Yeah, so, they're a bad solution for wealthier people to compensate for governmental failure.
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Nov 17, 2019 22:40
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The best HOAs are the ones that collect like $20 a year from residents to pay for the every-five-year re-graveling of the shared driveway, and that's all. It's when HOAs decide that for the sake of property values they are going to regulate parking in your driveway, what kind of curtains you're allowed to have, what paint colors you can use, how many days between mowing of your perfect green grass lawn you can go, etc. that they swing wildly into the busybody petty dictatorship horseshit that drives people crazy.
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Nov 18, 2019 06:56
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If the HOA decides not to act on its own, you might consider a coup of the HOA board. You can lobby your neighbors on the basis of "look at how the HOA let my neighbor destroy my view, they'll let it happen to you too unless we fix this" and eventually you might be able to either encourage the HOA board to take action to protect your views in order to avoid getting tossed out in favor of candidates who promise to everyone to actually act to protect their views, or, actually toss them out and put in place a board that will act to protect your views. I mentioned it's a petty government-like entity for a reason, and this is why. If you want to force governments to do things, the expensive way is to sue them: the... also expensive way is to lobby them, and the third also very expensive way is to vote for someone who promises to do the things you wanted, possibly that person being you yourself. If it seems like a huge loving hassle to get involved in essentially a political campaign in your tiny enclave, well, that's ultimately what an HOA is, sorry.
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Nov 18, 2019 19:29
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also the software industry, as it applies to medical practice, is a colossal shitshow and it is completely plausible that whatever applications some small practice is using are actually incapable of handling this correctly
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Nov 29, 2019 08:42
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I'm the cuddling on the couch after assaulting a student and injuring them in a teacher-student wrestling match, reassuring myself that this intimacy is both appropriate and totally makes up for what just happened, this is all OK right sweetie? You "got hurt" it wasn't me hurting you, I mean obviously it was but it was just an accident, here let's hug it out yeah? Your honor the defendant has to have been OK because legally a couch-sit is exculpatory
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Dec 6, 2019 20:30
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I mean for example if this is a divorce you are gonna be fighting over money probably so it's not a terrible idea to have a list of your financial assets? Yes. You want a text dump of her messages you stole off her phone listing every time your wife said something lovely about you to her friends? Hey maybe not that second thing? I am not a lawyer I'm just a newly forged fan of the lawyer thread
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Dec 9, 2019 21:39
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Traffic fines, and for that matter all fines, should be means-adjusted and scale to a person's wealth and income, like they do in (iirc) norway or maybe it's denmark, one of those countries. You occasionally see a story where some filthy rich person pays like a $12,000 speeding ticket and it's wonderful. And yes this goes both ways, because people with literally no money are not particularly deterred by the odds of getting a parking ticket they can't and won't pay. Also, the right to due process shouldn't auto-screw people who drove through a town on a cross country trip and got a bullshit speed trap ticket they would have to spend days off work and hundreds in travel expenses to show up to contest, thereby providing income directly to the police that run that speed trap as a for-profit enterprise. Here's an idea, if it'd be too technologically complicated to let people access court via video conference from their phone or PC or whatever: let people go to any court local to them and have court-to-court videoconference networking set up and accessible to the public. You could implement a national standard (lol) and people could appear for non-felony charges remotely. (OK I know that's a fantasy because lol at the idea of that level of intrastate technological cooperation and coordination, but if we lived in a fair and just and reasonable society/country it'd be doable and a lot more fair to people.)
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Dec 16, 2019 19:53
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blarzgh posted:IDK if it makes you feel better or not, but I can tell you that basically 100% of people who get a ticket were actually doing the I dunno what to tell you if you just don't believe that speed traps exist, but they do.
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Dec 16, 2019 22:57
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To me, it's where speed is suddenly and inappropriately dropped by a sign placed in such a manner as to essentially "trap" drivers into breaking the law if they're not already familiar with that sign and its placement. Stuff like suddenly dropping a 55mph road to 35mph with a sign just around a blind corner, and then the cop is there to catch you doing 55 in a 35. And, critically, the speed drop isn't necessary or required for the road layout or conditions. Sure, you want slower speed through town, but you're not giving drivers the chance to see the slower speed and drop from high to low speed in a reasonable space. Otherwise, it's just normal speed enforcement and not a speed "trap." This definition kind of gets it: https://www.motorists.org/issues/speed-traps/definition/ but I can see how it's commonly used just to mean enforcing speed laws, which I am more or less in favor of. e. I dunno about this website in general, but this article covers it way better: https://www.alcoholproblemsandsolutions.org/whats-a-speed-trap/ Leperflesh fucked around with this message at 23:13 on Dec 16, 2019 |
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Dec 16, 2019 23:08
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Yeah that's just aggressive enforcement of reasonable speed limits I guess. Speed traps are intentionally set up to generate revenue by tricking drivers into breaking the law, with a "concern about safety" as a transparently thin excuse. That said, even non-speed-trap aggressive enforcement doesn't really work when it's just through-state drivers who will never be back there again. E.g. it has no deterrent value. Doing a better job of warning drivers to slow down and giving them the space to do it has more of a safety impact. If you find that drivers are constantly violating a speed limit in a given location, your first idea should always be "we need to do a better job helping drivers to know to drive slower here" and there's a lot that traffic engineers can tell you about how to do that, including visual cues besides just speed limits. The presence of sidewalks, street lights, width of roads, different types of lane markings, etc. can all help drivers feel like "oh, this is a place we need to be slower in" without just issuing thousands of tickets. For the most part, drivers are idiots; but they also don't particularly want to mow down a pedestrian or go flying off a sharp curve or smash into each other, and you can help them to not do that with sensible traffic engineering.
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Dec 16, 2019 23:37
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I'm guessing (IANAL) it's partly "permission to take the mineral rights away from your property in exchange for money" which is pretty standard, and could also partly be "permission to destroy the value of the land by permanently poisoning the groundwater below it and possibly causing earthquakes and maybe even killing everything that grows there and otherwise being a giant, rapacious, horrifying resource-extraction industry that grinds people into powder, with the explicit assistance of both political parties in west virginia because being pro-mining is the way you get elected there" so uh, good luck with that. There's also the whole noise problem, so it's not just the "debate" about ground water pollution that matters.
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Dec 19, 2019 21:31
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are gambling winnings considered "income" by texas state law?
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Jan 8, 2020 17:22
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Does the fact it says "the legislature" imply that a lower tier of government, such as a municipality, is not so prohibited?
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Jan 8, 2020 18:25
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