What Lawyers And Fishermen Have In Common

Dare I draw a parallel between two seemingly dissimilar pursuits as lawyering and fishing? One is an avocation practiced, for the most part, indoors. The other a recreation practiced, for the most part, out of doors. When I asked Google to compare lawyers and fishermen, the search returned only an unflattering article comparing lawyers to a certain species of fish. Wade deep into both worlds, however, and one can appreciate the traits that make a good fisherman also make a good lawyer and vice versa.

The Art of Presentation

A good fisherman knows he cannot throw anything into the water and expect a fish to bite. A fisherman practices the art of persuasion as much as any courtroom lawyer. His objective is to persuade a fish that his offering looks, smells and acts just like its natural quarry that it gulps down without hesitation. If the bait or lure presented looks or smells bad or acts unnatural, the fish will swim away. It is much the same in the courtroom. If a lawyer’s evidence looks or smells bad or seems unnatural, he is unlikely to persuade a jury to swallow his line.

Thought and preparation must precede the presentation. Careful selection of a dry fly to match the hatch along a stream is as important to the trout angler’s success as a lawyer’s selection of his words before oral argument. A novice angler often allows the line to smack the water alerting every fish present to his posturing. But the skilled placement of flies or words in an alluring manner is a sign of craftsmanship.

Perhaps there is some similarity about making a cast and making a sentence – both must be accurate, graceful, rhythmical and neat.

-John Moore

The Art of Storytelling

Good fishermen tell good stories. They draw from the richness of their experience, the humor of their gaffes, the wisdom of their years, and the beauty which inspires them. And, of course, they embellish. A fisherman’s story is a tapestry appreciated by any age. In law, storytelling is often left to trial lawyers, but find a lawyer who fishes and you will find a good storyteller.

The Quest for Your Best

There hasn’t been a fisherman in history who has won the battle with every fish he hooked, nor a lawyer that hasn’t felt the disappointment of one that got away. Success is temporary. Failure is motivation.   And learning is continual.

Optimism is fuel for the fisherman as it is for the lawyer. Each occasion is another opportunity to apply one’s skills against a worthy opponent. And as he ages, I suspect both the fisherman and the lawyer find more satisfaction in passing along his craftsmanship to another so that someone else’s life may be equally enriched.

cruise injury attorney

Cruise Injuries Create Complicated Legal Issues

Taking a Caribbean cruise this year? Traveling to an all-inclusive resort for a well-deserved vacation? Be safe. Bringing a lawsuit against a cruise line or a resort for injuries or damages occurring on board or at a foreign location is not easy.

When you purchase a cruise line ticket or book your hotel, you are probably thinking about all the fun you will have and not what can go wrong. In the fine print of your tickets and reservations, however, cruise lines and resorts insert language that limits your opportunity to sue them. The language is a contract that you agree to when you purchase the ticket and courts generally enforce it.

First, cruise lines and resorts almost always reduce the time you have to bring a lawsuit to one year instead of the two years most states allow for filing of injury lawsuits. If a passenger or guest fails to act promptly, he or she may lose the ability to sue. Second, cruise lines and resorts usually insert a “forum selection clause.” This clause requires passengers to sue the cruise line or resort in the court of its own choosing, generally a location where the law is more favorable.

In Seung v. Regent Seven Seas Cruises, Inc., the injured passenger, an elderly resident of California, filed suit against the cruise line in Florida. However, the cruise line’s forum selection clause required any legal action against the company occurring on a cruise that did not include a U.S. port to be brought in Paris, France. Unfortunately, the woman’s cruise took place in the Polynesian Islands. The Florida federal court dismissed the case. It ruled that the age and physical condition of the passenger was not a valid reason to strike the forum selection clause as unduly harsh. The court ruled the woman did not have to take the cruise and may have benefitted from a lower fare by virtue of less legal exposure to the company in French courts.

Third, cruise lines and resorts may insert a “choice of law” clause in the ticket or reservation language. While the “forum selection clause” controls where a lawsuit may be filed, the “choice of law clause” controls which country’s law may apply. The choice of law clause may have a huge impact on the amount of money an injured passenger can recover. For example, if a Liberian flagged cruise ship operating out of a U.S. port imposes Liberian law instead of U.S. admiralty law, a passenger’s damages may be limited to $70,000.00. And even U.S. admiralty law is not as favorable to a passenger’s recovery as traditional state tort law is.

In a cruise ship fiasco, passengers may recover for any physical injuries causally connected to accident. However, those who simply suffered from frayed nerves and exasperation will have a more difficult time. While they no doubt may suffer from emotional distress and disappointment of a dream vacation turned nightmare, admiralty law requires emotional distress to manifest itself in physical symptoms (e.g. vomiting, sleeplessness) before damages will be allowed.

If you have been injured on vacation, call Scott Fegley at the Fegley Law Firm, (215) 493-8287 or by email at scott@fegleylaw.com. Mr. Fegley has 30 years of accident litigation experience. We Give You Peace of Mind.

Understand Contracts Because Words Matter

Contracts, or the lack of them, can be a major legal issue for business owners. With some foresight and preparation, many contract problems can be prevented. In this legal area, an ounce of prevention may be worth thousands of dollars in legal fees.

The benefit to a well written contract is clarity. Courts will enforce a contract based on its meaning in plain English. Courts will seldom rewrite a contract because a party finds its application unexpected or unfavorable. A well written contract has a much greater chance of being enforced as the parties intended. Only when a court finds the language ambiguous or capable of differing interpretations does the court look to other evidence. In those cases, litigation gets more expensive and often winds up before a jury.

A verbal contract can be enforced by a court with some exceptions. The difficulty in enforcing a verbal contract is having to come up with the proof of its existence in the absence of ink on paper. Because the parties haven’t written down their expectations, their rights and obligations, it may be up to a judge or jury to decide if a binding contract was formed and, if so, who broke a promise.

Parties involved in business transactions should have contracts for their agreements with vendors and customers. A basic contract includes a description of the work, product, or service, a price, and a time for performance. In a dispute, courts may fill in non-essential terms if it finds a basic contract was formed. Other common terms in a contract include choice of law or jurisdiction, waiver and modification, and limited warranties.

Contracts with employees, especially those critical to your operation or in management, are worth considering. Employers often use non-competition and confidentiality agreements to prevent employees from going to competitors or starting their own competing businesses with the employer’s know-how. These “restrictive covenants” are simply a form of contract. After all, a contract can be defined simply as an agreement between two parties.

Never sign a contract without reading or understanding it. It is always good advice to seek legal counsel before signing any legal document. Even if the words seem clear to you, an experienced attorney can spot potential problems in the contract language you may not. Don’t give into pressure to sign. It may be a sign that the party who is pressuring you is not someone you want as a business partner.

Uncertainty and risk are not good for any business. Written contracts can prevent or at least help you manage uncertainty and risk when it comes to dealings with a fellow owner, another company or an employee. Call Scott Fegley at the Fegley Law Firm to you create well written contracts or review a contract presented to you. Call our Yardley, PA office at (215) 493-8287 or contact us by email at scott@fegleylaw.com. We Give You Peace Of Mind.

Drug Testing Programs Require Careful Planning

Pennsylvania unemployment compensation law considers an employee’s refusal to submit to a drug test or a failed test grounds for denial of benefits without the employer having the additional burden of proving “willful misconduct.” However, to avail itself of the relaxed standard, the employer must adopt a drug testing policy that is not in violation of law or a collective bargaining agreement. The employer must communicate the policy to its employees and comply with the policy.

Simply putting a paragraph in a handbook that advises employees they may be asked to submit to a drug test is not enough. Careful consideration must be given to when a drug test may be appropriate. Upon hire? After an accident? Upon reasonable suspicion that a person may be under the influence of a controlled substance? Should the employer implement random testing for all employees in safety sensitive positions? These are all important considerations that should be resolved before a policy is drafted. Drug testing policies should be tailored to the needs of the employer. An insurance agency with mostly clerical staff, for example, will not require as onerous a policy as a trucking company.

Once an employer decides when to test, it must also consider the manner and method for testing. Many employers contract with local clinics to conduct drug testing and often forget to inform the employees in the policy what to expect when they get there. There are a variety of tests and collection methods. The U.S. Department of Health and Human Services and the U.S. Department of Transportation both have manuals on drug testing that provide useful information to consider when drafting a policy and can be found on the agency websites. An employer need not adopt a policy that meets stringent HHS or DOT guidelines. However, a policy should inform employees under what circumstances they may be tested, what will happen when they are tested, and the consequences of a refusal to test or a failed test. Consultation with our office and medical professionals experienced in drug testing and sample collection prior to implementation of a drug testing program will enable an employee drug testing program to work effectively and withstand legal challenges.

Need assistance in an employment matter? Call our Yardley, PA office at (215) 493-8287 or contact us by email at scott@fegleylaw.com. We Give You Peace Of Mind.

 

outdoor injury attorney

Who Is Liable for Outdoor Injuries?

Summer is upon us! Time for hiking, swimming, climbing and enjoying the great outdoors! However, these seasonal activities, like any other outdoor activities, are not without risk. Serious injury can occur from diving in shallow water, hiking off marked trails, and failing to exercise caution outdoors.

In Pennsylvania, we have a law called the Recreational Use of Land and Water Act. The RULWA provides landowners immunity from lawsuits if they allow the general public access to their land for recreational purposes without a fee. The law was intended to encourage landowners not to post their lands with “No Trespassing” signs and enable fishermen, hunters, hikers and other outdoor enthusiasts greater access to our open spaces. In general, landowners who allow access are given the same protection from liability as if they had posted “No Trespassing” signs. The landowner cannot be liable unless he actually knew of a hazard on his property and deliberately failed to take steps to correct it or warn about it.

Let’s look at some examples. A sledder walking across land to a snowy slope falls in a deep, uncovered well on the property. If the landowner (a) knew people walked on his land for recreational purposes, (b) knew about the well, and (c) failed to take steps to cover it or prevent someone from falling into it, the landowner may still be sued. The RULWA offers no protection in that circumstance. However, if the sledder, while sledding down the hill, loses control or strikes a tree and suffers a head injury, the landowner will not be liable.

Landowners may also rely on a doctrine called “assumption of the risk.” Those of us who enjoy outdoor activities are assumed to know the risks inherent in the activity and assume the risk of being injured while participating.   However, the doctrine generally affords protection to landowners only for known or expected risks such as collisions with natural objects.

Before engaging in outdoor activity, it is always important to be familiar with the area and to observe signs and marked trails. Enjoying the sport safely is far more important and worthwhile than trying to figure out who’s at fault after an injury occurs.

If you have any questions regarding possible exposure as a landowner or if you sustained an injury due to someone else’ fault, call Scott Fegley at the Fegley Law Firm, in Yardley, PA at (215) 493-8287 or email us as scott@fegleylaw.com.