Wednesday, July 18, 2007

Can Informations lawfully be laid by fax in the magistrates' court

In the recent case of Rockall v DEFRA (22 March 2007) [2007] EWCA Div 614 the Divisional Court was asked to decide two fundamentally important issues as to when proceedings for regulatory offences are as a matter of law "instituted" in the magistrates' court. The resolution of these issues affect the way in which magistrates' courts accept the initiating process for all prosecutions and when time stops in relation to limitation.

Issue 1: fax service

The first issue was whether service of an information commencing regulatory proceedings by DEFRA pursuant to the Forestry Act 1967 could be lawfully "served" by way of fax. The Appellant contended that in the absence of detailed provision for service by way of fax in the Criminal Procedure Rules, such as those contained in the Civil Procedure Rules, service ought properly to be lawfully effected only when received "by a member of staff of the clerk to the justices" (citing Lord Roskill, in Regina v Manchester Stipendiary Magistrates' Court ex parte Hill [1983] 1 AC 328). The Respondent argued that an information was received at a magistrates' court when a fax arrived at a court fax machine. It was irrelevant if a person physically picked up that fax so long as it had arrived at the fax machine before the expiry of the limitation period. The same principles already applied to postal deliveries in that a letter left unopened in a court office was deemed received when it had arrived and not when a court official opened it.

Second 2: "Institute" proceedings

The second issue that the Appellant invited the Divisional Court to decide was the meaning of the word "institute" in the context of the proceedings commenced by DEFRA for the purposes of limitation. Section 17(1) of the Forestry Act 1967 provides that proceedings for an offence under this section may be instituted within six months from the first discovery of the offence by the person taking the proceedings, provided that no proceedings shall be instituted more than two years after the date of the offence. This provision is an exception to the general rule in section 127(1) of the Magistrates' Court Act 1980 that a magistrates court does not have jurisdiction to try an information unless it has been laid within six months from the time when the offence was committed, "except as otherwise expressly provided by any enactment". The Appellant relied upon Price -v- Humphries [1958] 3 WLR 304 where Devlin J said: "Proceedings in summary jurisdiction of this sort are instituted by the laying of an information and the issue of a summons, and, when the summons is issued, that is the institution of the proceedings." This would mean that not only would an information purporting to initiate proceedings by fax have to be received at the court office, but there would then have to be a summons issued in relation to it. The Respondent argued that this was wrong in law because the initiating act of laying an information and thereby stopping time from continuing to run must be a unilateral act by the prosecuting authority. Otherwise, no prosecuting authority could ever ensure that a summons was laid in time because the stopping of time was contingent on actions of persons other than the prosecutor.

The Divisional Court in Rockall v DEFRA considered that the decision in the Pontypridd case lead inexorably to the conclusion that, if it can properly be established, by inference or otherwise, that the information was transmitted to the magistrates' court's fax machine within time, that would be sufficient to constitute the laying of the information. The Divisional Court in Rockall v DEFRA considered that a prosecutor, at least in this context, commences his proceedings by laying the information.

Conclusions

It must be right that the ability to stop time from running on the limitation period must be within the sole province of the prosecuting authority. Otherwise some remarkably arbitrary results follow. For example, if there is a strike by members of the court staff, a situation could easily arise where a prosecutor had quite properly laid the information within time, but it actually opened after the limitation period. Further, it is an arbitrary distinction to have a fax lying on the fax machine as opposed to a fax that has been picked up off a fax machine and thrown on a desk.

Magistrates' courts across the country have been using for some time imaginative ways of jointly accessing electronic informations. The decision in Rockall v DEFRA is a welcome sign for the progression of these mechanisms.


http://www.articlebliss.com/Category/Legal/252

You Don't Have To Be Ruined Financially or Emotionally In A Divorce

It is no secret that people engaging in a divorce experience financial and emotional trauma that is only made worse by divorce lawyers and the adversarial system. So I am usually preaching to the choir when I tell horror stories of some of the cases I saw in the 8 years I practiced adversarial law. I was a child of a litigated divorce. I taught emotionally disturbed children from dysfunctional families for many years, I was a divorce attorney for eight years, and now I only do divorce mediation. Having witnessed our legal system from all sides, I can safely say that the whole context of how family disputes are settled in court today is not in the best interest of families. This is a call to arms. I am not even going to pretend this is an unbiased "news" article.

We who fight on the front lines on a daily basis, working with the emotionally vulnerable who feel as though the rug has been pulled out from under them know that the last thing a family in trouble needs is the "assistance" of counsel who could be throwing gasoline on the fire in order to line their own pockets. Most of you probably don't know that family law attorneys are the ONLY kind of lawyers in California whose fees are statutorily protected by the equity in the family home. Divorcing couples may not be aware that they agreed to a lien on their homes and a possible forced sale at the end of the case when they sign their lawyer's fee agreements. People need to know that they will get more and lose less by cooperating with their ex-partner than by litigating the matter.

Most people know what assets they have. No matter how much they earn, many people live paycheck to paycheck and there are usually no issues of hidden Swiss bank accounts. While this is the norm, any couple with equity in their home who both engage lawyers will soon see why the average contested divorce in our state costs $20,000 in attorney fees PER SIDE! And that is just an average. Most often, the more equity your home has, the higher the fees. Read Charles Dickens' Bleak House and you will see little has changed in the past 150 years.

First, the lawyers will engage in expensive discovery procedures, serving interrogatories and subpoenas for production of documents. In order to keep the case going, with the lawyer making as much money as possible, they will schedule depositions and hire forensic accountants and other costly experts. When couples trust their attorneys, it's hard for them to see they are being manipulated. It does NOT have to be this way!

Society needs to demand that divorce court be replaced by the more family friendly solution of divorce mediation. My own practice demonstrates what a sham the adversarial alternative is. I have a 100% track record with over 150 couples. When a lawyer has a powerful intention to help people find their bottom line fairly, efficiently and economically, cases settle without the expense, drama and irreparable harm to children and their co-parenting relationship, harm that is most always the result of a bloody and adversarial battle. Lawyers who are paid by the hour have no incentive to wrap it up. There is an inherent conflict of interest between the attorney, who wants to earn more money, and the client, who wants to save more money. When you are working on a flat fee, there is motivation to help couples come to a reasonable resolution without dragging it out.

An experienced attorney will usually have a good idea of how a judge will rule on a case. This is a community property state, and everything that falls into that category is evenly divided, and separate property is also well defined by statute. It just isn't that complicated. Now there may be cases where a business requires a forensic accountant to value, but you don't need to have a battle of the experts to testify why the husband or wife should get more or less money.

We have all seen the critical mass theory at work in our own lifetimes. For those unfamiliar with this theory, the simple explanation is that when enough people (thought to be somewhere between 3% - 5%) move in a certain direction, the rest of the population follows. Think I Pods, cell phones, recycling, health food, ending the war in Viet Nam, etc. It takes some time for the tipping point to be achieved, but whether it is 5% or 20%, at some point, when enough people get behind something, the change manifests throughout society. We can create a transformation in the way legal services are delivered not only in the area of family law, but all across the board. Mediation is applicable to every area where people have disputes.

As with anything unfamiliar, it takes a certain amount of education to show people the possibilities before they are willing to get on the bandwagon. But if law schools taught would be lawyers to encourage cooperation when marriages break down, more and more couples will hear the message of peaceful divorce and not necessarily think that divorce = court fights. We need more divorce attorneys who take their responsibility to protect their client seriously. I have never understood how these "zealous advocates" can justify draining a client's college fund for their kids so that the attorney's child can go to private school while the client's child is lucky to have lunch money. When people are informed and demand better than what is currently available, more and more law students will study mediation and develop a skill set that supports working with people who are breaking up.

It is my mission to help transform the way people get divorced in this country. Our children are depending on adults to join this crusade. Encourage your friends and family to work together if they have to get divorced. You can split a pie two ways or if lawyers are involved, 4 ways. Which way will you get more? Do you really have to pull the child apart? Don't you think YOU are in a better position to say how your child should be raised instead of lawyers, judges and other "experts." You don't want to start World War III with the parent of your children!!! Your child needs to be your primary focus, not how much money you can get out of paying or not being there when dad comes to pick up the kids. That kind of high conflict drama is totally unnecessary. Not only do consumers need to demand a new kind of divorce, but more lawyers need to recognize the damage caused to families by the legal practice as it is set up now. I hope more attorneys will walk away, as I did, and say, "NO MORE!"

We need judges to recognize who the most egregious of these attorneys are and sanction them, instead of holding them up to young lawyers to emulate. We need an informed public to tell their legislatures that it is NOT OK to give the Family Bar the right to drain the family home of equity through litigation that only comes to an end when there is no more money to be made. Our legal system is broken and we need to do something about it. Generations of children have been caught in the middle of fighting parents who are often encouraged to fight by lawyers who stand to gain. The more we focus on and promote mediation as the rightful solution to family law issues, the more momentum we will build. Who is with me?


http://www.articlebliss.com/Article/You-Don-t-Have-To-Be-Ruined-Financially-or-Emotionally-In-A-Divorce/121772

Pittsburgh Patent Lawyer

If you are located in the Pittsburgh area and have an idea for an invention, what do you do next? The most important step is selecting a competent, Pittsburgh patent attorney who can determine if it is patentable; obtain suitable patent protection for the invention; and, through direct entry or licensing, help you get the invention into business.

By using a local, Pittsburgh patent attorney, you’ll be able to keep in touch easily with the steps of obtaining a patent.

The first stage in selecting a patent attorney is obtaining information about attorneys who will provide useful legal representation. By searching the internet you can get a list of Pittsburgh based patent lawyers, or if you have friends who have worked with patent attorneys, this can be a good starting point. Local bar associations can frequently provide information, as can legal directories. The U.S. Patent and Trademark Office have a journal that lists patent attorneys and patent agents admitted to practice before the office. Yellow-page telephone directories also have listings of patent attorneys.

After obtaining the names of patent lawyers that you may find, the center of attention shifts to what information is needed to make a decision on whether a particular firm or individual can provide the preferred service. A critical factor in this phase is the rapport and how at ease the inventor feels to ask questions.

It is important to know the educational background, as well as legal education and patent experience, of the attorney, both in terms of years and the nature of experience. The attorney preparing and prosecuting a patent application must be admitted to practice before the U.S. Patent and Trademark Office.

It is important to ask about the legal fees; it is appropriate to determine what attorney's fees and disbursements are involved in proceeding with the work. Are there others in the law firm who are capable of doing portions of the job, with or without supervision, at a lesser rate, thus saving the prospective client money?

Since you’ll be working with the patent lawyer for approximately 6 to 18+ months after filing for your patent, the comfort level between you and your attorney or attorneys is very important. Evaluating patentability, obtaining a patent, and licensing the same involves a team project. The degree to which the inventor is able to help and wishes to participate actively is another variable that should be explored in terms of the manner in which the attorney prefers to work. It is appropriate to ask for client references and, to the degree to which client confidentiality is not involved, the opportunity to see examples of the individual's work.

As with everything else, no single set of questions will be fully sufficient for every situation. Questions related to items of particular interest to the potential client and items that provide unique circumstances for the case should be considered. In any event, it is critical that the potential client do a thorough job of asking all questions of interest and reach a comfort level with a particular attorney before entering into an attorney-client relationship.

If you are looking for a Pittsburgh Patent Lawyer, The Law Office of David P. Gaudio, P.C. formed The Inventors Network, Inc. with one purpose in mind: TO ASSIST INVENTORS! We are able to accomplish this in various ways, one of which is through education of the patent process.


http://www.articlebliss.com/Article/Pittsburgh-Patent-Lawyer/123884