April 2016 - Kamerow Law
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Which Laws Govern if Parties from Different States Litigate?

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Which Laws Govern if Parties from Different States Litigate?

When a plaintiff from one state sues a defendant from another, a conflict of laws arises. The questions of which state’s courts will handle the case and which laws will apply often arise in the Washington D.C. Metropolitan area, which sees interaction among citizens of the District of Columbia, Virginia, Delaware, New Jersey, and Pennsylvania. The legal dynamic of multiple, intertwined jurisdictions within a set of occurrences that give rise to a case often creates issues that can be difficult to solve in a fair manner. In general, a set of rules has been created by historical interactions between state courts, as well as those between state and federal courts. These rules attempt to make the best decision with regard to fairness and the interests of the parties and states involved. These rules sometimes involve one court hearing a case but using the laws of another state, at least in part, to hand down a decision. Although complex, some basic principles in these rules apply to some common cases.

Jurisdiction of Court Hearing the Case

One case might have significant ties to several states. Before any court makes any decisions regarding which laws will govern a case, a court must decide that it has the proper jurisdiction to hear the case, itself. The domiciles of the parties, property, and locations of occurrences bear on this question of jurisdiction, as does the type of case.

If a court decides a case without sufficient grounds to do so, the decision might be ruled unenforceable by another court in another jurisdiction.

Once a case is decided, res judicata applies and the case is settled in finality. This principle establishes that any particular legal dispute cannot be heard in more than one court unless a higher court decides to hear the case on appeal.

Forum Shopping

Rules governing the question of venue have been established to prevent forum shopping. This practice involves the selection from all possible choices of venue by the plaintiff to take advantage of the one with laws most amenable to the case. The unfettered choice by plaintiffs regarding which state will hear a case has led to unfair results and has given rise to rules that now serve to determine the forum.

Diversity of Citizenship

If each and every party who is a plaintiff in a case is the resident of a different state than each and every party who is a defendant, that case will one of Diversity of Citizenship and shall be the exclusive jurisdiction of the Federal Courts. This rule was established, in part, by responding to the difficulty that could be faced by defendants such as a California resident being hailed into a Maine courtroom.

Situs

For litigation involving land or real property, the situs rule establishes that the jurisdiction encompassing the property will hear the case and apply its own laws. The rationale is simple: the state in which the property is located has the greatest interest in how that property should be treated.

Personal Injury and Other Claims in Tort

For cases involving harm caused by one party to another, the jurisdiction encompassing the scene of the harm will usually serve as the venue of the litigation and will usually use most of its own laws to govern such cases. The idea here again is a straightforward one. When a citizen enters a territory, that citizen is subject to the local rules and customs of that territory and should act accordingly.
If you have a legal cause of action and have questions regarding which jurisdiction will handle the case and which laws will apply, contact the attorneys at The Kamerow Law Firm, PLLC for a free and confidential initial consultation by calling 703-370-8088.

When Can Deadly Force Be Used In Virginia?

In each of the 50 United States, a person has the right to defend one’s self or another from unlawful attack. This includes the right to stop a deadly attack by responding in kind with deadly force. At times, circumstances under which deadly force are used might be somewhat murky with respect to justifiability, and can also be difficult to prove after the fact. Although states have varying rules with regard to the manner in which one defends life or limb, certain commonalities exist. In general, if one is in reasonable fear of suffering imminent death or great bodily harm from an unlawful attack by another, that person is justified in the use deadly force against the attacker. Two portions of this doctrine repeatedly arise as points of contention.

Imminence of Harm

Reasonable fear of suffering death or great bodily harm alone, does not suffice in justifying the use of deadly force in self-defense. A necessary element is the immediacy of the harm. To illustrate, consider circumstances in which a known gang member with an established history of homicide threatens a person who is engaged in no illegal activity. A dispute arises, in which the gang member, known by the victim to be a prolific assassin, verbally and explicitly threatens to kill the victim by walking to his car, which is less than 75 feet away, retrieving his gun, and shooting the victim. The victim of the threat, recognizing the veracity of the threat by virtue of knowledge of the history of the gang member, takes preventive measures to save his life and stops the attack from happening by shooting and killing the one who threatened him. Here, the victim of the threat will not be justified in the use of deadly force to stop an attack because the threat lacked immediacy. In other words, the threat of suffering a gunshot, however real, was not about to occur right then and there, but rather in the time it would take for the offender to walk to the car and retrieve the gun. This delay lacks the imminence required to use deadly force.

Reasonable Fear

It is not necessary that one who acts in self-defense is found to be in actual jeopardy of suffering death or great bodily harm. This has opened the door to great controversy, as is reflected by current discussion of “Stand your Ground” laws. The following fact pattern might clarify the standard of reasonableness that is necessary in possessing a “reasonable fear” in conjunction with justifiable use of deadly force to stop a deadly attack.

An offender who presents a silver colored revolver and presses it against her rib cage accosts a victim who is engaged in no illegal activity. The attacker verbally threatens to kill the victim and demands her wallet. The victim is lawfully carrying a concealed firearm of her own and seizes an opportunity to stop the attack by drawing her firearm and shooting the attacker, thereby causing the death of the attacker. Subsequent investigation by police reveals that the attacker’s handgun was unloaded, and therefore incapable of producing death or great bodily harm to the victim by virtue of the way it was used. In this case, the victim was under no threat of being killed by the handgun.

Despite this lack of jeopardy, the law recognizes the “reasonable fear” experienced by the victim of the attack as a justifiable reason to use deadly force in stopping the perceived deadly attack. Through no fault of her own, courts will recognize that she reasonably was induced to believe that she was under the threat of immediate gunshot, and does not fault her for the bad planning of the felonious attacker. In cases in which deadly force is used, the level of fear and belief experience by the victim must rise to the same certainty as the one in the above scenario in order to justify use of deadly force. If the alleged fear experienced by one using deadly force in self-defense lacks the same reasonable quality, it will not rise to the level at which it will be recognized as a valid defense to criminal charges related to homicide.

Contact A Legal Representative

If you or a loved one has been involved in an attack involving self-defense, whether accused offender or victim, learn your rights. Contact the attorneys at the Kamerow Law Firm, PLLC to learn how we can represent you in your case by calling 703-370-8088.

 

When Can A Will be Invalidated?

Although rules vary by state, some commonalities exist with regard to the validity of a will. For a will to be valid initially, there are three requirements;

  • Age: The testator must be of legal age in his home state at the time the will is drafted, which is usually at least 18 years of age. Reaching the age of adulthood subsequent to creation of a will does not satisfy this requirement.
  • Mental capacity: This requirement carries a low standard. Lack of mental capacity does not arise out of illiteracy, eccentricity, general craziness, or even confinement to a mental hospital. Three conditions must be met: a) testator understands the nature and extent of the property owned; b) testator understands the people who are those to whom property might be left, or to whom property might not be left; and c) testator understands the significance of making a will.
  • Current testamentary intent: Language in the will must affirmatively establish the current intent of the testator to hand down a specific parcel of property to a named heir after death, and cannot reflect the future intent to assign property. It is important to note that the testator to be validly willed to an heir need not currently own property. So long as the property mentioned in the will is gained prior to the death of the testator and owned at time of death, that portion of the will assigning that property is valid. Also, conditional language in a portion of a will shall not cause invalidation, and so long as conditions expressed in the will are met, that portion of the will shall be valid.

Even if the above three conditions are met, a will, in whole or in part, might be invalidated by other overpowering forces influencing the terms of the document. Also, wills made validly and subsequently shall invalidate and replace the prior document.

Undue Influence

Undue influence supplants testamentary intent of the testator with the desires of the person exerting the undue influence. In other words, coercion is used to manipulate the terms of the will contrary to the desires of the testator. A testator being elderly, in poor health, and isolated from others but readily accessible to the person exerting influence can allow undue influence. Sudden changes in distribution or patterns of distribution that seem inequitable or contrary to longstanding intentions of the testator can be indicators of undue influence.

Fraud

This overpowering and invalidating force has the same effect as undue influence, but lies and deceit are used instead of coercion. A mere mistake on the part of the testator or one assisting the creation of the will does not constitute fraud. Other circumstances can also invalidate a will.

Contact an Experienced Legal Help

If the will of a loved one seems to convey terms contrary to the nature of that person, protect the property at stake and learn your rights. Contact the experienced estate lawyers at the Kamerow Law Firm, PLLC  at 703-370-8088 for a free and confidential consultation and to learn how we can be of assistance during this time.