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What is a General Practice?

A good way to think of a general law practice is to consider a general medical practice. Just as a general medical doctor can treat a broad array of illnesses, the ALP attorney is licensed to provide advice for any type of legal concern in the District of Columbia, Maryland, and Virginia. Obviously, the ALP attorney does not treat physical illnesses, but can provide effective legal remedies to a wide variety of "life problems."
In fact, did you know that the ALP attorneyâ��s graduate degree means â��Doctor of Laws?â�� So, although ALP focuses on business and estate planning, ALP is experienced in providing general legal counsel in a wide array of legal matters. In fact, it is ALPâ��s ability to provide a broad menu of legal advice that provides additional value to clients. Clients frequently come to ALP describing their perceived legal ailment only to learn that something unexpected is the cause of their concern. When a client enter's ALP's doors, ALP is prepared to treat the whole client. It is this informed holistic approach that enables ALP to help minimize or prevent harms related to your: In other words, ALP is able to help protect all that you are â�� from your physical and financial health to your rights to dignity, privacy, and freedom. It is ALPâ��s circumspect approach to legal counsel that distinguishes this practice. At ALP, the credo is â��Total Client Service.â��™ Back to Top

Harms to Your Health (e.g., Negligence)

Accidents happen. Injuries often result. Usually, nobody is to blame.

Sometimes, however, injuries result from the intentional, reckless or negligent behavior of another person or a company, or the products they sell.

Any of us can be a victim if a person or company does not responsibly exercise a reasonable duty of care to others. Because we choose to live in a civilized society, we have created laws that impose certain basic responsibilities on each citizen. Irresponsibility can result in legal liability.

This section presents the duties of care that the law imposes and the legal remedies for breaches of those duties (i.e., noncompliance).

Obviously, a person can be injured in many ways. Many injuries are physical, but also may involve emotional trauma or harms to human dignity. Defamation, Assault, Intentional Battery, Recklessness, Negligence, Product Liability, and Defective Products are just some legal bases for legal liability for the personal injury of another person.

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Intentional Battery or Assault

There are civil and criminal versions of the offenses known as assault and battery. This section addresses only the civil versions of the offenses.

As far-fetched as it may seem, please consider the following hypothetical scenario: A man swings a bat as a weapon at an unarmed intruder of his land, misses, and fractures the skull of the dog that his houseguest is holding by a leash.

Civil Assault is an intentional act that causes a person to reasonably apprehend imminent harmful or offensive physical contact to which he has not consented. In plain English, if someone makes a fist and gestures as though they will hit you, but stops short, you may have been the victim of assault. This is just one illustrative example; assault can take many forms. Fear is not required. All that is required is a reasonable understanding that harmful or offensive contact will happen at that moment.

Civil battery is the intent to do an act that would cause the harmful or offensive touching of another person, or a reasonable extension of that person, without that person�s consent. In plain English, you may have been battered if someone strikes you, or something reasonably connected to you, and you did not provide consent to being hit.

VigilantIn the case of the hypothetical scenario above, the intruder may have a claim of assault, as absurd and unjust as that might seem. For purposes of establishing civil assault, if it can be established that the intruder apprehended that the bat would contact him and do him harm, then the landowner�s action would constitute an assault. Now, you may be thinking, �But it was an intruder!� First, a court would analyze any affirmative defenses to liability separately from the primary claim. Proving an affirmative defense to liability is a separate issue with a separate burden of proof. Second, as shocking as it may seem, there probably is no affirmative defense to the claim of assault based on the hypothetical facts presented. On these facts, the intruder basically is a mere trespasser. There is nothing to indicate that he intended to do anyone harm (mere intrusion on land probably does not justify an inference of an intent to do harm). On these facts, the trespass does not justify assault and cannot serve as the basis of an affirmative defense.

If you still feel sympathy for the landowner, consider that a claim of self-defense is available only where the level of force used is commensurate with the threat posed. There is no indication that the intruder threatened or used any force against the landowner. In fact, he was unarmed. Even if he had swung his fist at the landowner, the most the landowner could legally do to defend himself would be to use his fists. He would not be justified by retaliating with a baseball bat. In addition, use of force merely to defend property never is justified under the law � there must be some reasonable belief of imminent harm to persons.

Finally, the owner of the dog might have a valid claim of battery against the landowner. First, the dog probably would be considered a reasonable extension of the houseguest�s person. Some cases have suggested that kicking someone�s dog, hitting the car in which he sits, or knocking a hat out of someone�s hand constitutes battery against the person. Now, you might be thinking that the landowner had intended to hit the intruder, not the houseguest or his dog. You would be correct. However, the standard for the required mental intent is that the defendant intended to do some act (literally �move a muscle�) that with substantial certainty would cause harmful or offensive contact without consent. It does not matter that the defendant failed to hit his intended target. It is sufficient that he intended to hit someone. In this way, courts sometimes will employ the doctrine of �transferred intent� literally to transfer the intent from the target to the actual victim. In this case, the landowner did an act (swung a bat) at the intruder and instead hit a reasonable of the houseguest -- his dog. The houseguest could have a valid claim of battery. Back to Top

Injuries as a Result of Negligence

Negligence is a civil offense that consists of four elements: (1) a duty of care; (2) breach of the duty of care (i.e., noncompliance); (3) causation; and (4) damages. For a basic understanding of how a negligence claim works, please consider the following hypothetical situations:Scotus

1) A lifeguard�s attention is devoted to eating a pizza while a young child drowns in two feet of water 100 feet away.

2) An automobile collides with another car after the driver loses control of her car because she experienced an epileptic seizure.

3) A doctor ignores a stranger lying in the sidewalk before him who has been knocked unconscious by a mugger just moments ago. The man dies as a result of blood loss from stab wounds in his left arm.

A duty of care may arise in many different ways. The lifeguard in the first hypothetical above has a duty of care that arises through an employment contract. It is his job to protect swimmers in areas under his responsibility. Family members have duties of care to each other. Even complete strangers have duties of care to other people to the degree a reasonably prudent person would exercise care under the circumstances. Thus, the driver in the second hypothetical above must drive with reasonable care for others. In fact, although her involuntary movement of muscle caused the accident, the driver could be found liable if she had, for example, knowingly skipped a dose of medicine necessary to prevent the epileptic episode. Interestingly, the doctor has no duty of care to a stranger. The doctor is in no way obligated to help and generally cannot be held liable for failing to help a stranger. In fact, the doctor can be found liable for battery if he begins to help the stranger and leaves him in worse condition than he found him. There are many other ways that a duty of care may arise, notably including when a statute imposes a duty of care.

The failure to exercise due care must directly cause damage to some person. The causation must flow directly from the breach of the duty of care. As courts say, but for the failure to exercise due care, the damage would not have occurred. The breach must be the sine qua non of the harm. This also is known as �but for� or �actual causation.� Sometimes there may be one or more causes of harm, in which case there may be no liability (such as when there is a substantial intervening cause) or liability may be apportioned among different causes according to the relative degree of causation.

In addition to actual causation, there must be legal causation, which often is referred to as �proximate causation.� Legal causation basically means that the results of carelessness cannot be too remote or liability will not be allowed as matter of law. The cause of harm must be �proximate.� If a victim is outside the foreseeable �zone of danger� and is injured, there generally will be no liability for negligence. In other words, a court will look at the situation and determine what harms from the carelessness were foreseeable. Then the court will consider whether the victim was included within that foreseeable zone of danger. If the answer is no, there is no negligence.

Finally, damage must be done. If there is no damage, there can be no claim in negligence. If there is damage, it usually is necessary to place a dollar figure on the damage. Actual damages might be relatively easy to calculate where there has been medical treatment, but often the calculation of damages can become a mini-trial on that issue alone. Back to Top

Injuries as a Result of Recklessness

Consider the following hypothetical situation:

A skier races down a hill, launches off a snow bank, loses control, and accidentally lands on a woman, who is permanently paralyzed as a result of the accident.

Recklessness is the voluntary confrontation of a known hazard or danger and a conscious disregard of potential consequences.

In the case of the skier, he did not know that there was a woman on the other side of the snow bank. How could he have a duty to her when he did not know she was there? It is precisely his lack of knowledge that could form the basis for a recklessness claim: He knew that he did not know whether there was a person on the other side of the snow bank. If a reasonably prudent person would have checked before jumping, the act of jumping off the snow bank could be the voluntarily confrontation of a known risk (i.e., the risk that a person might be on the other side of the jump). In other words, it does not matter that the skier did not know that there was a person on the other side of the jump; he should have known.

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Injuries as a Result of Defective Products

A defective product is any manufactured good that harms a person or a pet because of a flaw or inadequacy in its design, manufacture, labeling, or use. A product�s design is defective when there is inherent danger or the product is useless. Manufacturing defects usually result from low-quality materials or inferior workmanship during fabrication. Inadequate labeling or �failure-to-warn� defects occur where products present intrinsic dangers that are not obvious and that could be reduced by adequately warning the user. Attorneys and courts usually base the liability for product defects (�product liability�) on strict liability theory, which basically means that dangers are present regardless of the skill involved in manufacturing or designing the product for its intended purpose. However, an attorney may also rely upon standards of negligence, breach of warranty, or various consumer protection laws of the states. Urn An attorney might use the rules of evidence to demonstrate that the risks presented are greater than any the product�s purported benefits (this argument has been applied to handguns) or that the product fails to meet reasonable consumer expectations about safety (this has been used with chainsaws that do not have anti-kickback protections). A court may hold every entity in the chain of commerce leading to the consumer � the manufacturer, distributor, and retailer �liable for injuries caused by a defective product. Each state permits some type of cause of action for persons injured by defective products.

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Harms to Property (e.g., Car Accident)

Negligence is the main cause of action that attorneys use in automobile accident cases. As explained in the general discussion of negligence above, the plaintiff carries the burden of proving that the other driver breached (i.e., contravened) a duty of care that caused injury to the plaintiff. To establish a breach, an attorney may show, in a manner consistent with a court�s rules of evidence, that a driver was moving at an unreasonable rate of speed (if, for example, the attorney can prove that the driver traveled faster than the posted speed limit), that the driver did not properly control his car (if, for example, there is evidence showing that the car moved erratically through traffic in the moments prior to an accident), or the driver�s actions created an unreasonable risk that could have been reasonably foreseen and avoided (an extreme example might be an epileptic who intentionally did not take anti-seizure medicine). The plaintiff�s attorney also must establish that the breach of duty caused the injuries. It is here that an attorney may find major defenses to a negligence claim: contributory negligence and assumption of risk. Contributory negligence occurs when the plaintiff breached a duty and consequently contributed in some degree to the injury that he suffered. Some states preclude a plaintiff from recovering any monetary award when he has been contributorily negligent, even in the slightest way; other states allow for a comparison of the degrees of fault in order to establish and apply a ratio to any monetary remedy (so-called comparative negligence). Assumption of risk also is a valid defense when the plaintiff acknowledged the risk of injury and knowingly accepted the risk.

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Harms to Reputation (e.g., Defamation)

Defamation (Slander and Libel)

Defamation is a derogatory remark injurious to another person�s reputation that identifies that person and is shared with at least one other person. Generally speaking, to create liability for defamation there must be:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

See Restatement (Second) of Torts § 558. Defamation can take the form of Libel (written defamation) or Slander (spoken defamation). Typically, courts treat libel more seriously than slander. The written word is fixed in form and therefore is more permanent in nature. It can be reproduced and shared infinitely. On the other hand, because slander consists of spoken words, it is ephemeral and tends to dissipate with time. Thus, assuming that the content of a slanderous statement and a libelous statement are equally derogatory, courts generally would consider Libel more harmful.

In most cases, a plaintiff in a defamation suit would need to allege, establish and measure, in dollars, the actual damage to his reputation that resulted from the defamation. The calculation of such damages is beyond the scope of this writing. However, in certain kinds of �per se� defamation, actual damages may not need to be alleged. This occurs where a state statute declares that the defamatory statement is damaging and provides a schedule of damages. Types of defamatory statements that fall into this category include statements impugning the ability of a person to practice their business, trade, or profession, statements alleging serious sexual misbehavior, allegations that a person has a foul or loathsome disease, and accusing someone of committing a crime.

When the person is a public official or public figure, courts allow defamatory statements to be made so long as there is a good faith belief that the statement is true. Where the plaintiff is a public official or famous person, he must prove that the defendant acted with actual malice. That is, the defendant must have made a statement to a third party that while knowing it is false or with a reckless disregard for its truth or falsity. In addition, legislators and councilpersons often are exempt from defamation liability for statements they make while in the well of the legislative chamber or while the legislature or council is in session.

Finally, truth always is an absolute bar to a defamation allegation. If a derogatory statement is demonstrably true, then a claim of defamation would have no merit. However, assertion of this defense would have to occur as an affirmative defense in a case, so it will not serve to prevent a plaintiff from filing a complaint.

Please consider this hypothetical situation: An activist well known around Washington, D.C. is in the Senate Finance Committee�s audience gallery during a legislative hearing. She is reading a newspaper article about how a Senator, who sits on the panel, had been convicted of embezzlement in 1974. The woman stands in the audience and shouts that a famous U.S. Senator on the panel �is an embezzler who shouldn�t be trusted with taxpayer money.� The Senator responds by stating, �Let the record reflect that I know this woman, and she was convicted of lying under oath. She is the one who can�t be trusted.� The Senator�s statement was recorded by the Senate stenographer and placed in the Congressional Record. It turns out that the newspaper article erroneously reported that the Senator had committed the embezzlement when a person sharing his name actually had committed the crime. The newspaper printed a retraction.

Now, in the situation above, the Senator could initiate a court case for slander against the woman (she shouted the allegations, so it is slander). The Senator could further allege that he does not need to prove actual damage because, as provided by the state statute, the activist�s statement was per se injurious to his professional reputation and ability to perform his job as a Senator. He still could allege actual damages, but the statutory damages serve as a floor. However, the woman in her defense answer could assert that her statement was true. The Senator, of course, likely would respond by pointing out a retraction in the same newspaper to demonstrate that the story was false. The activist might counter-argue that because the Senator is a public figure, he must show that the activist knew that the content of her statement was false or had a reckless disregard for the truth or falsity of her statements. The activist likely would argue that the newspaper generally is a reliable source of information, that the newspaper identified the Senator as an embezzler, and that, accordingly, she believed that the statement that the Senator was an embezzler was true.

The more interesting, and more difficult, question is whether the Senator could sue the newspaper successfully for libel. The answer to that question would require very fact-specific analysis of such things and the level of professional quality and depth of the investigative reporting. Like the activist, the newspaper probably would assert that actual malice is required and absent. The newspaper also probably would assert journalistic privilege in response to any attempt to coerce release of its documents and notes regarding the newspaper article. However, attempts to assert journalistic privilege, which is a qualified privilege to protect anonymous sources, have had only limited success.

Turning to the Senator�s statements about the activist, the activist could initiate a suit for defamation against the Senator or could allege defamation as a counterclaim in the defense answer to the complaint. The Senator made a statement alleging that the activist committed the crime of perjury. If false, this would constitute a per se case of slander. In addition, the statement could constitute libel because even though the Senator only spoke the words, he directed that is words should be placed into the Congressional Record, the written record of congressional proceedings. The Senator, however, likely would succeed in having the case dismissed as a matter of law because statements made while serving in a session of a legislative committee generally are immune from defamation suits by operation of law.

This exposition merely describes the most basic aspects of defamation law. There are many other issues, including constitutional law issues. In addition, the law of defamation varies from state to state. Back to Top

Harms to Privacy (e.g., False Light)

False Light

GardenFalse light is a civil tort (i.e., personal injury) cause of action arising out of the so-called right to privacy. In the United States, the right to privacy includes a person's right to be free from publicity that depicts them in a false light.

In general terms (and subject to state-specific nuances), a false light claim consists of the following elements:

1. Publication: The defendant published the information widely (i.e., not to just a single person, as in defamation);

2. Identification: the publication identifies the plaintiff;

3. Misimpression: it places the plaintiff in a "false light" that would be highly offensive to a reasonable person; and

4. Causation: the defendant was at fault in publishing the information.

See Restatement (Second) of Torts § 652E. Courts typically balance this privacy right against the First Amendment right of free speech.

False light differs from defamation primarily because it protects the plaintiff�s "mental or emotional well-being," whereas defamation is intended to protect a plaintiff's reputation as is the case with the tort of defamation. In addition, truth is not a defense to false light if the impression created is sufficiently misleading as to cause injury.

However, because a claim of false light often can arise out of the same facts giving rise to a defamation claim, some states do not recognize a separate cause of action for false light. It appears, for example, that Virginia, New York, Massachusetts, and Texas do not recognize the tort of "false light."

Where false light is recognized as a legal cause of action, there are many different formulations of the "false light" cause of action. The specific elements of the cause of action vary from state to state.

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Threats to Freedom (e.g., DWI)

DUI/DWI, Automobiles, Traffic Violations

It is a crime in every state to operate a motor vehicle while impaired or under the influence of drugs or alcohol. States refer to this crime by many different names, including driving under the influence (DUI), driving while intoxicated (DWI), or even operating under the influence (OUI). For simplicity�s sake, this article will refer to this crime only as DUI.

States prosecute DUIs vigorously, and the laws are stacked against the defendant. The state prosecutor can establish impairment by alcohol or drugs in many ways. He can rely upon the testimony of an officer or written records relating to observed driving behavior or field sobriety tests. He can refer to bright-line standards for measuring intoxication by means chemical tests designed to identify the levels of alcohol or drugs present in your blood, which can lead to a statutory presumption that the driver was under the influence. The crime can be established by any one of these tests, or any combination of them. It also can be proven by circumstantial evidence (without direct proof that the defendant was driving while intoxicated).

Under the Fourth Amendment search-and-seizure jurisprudence, a routine traffic stop is a �seizure.� A police officer may stop any vehicle when he reasonably suspects that the driver is engages in criminal activity, including, but not limited to, violations of traffic laws. During a routine traffic stop, the officer generally can search the compartment of the car without probable cause. When an officer suspects that a driver is intoxicated, the officer typically will perform a field sobriety examination of the driver. This test may consist of requesting the driver to voluntarily demonstrate his cognitive and physical capabilities by performing a number of activities that can indicate alcohol and other substance abuse. The most common field sobriety tests include the �walk and turn� test, the �one-leg stand� test, and an officer�s use of a penlight to test a suspect�s eyes for involuntary movement (the �horizontal gaze nystagmus� test). Additional tests can include the alphabet test, the numbers test, the nose-touch test, and the finger-touch test.

In addition, an officer may conduct chemical tests at a routine vehicle stop through use of a hand-held breath-testing device (commonly referred to as a �breathalyzer�), which is device that measures blood-alcohol concentration (�BAC�). Blood-alcohol levels also can be measured at a hospital through blood or urine tests, although most states have laws limiting the time between arrest and testing. Some states give a suspect a choice about which test will be used.

Because chemical tests can conclusively prove whether a person is intoxicated, as defined by state-defined blood alcohol concentration levels, there often is a reluctance to cooperate. Many wonder whether they should refuse the test. Every state has what is called �implied consent:� by use of the state�s roads, you are deemed to have consented to the state�s laws and procedures, including use of chemical tests if a law enforcement officer reasonably believes that you are operating a vehicle under the influence of alcohol or drugs. If you refuse to cooperate with the chemical testing, state laws typically impose harsh penalties like mandatory suspension of a driver's license for up to one year and, in certain circumstances, jail confinement, a fine, or both.

The limit of blood-alcohol concentration that is conclusive proof of intoxication is now .08 in every state. However, amounts below this level are not safe harbors. In other words, one can be convicted of drunk driving even when the blood alcohol concentration is below this level, if there is other persuasive evidence. An officer�s testimony about erratic driving behavior, the results of a field sobriety test, or other observations of you may be sufficient to establish in court that you were driving while impaired.

Criminal penalties for a DUI/DW conviction are very stiff, and increasingly so. States typically include fines, jail time, probation, and community service as penalties. Some state laws require penalties for first-time offenders, with increasing penalties for subsequent offenses. At sentencing, a court of law typically will consider the totality of the circumstances and a variety of factors, including whether there is a history of DUI violations, whether there was a child in the vehicle, whether there was a car accident causing property damage, injury, or death, and whether the driver was under the legal drinking age. It is important for a defendant to consider remediation programs and therapy or counseling, as a judge may be inclined to consider these as factors at sentencing.

There are many other serious traffic violations that are not based on intoxication, including reckless driving, aggressive driving, attempt to elude an officer, hit-and-run, unlicensed driving, and driving a commercial vehicle while disqualified. Back to Top