What Is The Law On Defamation of Character And How Can Defamation Be Proved?

The purpose of laws surrounding defamation of character is to protect an individual’s reputation. This is bound to be a controversial area from the outset, where issues of Human Rights in relation to another individual’s freedom of speech, (namely Article 10 of the European Convention on Human Rights) can be raised.

As is the case with most areas of law, the delicate balance, which must be achieved between a person’s reputation on the one hand and another’s right to speak their mind on the other, is no enviable task for judges of our day.

For a defamation claim to succeed in England, three elements first need to be made out:

– The words are defamatory.

– The words refer to the Claimant.

– The words have been published.

We shall now look at each of these in further depth.

The words are defamatory

Whilst there is no concrete definition in law, factors which are considered include deciding if the material lowers the reputation of the Claimant in right thinking members of society, does the defamatory statement causes the Claimant to be shunned or avoided, or exposes the claimant to hatred, ridicule or contempt?

All relevant factors must be considered in this assessment. The word’s ordinary meanings should be considered but also whether or not there are any hidden meanings within the material’s full and rightful context.

The words refer to the Claimant

If the material contains the Claimant’s full name or picture, this element clearly won’t be in dispute. However, often it is the case that nicknames or innuendo’s are used. The courts have decided the general test for whether the material can satisfactorily be made out to refer to the Claimant is whether a ‘reasonable reader’ – i.e. an average member of society – would make the connection to them.

The words have been published

The legal definition of defamation is the publishing of untrue material that would lower another’s reputation in the eyes of a right thinking member of society. The word ‘publishing’ immediately brings connotations of something written down. However, as every defamation lawyer will tell you, this does not have to be so for a claim to succeed. ‘Published’ in this context simply means being transmitted to a third party. The definition of slander, for example, is defamation in a transient form and does not have to have a written element at all. Words will suffice. Similarly, for a claim of libel to succeed, the defamation must be permanent but would still qualify if the defamation took place over the radio or in a theatre, and not in written form.

This being said, the vast majority of defamation claims are a form of libel that is written down, published either on the internet, in a magazine or in the papers. It should be noted that the easier the claim to bring about (i.e. through bringing an action of slander), the higher the burden of proof as the claimant must show that actual (tangible) damage has taken place. This makes sense in order to prevent the court being inundated with an unmanageable volume of claims. Where the words are written down in what constitutes libel, this is no so. The words alone are enough and the claimant does not have to prove any subsequent loss from the defamatory material.

Networking and Seminars to Improve Michigan DUI Defense

Drunk driving cases have become increasingly serious, carrying harsher license sanctions, longer jail sentences, and dire financial penalties. A person accused of a drunk driving offense understands these penalties as well as the social stigma affiliated with a DUI conviction. With widespread pressure from anti-drunk driving advocacy groups, there is a growing awareness that police, prosecutors and judges hold a bias against meritorious challenges to a drunk driving crime.

In many states, a vibrant defense bar has sprung up to challenge the institutional bias against the DUI suspect. California, Georgia, and Washington amongst many others have specialized DUI defense firms populated by aggressive lawyers knowledgeable in the science of breath and blood testing. The lawyers at these firms attend national seminars on trial techniques, technical programs regarding breath machines, and certification courses in standardized field sobriety tests.

Advanced DUI / DWI defense programs can be expensive and time-consuming. An advanced course in GC and GC/MS might cost over $2,000.00, requiring the defense lawyer to schedule airfare and hotel accommodations. Every summer, the National College for DUI Defense hosts an intensive program in DUI defense at Harvard, but this 3-day program requires travel, airfare and lodging. It also costs $1,500.00 and requires membership in the NCDD. While these programs are top-notch seminars, few Michigan practitioners appear at these national programs.

Michigan lags far behind the majority of other states, and only a couple of firms have dedicated their practice to defending drunk driving cases. The vast majority of Michigan lawyers are unwilling to limit their practice, so they are less willing to spend the necessary funds to attend out-of-state programs. As a result, Michigan courts address poorly developed issues, and they are more willing to issue bad opinions that ignore the undisputed science in drug and alcohol-related driving cases.

To raise the bar on the quality of Michigan drunk driving advocacy, it is not necessary that lawyers spend a fortune. An attorney does not need to travel hundreds of miles or spend thousands of dollars to improve the quality of their drunk driving litigation skills. Networking opportunities exist within the state, and inexpensive seminars are locally sponsored.

Every summer, the Criminal Defense Attorneys of Michigan (CDAM) sponsors a Trial Practice College. Trial advocacy skills are taught, practiced, and rehearsed, lead by top Michigan criminal defense lawyers. Although the program does not specifically address drunk driving litigation skills, at least a few qualified drunk driving trial lawyers attend the program every year. These networking opportunities are golden, and every Michigan lawyer should try to attend this wonderful program. CDAM also hosts conferences in the spring and fall on valuable topics that permit networking with other criminal defense lawyers.

The State Appellate Defenders Office (SADO) sponsors an email listserv for a reasonable fee. Participating on the listserv, every lawyer can get input from hundreds of criminal defense lawyers and enjoy the comradery of these fellow practitioners, even if only via email. The SADO forum has one entire email listserv dedicated to DUI defense.

The Institute for Continuing Legal Education (ICLE) offers an annual one-day course on Michigan drunk driving defense. This year, the program was simultaneously broadcast over the Internet, so participants did not even need to leave the office.

Retired police officer Tony Corroto offers a standardized field sobriety test training course every other year in conjunction with the Maze Legal Group. Mr. Corroto is a DRE (drug recognition expert) and SFST Instructor of Instructors. He has trained thousands of police officers, and he takes time out of his busy schedule to help train Michigan lawyers in these testing protocols for a very reasonable fee.

Lastly, local opportunities exist if you simply look around for them. Local bar associations usually host an occasional meeting that might offer opportunities to learn. A few of the CDAM/SADO lawyers have banded together to form informal groups that meet over drinks to discuss cases. By bouncing ideas off friends from the criminal defense bar, insights and fresh notions spring from an otherwise stagnant pool of ideas.

Experts Offer Differing Opinions on the Future of Pensions

Josh Gotbaum, Director (CEO) of the Pension Benefit Guaranty Corporation (PBGC), and Dallas Salisbury, President & CEO of the Employee Benefit Research Institute, provided their perspectives on the future of pensions at the Wall Street Journal CFO Network Annual Meeting in June. They were asked to address whether there is a pension crisis in the United States and how organizations can handle increasing pension obligations.

Gabriella Stern, Deputy Managing Editor of the WSJ Digital Network, discussed these issues with both authorities in their presentation, “The Great American Pension Crisis: Funding Past Promises and Future Retirement.” The dialogue offered a dichotomy of viewpoints on the best way government, businesses, and individuals should move forward.

Retirement Outlook-To Worry or Not to Worry

What keeps Josh Gotbaum up at night is the fact that although people are living longer and their opportunities are increasing later in life, the institutions that help people through retirement are not improving.

According to Gotbaum, only about half of people who work have any kind of an employer provided plan. Of those who participate, the burden is on workers to figure out how much to save and what to invest, which isn’t always in the best interest of getting to retirement.

Gotbaum doesn’t place blame on any one organization, but believes that every entity has a role to play in getting people to save more. He identifies key players in the pension arena, and their associated responsibilities, as:

1. Individuals-Make it known that you want retirement help from employers.

2. Businesses-Employers are infinitely better at negotiating the terms of plans, and as a result, are more likely to promote retirement savings than a person going it alone. This applies to either a defined benefit plan or a 401(k) plan. Companies don’t necessarily have to put up more money, but they can encourage people to divert more of their own earnings into savings.

3. Government-Instead of adding regulatory requirements on those who offer traditional pension plans, government needs to rethink what can be done to make it easier for businesses to afford and offer employees a greater variety of pension options.

Dallas Salisbury, however, is more optimistic that employers have stepped up to the challenge.

According to Salisbury, when the federal government led the move to a defined contribution system in 1984, they did it for one primary reason-the median job tenure of the American labor force. In a simultaneous and reinforcing move, Bank of America adopted an individualized account system.

Employment tenure statistics have essentially remained unchanged from 1952 to 2011, says Salisbury. Over time, an average employee has stayed at a firm for four years. For workers aged 55 to 64, the average employment tenure has remained at less than 10 years during this time period. These job numbers emphasize the relatively rapid job turnover for most of the economy, according to Salisbury. The old defined benefit system that subsidized employees who stayed with one company for 25-plus years actually represents a small percentage of the American workforce.

In 1974, the year ERISA passed, 13 percent of people over the age 65 had pension income. By 2001, 23 percent of private sector workers had some pension income. Employers are using automatic enrollment at growing rates, according to Salisbury. The Employee Benefit Research Institute has looked at the population of workers today that have defined contribution programs, and compared them based on turnover and the “what if” scenario of being in a cash balance defined benefit plan instead. A majority (86%) do better through the defined contribution system than they would with a cash balance plan.

If there is a crisis of retirement today, Salisbury supports economist Alan Krueger’s argument that the crisis relates to health care more than retirement income. All of the major insurance carriers that have built a long-term care policy base over the last 20 years are exiting the marketplace, he observes, which will impact Medicare and Medicaid.

Defined Benefit System vs. Defined Contributions

Gotbaum argued that companies should be allowed to continue to offer defined benefit pension plans to the 20 percent in the private sector if it makes sense to them. He makes the case, however, that it is difficult for defined benefit plans to cut costs. Gotbaum cites examples of states or cities that need to trim costs in their traditional pension plans. Municipalities can turn to employees and ask them to contribute to the cost.

It should be possible for the 20 percent of people in the private sector who are in traditional defined benefit pension plans to be able to stay there, Gotbaum contends. From his perspective, companies can legally, and without increasing costs, improve their employees’ retirement security by changing investment options. One example is to offer employees annuities as an option for better retirement security, while still being cost competitive.

Salisbury’s advocacy, alternatively, is that it is in employers’ best interests to take an active role in pension plans so that tomorrow’s retirees have money to maintain a comfortable lifestyle and sustain the country’s consumer-oriented economy.

Fifty percent of people reportedly are forced into retirement because of health, disability issues, or a change in their job situation. Twenty-six percent retire early because their employment disappeared. These individuals need accumulated savings to buy consumer products and help drive the economy. As demographics lead the U.S. to a point where about 21 to 22 percent of the population will be over the age of 65-compared to 13 percent today-these older American will need financial assets to fund their future.

If pension income falls short, Salisbury argues, the U.S. economy risks negative implications for long-term economic growth. If you want everyone to have a plan and you have a high mobility labor force, then you need to make sure you have something that is for everyone, he supports.

Gotbaum summed it up by saying it slightly differently. “Go to your HR departments and don’t just say I need a retirement package that fits. Say, I need choices, and what can I get?” The HR department can respond with a variety of options, resulting in happier employees who will be able to continue fueling America’s consumer-driven economy well into the future.

Temporary Injunctions

A divorce, especially contested divorces, can be extremely stressful for every party involved. Both spouses are most likely experiencing the emotional toil of separating their lives from someone the once loved. This process can put stress on a person that they may have never experienced before and cause them to act out in surprising ways. Because of the potential for unlikely behavior in these circumstances, many state court systems have the right to order temporary injunctions to prevent or protect certain actions of both parties.

These temporary actions are ordered to protect the court’s ability to make an informed and just decision, especially in the case of a contested divorce. There are numerous different actions that the courts can request, including ones that protect personal property against damage by one party. The court can demand a mandatory inventory of all personal and shared property so that it can be equitably distributed.

These actions can also require one party to continue behavior, like payment of fees, bills and support of the other party. The court can also impose the separation of the two parties during court proceedings if the court feels like there is a threat of violence. Included in this may be the right of just one spouse to occupy a family residence. The courts will work to ensure that both parties can continue their necessary and normal daily functions. They can do this by enforcing temporary restraining orders or similar actions. These injunction serve to protect the ability of the court to make a fair decision in the case.

It is important to understand the legal ramifications of a divorce filing.

How Do I Choose A DUI Attorney?

My last two articles in EzineArticles addressed two frequently asked questions: (1) should I contest my D.U.I. charge? and (2) should I represent myself in a D.U.I.? This article discusses a common follow-up question: if I have decided to contest my D.U.I. charge and I’m not going to represent myself, how do I choose a D.U.I. attorney?

Choose an attorney that focuses on D.U.I. The last article compared choosing an attorney to choosing a doctor. If you are choosing a doctor for a problem with your big toe, you want a doctor that only treats feet, and preferably a foot doctor that focuses on big toes. If you are seeking a lawyer for a D.U.I. you want a lawyer that practices criminal defense and focuses on D.U.I. defense.

Choose an attorney that has education and training in D.U.I. issues. Look for an attorney that has completed courses in field sobriety testing, breath testing, and testing of blood and urine. Also look for a lawyer that is a member of the National College for DUI Defense and regularly attends continuing legal education seminars for D.U.I. law.

Choose an attorney that has experience in D.U.I. cases. You would not want a foot doctor that has been educated in foot medicine but has little experience actually treating feet. Look for a lawyer that regularly contests D.U.I. cases and has taken many cases through contested motion hearings and trials. It may also be helpful to find an attorney that practices regularly in the court where your D.U.I. case is being held.

Choose an attorney that has good communication skills. The lawyer needs to clearly communicate with you, the prosecutor and the judge. The lawyer should be able to educate you on the law and the process for your case. Communication also involves listening, so the attorney should listen to your situation and concerns, and answer all of your questions.

Choose an attorney that charges appropriate fees. The fee for contesting your D.U.I. charge is naturally going to be higher than the fee for walking you through the process of pleading guilty. The fee for a lawyer that focuses on D.U.I. is likely going to be higher than the fee for a lawyer that practices several areas of the law. If the fee is too low, the lawyer probably doesn’t value his or her time highly or does not plan to put a lot of work into the case.

There are many attorneys that handle D.U.I. (O.V.I.) cases. Hopefully, the criteria discussed here will help you evaluate which attorney is the best one for your case.

Adultery and Divorce

An affair will cause extreme tension and hostility in a marriage. The emotional toll it can have on a couple is extreme. This is why infidelity and affairs are the second largest reason for divorce in America. It follows closely behind the stress and arguments that go with handling joint finances. When adultery has occurred, and is one cause for a marriage falling apart, the divorce proceedings may be run slightly differently.

Many lucky couples are able to work through their differences when finding a fair settlement. They may see eye to eye on what the terms of a divorce should include. These couples typically choose the types of divorces that require little legal action, such as collaborative and mediated divorces. However, if one person feels extremely wronged due to adultery, coming to a settlement agreement may be far more difficult and can result in a judge making the final call in the terms of the settlement decision.

Infidelity will most likely change the terms of a prenuptial agreement. However, if one person cheats in the relationship, the agreement may state that it will affect alimony payments and other issues. However, in order for this to happen, the adultery would have to be proven to the court.

For a person to turn to another for their sexual and emotional needs, it is most likely means that their marriage is already on the rocks. An affair just may be the last string in the dissolving of a marriage. However, there are legal implications when adultery is one reason for divorce.

For more information about adultery and divorce, visit the website of the Orlando divorce attorneys of The Schlegel Law Firm.

Federal Rule 35 Motion for Sentence Reduction – Information

The court, on a motion from the prosecutor of the government usually made within a year of the imposition of the sentence, may reduce the defendants original sentence to reflect the subsequent “substantial assistance”. This means that the defendant has assisted the government in the investigation and or prosecution of another person who has or is committing a criminal offense.

However, the court may also consider the Rule 35 motion if it is after 1 year of the defendants imposition of original sentence, if the defendants information or evidence provided to the government as substantial assistance wasn’t known to the defendant until more than a year after originally sentenced.

A Rule 35 motion can reduce a defendants sentence below any minimum mandatory sentence that was imposed by the court. For example, if the defendant has been sentenced to 120 months in federal prison, even if the guidelines only were for 60-72 months, the court can reduce the sentence anywhere under the 120 months for the defendants cooperation.

Cooperation is one of the only ways, and the best way to get sentenced below some of the strict minimum mandatory sentence requirements. A Rule 35 motion once filed by the prosecutor will usually reflect a recommendation to the court on what the government thinks the defendants cooperation is worth in terms of years taken off their sentence. However, the Judge has the ultimate say in determining the actual reduction of a defendants sentence.

There are ways to find help in securing a Rule 35 by the government. A Sentence Reduction consulting service can assist you the whole way through this process and most likely help you do what is called “third party cooperation” for a defendant already in Federal Prison.

Trademark Class – Which One to Pick?

Once you’ve picked a name to trademark the second step is describing the goods and services for the trademark. This can be a difficult process for someone inexperienced with trademarks. However, here are some quick tips to remember (and a really good resource!).

First, trademarks are registered for particular things. To take an example, Apple is registered for “computers” (amongst other things) and “iPhone” is registered for “mobile telephones.” What you register your trademark for will limit your legal rights. For example, the same trademark can be registered by different people provided it’s for different goods and services. Trademarks being focused on preventing confusion in the market, it’s unlikely that a company making, say, “t-shirts” would be confused with a company providing “legal services”. Obviously there is lots of room for interpretation here!

Second, all goods and services are divided into 45 different classes. Most countries in the world use the same forty five classes. The first thirty four classes relate to goods while the remainder relate to services.

Third, each class relates to a group of things, not just one particular thing. For example, class twenty five relates to clothing, footwear and headgear. Some class groupings are not as logical – for example alcoholic beverages are in class thirty three, while beer is in thirty two. Obviously there are some political and social reasons behind some of the groupings. Also, having the groupings means that it’s easy to search for similar marks – a very simplified search strategy might look for all similar marks in classes that have similar goods and services to your own.

Fourth – and this is one of the most common mistakes – if you operate a retail store selling third party goods, you’re in class thirty five. Some people make the mistake of trying to register the trademark in each of the classes of the goods they sell, when in fact they are selling goods from someone else and their trademark is being used for retail sale.

Finally, the descriptions of good and services should cover your use and intended use of the trademark – no more or less. The descriptions should be plain language and easy to understand, without any jargon.

What Is a Business Legal Professional?

A “business lawyer” or “business attorney” usually refers to a lawyer who represents provider entities of all types. These consist of companies, LLCs, general partnerships, limited partnerships, sole proprietorships, associations, organizations and joint ventures. Commonly, corporation suitable professionals also signify individuals who act inside of a business capacity (owners, proprietors, principals, managers, partners, directors, officers, controlling shareholders, entrepreneurs)! Some business attorneys also represent other individuals in their dealings with business entities (e.g. contractors, subcontractors, consultants, minority shareholders, personnel)! When we use the term “business lawyer” we believe of all three of the above. We represent services, owners, entrepreneurs, individuals in a office capability and other persons who have relationships with corporation entities.

Most businesses need contracts of numerous several kinds, along with a fantastic attorney can draw them up for you simply. Rather than seeking to write your own and hope that they hold up in court, allow a industry legislation service provider to construct or in the the very least edit contracts that you certainly will use at your company. This will guarantee that for those who truly encounter trouble within your supplier, you will probably be protected legally.

Several industries regularly desire a fine organization business venture legal representative, as you might discover a number of restrictions and rules that ought to be adhered to. Will need to you feel too hectic to keep up with new laws that go into impact inside your field, let an attorney to hold you updated. For instance, the building corporation normally has codes that must be adhered to, or you may face fines or even court instances. Steer clear of difficulty by keeping someone near to who will regularly help remind you of any current updates that might possibly it could be that impact your organization.

Sometimes issues go wrong with clients or workers, and companies get sued. Having an attorney might possibly will not prevent individuals nowadays from acquiring frustrated and threatening to sue, however it could decrease the chances of them truly in all likelihood through it considering that they will know that they might not win. If they do go as a result of with it, you will probably could possibly demand a business authorized professional a lot of a lot more than at any time, so it will doubtless be notably good to acquire a single near to. It is just smart to shield yourself from potential lawsuits brought on by angry clients or personnel, primarily provided that companies of any type can face these issues.

Why To File a Trademark Opposition: Understanding the Differences Between the TTAB and Court

One who believes she will be damaged by a registration can file a trademark opposition with the Trademark Trial and Appeal Board (TTAB) of the USPTO. This must be done within the 30-day Opposition Period, although extensions can be sought. Before doing so, it is important to recognize the differences between a TTAB proceeding and litigation in a federal district court.

  1. Although a TTAB proceeding can take less time, oftentimes less than a year, and cost less than litigation, they both are adversarial processes that require an understanding of the Federal Rules of Civil Procedure and trademark law.
  2. A TTAB proceeding is typically easier to file and to dismiss than a court action, without the risk of a requirement of consent or payment of costs and/or fees.
  3. A trademark opposition is filed with the TTAB with any appeal going to the Court of Appeals for the Federal Circuit. This is the only way to be heard by the Court of Appeals for the Federal Circuit, which contains the most precedent related to TTAB matters. Any appeal from a decision in a federal district court will go to the controlling Court of Appeals (e.g. Sixth Circuit Court of Appeals).
  4. While a favorable TTAB ruling in a trademark opposition will preclude the application from becoming a registered trademark, that ruling is not necessarily binding on a federal district court. Moreover, only a court of law can order injunctive or financial relief (i.e. stop the infringing use or award damages).
  5. Leverage in a TTAB proceeding is limited to a petition to cancel the trademark registration relied upon, if any, as part of the opposition. In a federal court action, various counterclaims are available that would make the originally named defendant a plaintiff. In addition, additional third parties could become part of the litigation.

As you can see, there are numerous considerations that have to be made in choosing a TTAB trademark proceeding rather than litigation.

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