Matthew Udall

Mr. F,
Before you pointed out to Rita that these courses don't authorize her to represent clients in immigration court. I don't want to post something if I'm remembering it incorrectly. Am I remembering this wrong?

Apologies to both you and Rita if I am.

bionomique

Interesting discourse, so far.

While I agree with much that has been discussed, the above example is hardly a good one. in my opinion. A railroad that fails to install safety devices is not in compliance with various agencies, (Federal, State and perhaps others, I'd presume) and, as such, by its own negligence, either willful or otherwise, assumes the liability. The parent would have every right for a cause of action against the operator. In the event that all safety devices were in place and the child incurred injury then I'd guess it wouldn't be such an easy task. (Safety appliances to include appropriate notification of dangers, by the way).

However, a newsgroup on the other hand, is not governed by/required to comply with safety measures until regulations so state.

Folinskyinla

Hi:

I took Torts in 1972-73 school year -- so my knowledge is quite rusty. [At various law school functions, I've been asked by law students and baby lawyers if the law has really changed that much in the past 30 years and I reply -- "Is contributory negligence still a complete defense?" and the answer is "Oh." In California, the doctrine was abolished by Li v Yellow Cab shortly after I graduated].

But there is a doctrine regarding the forseeable plaintiff -- to whom is a duty of due care owed. And curiously enough, the BIG case with which law students are tortured with is a railroad case: Palzgraf v. Long Island Railway. The fact situation actually makes for good party conversation over a couple glasses of wine.

Practical matters aside, IMHO, the "PLer's" authorized or "U", are opening themselves up to potential liablity.

I guess this a long way of saying, I beg to disagree.

Folinskyinla

Hi:

I took the California Bar in 1975 which at that time was a day and half of essay exams and one day of the "Multi-State" exam which was 200 multiple choice. I actually remember the MBE being the real bear. It really was "multiple guess" in large part -- 200 times you were given a choice of a) perhaps b) maybe c) no way and d) probably not. The trick was to identify "no way" and "probably not", and then flip a coin on the other two. The essays were a piece of cake. When I took the Washington Bar Exam in 1991, there was no MBE, it was two days of essays -- even though I had not taken negotiable paper in law school and had never used the knowledge in my practice, I found that 15 years of law practice had made studying somewhat easier [I can't tell you how many times I went in that experience thinking "Oh! THAT's what Professor X meant in 1974" ].

Out of curiosity, what was required to SIT for the examination for your profession?

Folinskyinla

Hi:

I do NOT take your posting as attorney-bashing. I've been practicing for 30 years and I'm still learning. Before I started participating in the old board on "Alvena's" defunct K-1 website and then this NG, I was only vaguely aware of non-resident DCF. [Back in 1994, I wrote a chapter in AILA's Visa Processing Guide on immigration practice in Seoul. We were given a laundry list of questions to ask and DCF was one of them along with TCN processing]. I've actually learned about it here in reading other people's experiences.

Also, when 245(i) came into being, the amound of consular processing for IV's dropped dramatically -- which caused a decrease in the shared body of knowledge among the bar.

Folinskyinla

Hi:

Sometimes, I feel that my memory is slipping in my old age. But --

I'm on a panel for a CLE course at the end of the month with Hon. Shirley Hufstedler. I'm appearing with her and CCJ Schroeder. I spoke with Judge Shirley today and I mentioned that I felt like a "utility outfielder" appearing with two "heavy hitters." She graciously opined that my recent experience was much more extensive than hers. It is a commonly held opinion that if Jimmy Carter had had the opportunity to make an appointment to the Supremes, Judge Shirley would have the first female Justice rather than her law school classmate, Sandra. But Judge Shirely said "You are still a young man." Like I say, a gracious lady indeed.

bionomique

Hmm. I just googled that and I guess I'd be caught saying "Oh" too! I was under the impression that negligence is not actionable unless it involves a violation of right. A railroad had all of the mandated safety appliances in place (had been therefore vigilant) and there was no hazard apparent then no tortious act. In the Palsgraf case you refer to, train employees helped a passenger on the train who then dropped a parcel of fireworks. They, the railroad, didn't know the passenger had explosives, but were still considered liable due to this duty to care?

scrubbedexpat099

US and UK law define contributory negligence very differently for anybody getting confused.

Folinskyinla

Hi:

There is a lot of interrelation between "US" and UK law. I put "US" in quotes because tort law is from the individual states and 49 of the 50 are Common Law jurisdictions. I remember the names "Wagon Mound" and "Polemis" from the forseeabiltiy discussion. And those were British cases -- [or at least Empire/Commonwealth]. US legal training discusses Polemis and Wagon Mound.

J Moreno

In article <[email protected] .com>,
MDUdall <[email protected]> wrote:

    > In article <[email protected] .com>,
    > <[email protected]> wrote:

    > >I often find that you over reach in your attempt to find an analogy
    > >for UPL, i.e. doctors, pilots, etc. The AVUMB forum is not on the
    > >same par as someone who opens an office and hangs a phony shingle on
    > >the wall proclaiming themselves a doctor and then dispenses medicine
    > >and in some cases performs surgery.
    >
    > Why are you comparing apples to oranges? You talk about those who "hang
    > out a phony shingle". Most net-tarios don't do that, but they render
    > legal advice just the same.

Is it legal advice, or just advice that happens to be about something
for which there is a law?

Is "stop speeding, you might get a ticket" legal advice? How about
"I've never seen a cop on this stretch of the road"?

I imagine the reason she talks about "hang out a phony shingle" as well
as taking money is because both imply that the person is claiming
expertise that they don't have "My advice is so good you have to pay me
to get it".

The price of most professional advice/service isn't based upon the time
spent on the problem, but on the time spent acquiring the expertise to
deal with the problem.

There's a story about a guy called out to do disk repair back in the
days when your disk drive was the size of your car: they call him out
because it's making some noises and sticking (i.e. stops working), he
listens to it for a while, pulls out a drill and drills 3 holes in,
writes out an invoice for 10,000 and starts to walk away. The operator
calls him back and says that accounts payable won't pay the invoice,
all invoices have to be itemized. He says OK, takes the invoice back
and writes on it:
1) Driving time for off site service, $15
2) Drilling holes in disk drive, $10
3) Knowing where to drill holes in disk drive, $9,975

Here the advice is free, and it's definitely worth every penny that you
pay for it.

    > I would think a more apt comparison would be someone (not licensed
    > and who lets others know that) who systematically and regularly over
    > the span of years takes it upon themselves the task of diagnosing
    > people's medical problems and recommending courses of treatment.
    > Surely you can see how dangerous that could be to the public,
    > especially when the natural tendency in that situation would be for
    > some to rely upon the medical advice (based on a diagnoses) as a
    > substitute for going to a trained doctor.

I'm not rete, but *I* don't see that as a danger to the public -- this
person is upfront about their expertise, if the public takes their
advice then that's on the heads of the public.

IMO the advice and questions in this group are more along the lines of
"what would you do in my shoes" and "I'd do X if I was in your shoes".

PS: this means that "lie like crazy" should be a perfectly acceptable
response, it may not be legal, but it's surely what a lot of people
would do/have done.

--
J. Moreno

scrubbedexpat099

I just mentioned it because I had spent quite a few years assuming they were the same, used in the same context, same spelling etc etc.

Prior to coming to the US I had also not fully appreciated the impact of State law. Every other Country I had dealings with has basically the equivalent of just a Federal system.

Presumably Louisiana is the odd one out, The French Connection?.

PS Using the term British law could piss of the Scots, who have their own nuances.

Folinskyinla

Hi:

Not a violation of "right" but a violation of "duty." LIRR [via its employees] was negligent in its actions. However, did the duty of due care extend to Mrs. Palsgraf? BTW, if memory serves me correct, the majority "Cardozo" approach said "no" and the dissenting "Andrews" approach said "yes." Although the law likes to parse things in a very analytical fashion. that can be difficult at times. I rember Palsgraf as being somewhat fuzzy as being whether it was a "proximate cause" case or a "duty" case.

I also remember A.P. Herbert's comment in "The Uncommon Law" on the "reasonable man" standard -- a truly boring person who doesn't really exist. Although, Mr. Herbert noted that there was no mention in tort law of the "reasonable woman."

Folinskyinla

Point well taken. Mea culpa.

It is the "Common Law of England."

BTW, California is a Common Law jurisdiction, but our law on marital property is "community property", a Civil Law holdover from the Mexican era -- but its now had 150 years of legislation and Common Law interpretation to chew on it.

scrubbedexpat099

Polemis I had not heard of, just surprised that Wagon Mound could have been brought in to US Law. Obviously there is a connection, just how escapes me.

hcj1440

Mr Udall -- I wish my attorney had done that. I hope more attorneys are like you than they were like the attorney I had. Although, I also want to say that, despite my ranting in the last two posts, I *am* grateful for the bang up job our attorney did. He had knowledge about the local office that I could never have gotten from a forum. He gave me peace of mind that my filing was done correctly (at that point in time I would have felt really uncomfortable doing it ourselves; I feel more comfortable about it now). We got AP in time to go on our trip, and he knew that we would because he knew how quickly his other clients were getting theirs.

Mr F -- I appreciate your insight as well. It makes me feel better that a few years ago (or even now), many attorneys may not have known about non-resident DCF... because I would like to think that our attorney did not present it as an option for the simple reason that he didn't know about it. It did not occur to me that he might have just not known about it. (That betrays how I subconsciously think of attorneys as immigration gods ;o)

I didn't know enough at the time to ask the right questions so I take responsibility for that part. The older I get, the more I realize that I need to learn enough to at least ask the right questions. )