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Anti-Lapse Statutes
2007-07-18 22:00:00
Most states have anti-lapse statutes. Black's Law Dictionary Sixth Edition defines 'anti-lapse statute' as legislation enacted in most jurisdictions to provide for the testamentary passing of property to heirs and next of kin of the designated legatee or devisee if he dies before the testator, thus preventing a lapse of the legacy and the passing of such property through intestacy to the heirs and next of kin of the testator. In other words, the anti-lapse statute prevents the bequest or devise from failing to vest because of the death of the devisee or legatee prior to the death of the testator. The statute expresses a presumed intention of the testator, that may be overcome by expression of a contrary intent in the will. The legacy will go to to the heirs and next of kin and if there are none, then to the residue. Michigan has an anti-lapse statute which can be found at
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Expunging Criminal Records - Michigan
2007-07-13 05:59:00
Expunging criminal records is addressed in Michigan Public Act 1965, entitled, Setting Aside Convictions, and codified at MCL 780.621 to MCL 780.624. According to the law, a person is eligible to file an application to expunge a criminal record if they have been convicted of not more than one criminal offense; it has been at least five years from the conviction or imprisonment; and the conviction was not for a felony / attempt for which the maximum punishment is life imprisonment, a crime involving rape or a traffic offense. The application fee is
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"Registration" of Wills
2007-07-10 16:04:00
A will does not have to be "registered" for it to be valid. Filing it with the probate court in the county where the testator resides is for safeguarding purposes only. It is a good idea to ascertain whether there are wills that have been previously "registered" / filed, which should ideally be revoked and destroyed so that they are no longer on file. Doing this will prevent confusion over which one is the testator's true last will and testament. This can be performed by requesting of the probate court that your prior wills be revoked and destroyed. ©2007www.lawrefs.com
More About: Wills , Probate , Registration , Regis , Stration

What Happens When Creditors Take You To Court
2007-07-09 15:54:00
If the collector sues and proves that you owe the money claimed, a judgment can be entered for that amount plus costs. The collector can then attempt to collect from you on the judgment but only under the provisions of the Fair Debt Collection Practices Acts and this time with the ability to attach assets such as your car unless you use it for work, and garnish your wages if you net more than $125 week, or intercept your Michigan income tax returns. However, before a judgment is entered and if the creditor will not agree to accept a lesser amount each week or month, then you can petition the court for installment payments using a "petition for installment payments" which is a form (numbered MC15) that you can obtain at the website for the Michigan courts supreme court administrative office (SCAO). If you do get garnished, you can file an "objection to garnishment and notice of hearing", which is form MC49 providing for objection on the basis of exempt funds or property, pending ba...
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Is a Motion Required to Take a Child out of State when there is an Order in
2007-07-08 16:22:00
According to the Michigan CHILD CUSTODY ACT OF 1970, MCL 722.31 Legal residence change of child whose parental custody governed by court order, Sec. 11. (1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. *Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued.* (2) A parent's change of a child's legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. *This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.* (3) This section does not apply if, at the time of the com...
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When Does Bad Credit Stop Showing Up On Your Credit Report
2007-07-08 15:51:00
Under the Federal Fair Credit Report ing Act, 15 USC 1681c, accounts placed for collection or charged to profit and loss which antedate the report by more than seven years must be excluded from the report. There are exempted cases where the principal amount of the credit transaction is $150k or more, as well as a life insurance contract of that value and a credit report used in connection with the employment of an individual at an annual salary of $75k or more. ©2007www.lawrefs.com
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Michigan Runaways
2007-06-30 07:36:00
Can a 17 year old leave home without permission? No. If the individual is under age 18, they are a “minor”. MCL 722.1. The age of majority in Michigan is 18. MCL 722.52. A child can leave home with permission, however, it is still the parents obligation to support their minor children unless the court modifies or terminates the obligation via a petition for emancipation, or the minor is emancipated by operation of law. MCL 722.3. “Emancipation” means
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Medical Malpractice Statute of Limitations - Fraudulent Concealment
2007-06-27 06:12:00
Under MCL 600.5838a, a claim based on the medical malpractice of a person or entity who is or who holds himself or herself out to be a licensed health care professional, a licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. Subsection (2) provides: Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced...
More About: Medical , Medical Malpractice , Stat , Once , Lent

Eviction for Controlled Substance Violation
2007-06-26 05:55:00
Attorneys do well to advise their criminal defendant clients that their controlled substance violation could get them evicted. If the client is renting property under a lease containing a provision that they can be evicted for a controlled substance violation on the property, and the landlord files a police report regarding the violation, the landlord can then evict the tenant with only 24 hours notice. According to MCL 600.5714(1)(b),
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A Valid Michigan Will
2007-06-23 06:01:00
In order to make a valid will in Michigan , an individual has to be at least age 18 and of sound mind. The will has to be in writing and signed by the testator (will maker) or in their name by some other individual in the testator's conscious presence and by their direction. In other words, as to a person creating the will who cannot physically sign the document for example, he could direct another individual to sign for him in his presence. The will also has to be
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Penalty for Carrying Concealed Weapons
2007-06-21 20:32:00
The penalty for carrying a concealed weapon is defined in MCL 750.227 Concealed weapons; carrying; penalty. Violation is a 5-year felony. Sec. 227. (1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person. (2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon...
More About: Weapons , Once , Weapon , Carrying , Penalty

Possession Marijuana
2007-06-21 19:51:00
This falls under MCL 333.7403(1)(2)(d) and is a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or both. Under MCL 333.7408a, there are also licensing sanctions for conviction. If no priors then the operator's license is suspended for six months with restricted license possible after 30 days. If priors, then suspended for 1 year with restricted license possible after 60 days. The license is surrendered at the sentencing hearing. In order to prove this crime, the prosecution bears the burden of proving beyond a reasonable doubt that the person knowingly or intentionally possessed the substance which has been tested positive for marijuana.
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Prostitution Solicitation
2007-06-21 16:54:00
Whether the punishment for prostitution / solicitation is a misdemeanor or felony depends on prior convictions. According to MCL 750.448 soliciting, accosting, or inviting to commit prostitution or immoral act; crime, a person 16 years of age or older who accosts, solicits, or invites another person in a public place or in or from a building or vehicle, by word, gesture, or any other means, to commit prostitution or to do any other lewd or immoral act, is guilty of a crime punishable as provided in section MCL 750.451. MCL 750.451 violation of §§ 750.448, 750.449, 750.449a, 750.450, or 750.462; prior convictions; penalty; definition, provides:
More About: Prostitution , Citation , Soli , Prost , Rosti

Search and Seizure - Evidence
2007-06-20 22:01:00
To search and seize evidence, reasonableness is again the mainstay requirement. In order to meet this requirement, a warrant is required unless one of the six exceptions applies. Consider however, that in order to get to the point of requiring a warrant, one must first have a reasonable expectation of privacy in the place searched or item seized, because without this, there is no Fourth Amendment right to protect. There is no expectation of privacy in objects held out to the public such as handwriting, smells, sounds, etc.; or in areas "held out to the public". A valid warrant is one that is issued by a neutral and detached magistrate, based upon probable cause and particularly describing the place to be searched and items to be seized. The six exceptions to the warrant requirement are:
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Search and Seizure - Arrests
2007-06-20 20:52:00
The Fourth Amendment to the United States Constitution provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Translation: No unreasonable search and seizures and no warrant unless there is probable cause, an oath, and a particular description. A foundational element for this right is that the individual has a reasonable and justifiable expectation of privacy because if not, then the government can intrude. Government intrusion into an are that is reasonably and justifiably private is a search, whereas, a seizure is the exercise of control over a person or a thing. Michigan v Chestnut, 486 US 567 (1988) helps define what is a seizure. When a reasonable individual would assume that the...
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Michigan Ticket Scalping
2007-06-15 02:46:00
In Michigan , selling tickets for more than their face value a.k.a. scalping, is a misdemeanor (90-days / $100 fine). See MCL 750.465(6). If people / entities are getting away with scalping tickets then it is because either the law just isn't being enforced in that particular county, or they have found the loophole and are exercising
More About: Criminal Law , Ticket , Ping , Tick

Some Bankruptcy Considerations
2007-06-13 15:40:00
Only file for bankruptcy if your credit card and other dischargeable debt exceeds the value of your nonexempt assets (e.g., cash, bank accounts, tax refunds, etc.) by at least two thousand dollars, because with a bit of attorney help, a settlement could be worked out with the credit card companies. Chapter 7 is the best option if you want to discharge debt whereas Chapter 13 is to be considered if you are considering working out payment plans. The Chapter 7 filing fee is
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Personal Injury - Homeowner's Dog Bites Salesman
2007-06-12 17:37:00
When your dog personally injures / bites a solicitor who is on your property which has a sign warning of your dog, but not prohibiting solicitation, you can still be sued. The salesman will argue that he was was lawfully on your property because you did not have a "no solicitation" sign, and your dog bit him without provocation. Your response should be to argue that he was a trespasser, unlawfully on the property because you did not invite him and your dog warning sign is evidence that he was to keep away, and that he either intentionally or unintentionally provoked your dog. MCL 287.351 applies. If a dog bites a person, without provocation while the person is lawfully on the property of the owner of the dog, the owner shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. The salesman must prove that:
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Personal Injury : Homeowner's Dog Bites Salesman
2007-06-12 17:37:00
When your dog personally injures / bites a solicitor who is on your property which has a sign warning of your dog, but not prohibiting solicitation, you can still be sued. The salesman will argue that he was was lawfully on your property because you did not have a "no solicitation" sign, and your dog bit him without provocation. Your response should be to argue that he was a trespasser, unlawfully on the property because you did not invite him and your dog warning sign is evidence that he was to keep away, and that he either intentionally or unintentionally provoked your dog. MCL 287.351 applies. If a dog bites a person, without provocation while the person is lawfully on the property of the owner of the dog, the owner shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. The salesman must prove
More About: Personal , Injury , Person , Meow , Persona

Copyright Protection of "Databases"
2007-06-11 07:18:00
Copyright law is covered by the Copyright Act of 1976, codified at 17 USC s 101 et seq. Some pertinent sections include, Sections 101, 102 and 103. Section 101 defines "compilation" as: "A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship". Section 102(b) provides: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Section 103 limits the protection of a compilation to the author's original contributions and not the facts or information conveyed. Databases are collections of facts. Facts themselves are not granted copyright protection, but if they are compiled in an original manner, th...
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Medical Treatment by Boarding School Infirmiry
2007-06-10 06:10:00
Facts: Highschool boy gets injured in a basketball game at his boarding school. He is treated by the school infirmary in consultation with a physician. The physician diagnoses muscle strain, and orders pain medical and physical therapy. After some time, the boy returns home to a foreign country and is treated by a physician who diagnoses via x-rays and MRI that his back bone was misaligned and he had torn cartilage in his lower vertebrae; and that even with surgery, he could have permanent, life-long nerve damage and debilitating injury. Surgery is performed with the question pending on the life-long damage. Issue: What should the boy do? He wants to return to school. His parents are in a foreign country and they do not speak English. Should he consider a medical malpractice complaint?
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Homeowner Associations - Thankful not to have to answer to one.
2007-06-08 16:43:00
Homeowner associations are governed by Michigan Public Act 162 of 1982 The Nonprofit Corporation Act. Long story short, if its in the bylaws and it is not an illegal provision of the bylaws, the homeowner association (HOA) can do it. HOAs are advised by lawyers to strictly enforce the provisions of the bylaws because if they do not, order will turn to chaos. Therefore, if you are in violation of a gardening rule for example, you can be fined and if you don't pay your fine, a lien can be filed, and then later, a notice of foreclosure if you don't pay. Furthermore, the HOA can enforce the provisions
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About Renee C. Walsh
2007-06-06 19:54:00
Renee C. Walsh is a Michigan attorney who has been practicing law for six years, over three in medical malpractice defense, and over two in the general practice of law. She is presently focusing on two websites, http://www.walshlawpllc.com and http://www.lawrefs.com, both of which aim to provide helpful information and assistance to those in need. Renee's aims are virtuous as she is one of those rare non-jerk, non-arrogant attorneys, who has since elementary school days, been helping those in need. If you have legal questions email Renee at lawref@lawrefs.com and she will provide the response in her blog. ©2007www.lawrefs.com
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Death Penalty - Mentally Retarded
2007-06-05 20:36:00
The death penalty issue is almost too vast to narrow to a single sub-issue, but in this forum, it seems appropriate, and thus, the question of whether the death penalty should be used against the insane and mentally retarded. In Ford v. Wainwright, 477 US 399 (1986), the Unites States Supreme Court considered the death penalty as to an insane person. It found that consideration must be given to "objective evidence of contemporary values", as well as "the kinds of punishments that were considered cruel and unusual at the time that the Bill of Rights was adopted in 1789". The Court recognized that
More About: Death , Death penalty , Retarded , Penalty , Ally

Dealing with Prosecutors in the 30TH Circuit Hallway
2007-06-05 06:13:00
I was so surprised years ago when I started a private practice and learned quickly the way the prosecutor and defense attorney communicate about cases right out in the open in the hallway where everyone can listen and hear the private information about defendants and their families. I went to a pretrial hearing in defense of a 10-year-old black boy who was charged with a felony (breaking and entering or something along those lines). I could still count the number of cases I had at that time. The boy was from Lansing, Michigan and had no prior criminal history. (You're thinking of course, he was only ten, right?) He had been in the wrong place at the wrong time - with his older brother and his friends. The boys were invited over to a girl's house when her parents were out. She had other girlfriends over and the group was doing what 13 and 14-year-old kids do. My client was seen in the driveway looking out down the street. He was checking to see if the parents were coming...
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To Spank or Not To Spank - Michigan Spanking
2007-06-04 06:48:00
The question: Is spanking child abuse? The answer: It depends on your state. I live in Mich igan and here, Michigan Compiled Law ( MCL ) 750.136b of the Michigan Penal Code defines child abuse. In MCL 750.136b(7) specifically exempts from criminal punishment a parent or guardian (or someone authorized by them) who takes steps to reasonably discipline a child, including the use of reasonable force. In other words, if you spank with reasonable force, you are in the clear. The debate is clearly a personal one. As to myself, I have two children, ages five and two and never expect to and never would spank them. I prefer a firm voice and demeanor along with explanation over corporal punishment. This serves the higher purpose of maintaining my children's autonomy and dignity. Furthermore, it works! My children are happy, respectful, and well-disciplined both at home and in public. I have family and friends who spank their children and the children do not seem to be scarred. Yet, I wonde...
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Hospital Physician Relationship in Medical Malpractice Defense
2007-06-04 05:30:00
The hospital physician dynamic is something that an individual will never learn unless he experiences it first hand. Most of the time, if a patient is injured while at a hospital and begins a lawsuit for medical malpractice, he will sue not only the physician but also the hospital and any other practitioner who was involved in his negligent care and treatment. It is rare that he will sue only the physician because the hospital has the deep pockets. Most physicians are not employees of the hospital, but rather merely have privileges to treat their patients at the hospital. Most physicians are employees of their own corporation including a group of physicians practicing together. A huge factor in the defense will be the amount of insurance available. If the physician has $500,000 worth of insurance coverage and the case can be settled within those limits, the hospital will work towards a stipulation to dismiss the case against them, especially if they were only the site of the...
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How to Prepare for a Deposition
2007-06-03 06:08:00
Prepare for a deposition by knowing the facts and arguments of your case, as much as you can about the witness, the court rules relevant to depositions and evidence, and if the witness is a proponent of your position, prepare him well. Whether the witness is a fact witness or an expert witness will determine the level of preparation required. If the witness is an expert witness, not only is knowing the facts required, but also knowing the subject matter of expertise. One of the first matters to address is the subpoena and its form and requirements. If there is an objection to the form or requirements of the subpoena, put that on the record at the time the deposition begins. If the requirements are valid, do what is necessary to procure the records or other items subpoenaed along with the witness. This is something that often times must be taken care of well in advance so that the client or witness can assist you in obtaining the requested information. For example, if the subpoenaed...
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How to Choose an Expert Witness
2007-06-02 07:24:00
Hiring an expert witness is a tedious process but well worth the chagrin when it comes to a deposition that breaks the case, or credible trial testimony that impresses the jury. There are some preliminary criteria that need to be satisfied. The expert must of course be qualified to testify about the subject matter at issue. For example, in the medical malpractice field, an expert testifying about the standard of care must specialize in the same field as the defendant and be board certified in the relevant field if the defendant is. The expert must also have devoted a majority of professional time in the year preceding the time complained of to practicing or teaching an accredited program in the same specialty as the defendant. MCL 600.2169(1)(a-b). In order to determine whether the expert is a qualified expert, a curriculum vite is necessary. Furthermore, rather than taking the expert's word for it, their qualifications can be confirmed and this probably a good idea. For exampl...
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Guardian / Conservator - Will you need one?
2007-06-01 18:45:00
Guardianship / conservatorship lies in the realm of probate law, an area of law that each one of us who intends to grow old needs to look at because we could be in a situation where a guardian and conservator is appointed and we are placed in a nursing home with no hope of discharge. This happened to someone close to me and I took over as guardian and conservator to get her out of the home, but I met with roadblock after roadblock and ultimately did not prevail. The person I am speaking of is a 90-year-old alcoholic. Her daughter, who resided across the state, wrote a letter to the probate judge where the 90-year-old lived and told the judge of her alcoholism. The letter was not notarized or official in any form. Based on that letter along with a non-specific petition completed by a local attorney and requesting a guardian / conservator for her protection, the judge ordered temporary guardianship / conservatorship. After 90 days, the temporary guardianship / conservatorship ...
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