Posts

Pursuing your rights to recover your loss after an accident

The aftermath of an accident might be harsh as you may not be eligible to sustain your life securely and continue your profession. Your physical condition and economic safety are likely to decrease correspondingly as lack of earning capacity might put the victim at risk of further difficulties. Others’ wrongful actions or lack of commitment to take reasonable care conduces to accidents that may have negative effects on the victim’s life. The laws were put into force with the aim of decreasing the human factor in accidents and helping to relieve the post-accident difficulties of victims by awarding monetary damages. As seen in the laws, whilst interacting with others or occupying the same roads, individuals are obliged to hesitate to act in a way that may be harmful to others.

The legal duty to act responsibly is the duty of care

Your actions might harm others. Even if your intention is not to harm, certain actions that have the potential to cause an accident is determined as wrongful actions. These safety violations can be committed at work, in traffic, whilst treating a patient and undergoing surgery, in an event that you host or in a business place that serves consumption products. The form of negligence varies as your actions or lack of taking an action against the potential risk factors might conduce to the same conclusions.

In a medical centre, the whole treatment process may be damaged by the negligence of the medical attendant at duty. The first step of medical care is usually the diagnosis stage. During the diagnosis, the medical attendant’s error or certain defective products may cause the condition to be evaluated falsely. If x-ray machines aren’t operating correctly or the professional using these devices aren’t capable of evaluating the results correctly, the treatment process is likely to diverge. The post-diagnosis process will be entirely dependent on the patient’s evaluated medical condition that has incorrectly evaluated.

The use of machinery and robotic surgeries are getting more common and beneficial in medical treatments. These are the advantages of technology that can be beneficial if utilised correctly. Other than the surgeons’ errors, the machines and devices involved in the surgery have the potential to harm the patient. These devices may be operating incorrectly due to production defects or as in the diagnosis stage, the cause of the harm might be the human factor. Everything that is electric-powered or using a clockwork mechanism requires regular maintenance. Lack of maintenance, operating the devices incorrectly or the use of recalled, prohibited or incorrect devices may be the cause of harm.

Fundamentals of the duty of care

Being the cause of an accident in the workplace might put you in legal troubles as the employer’s duty of care is to provide total safety. Generally, work accidents are preventable. Even if not, the impact can be reduced noteworthily. Natural causes are usually blamed after work accidents. In fact, even the toughest work conditions can be improved by taking sufficient care. As the employer, the source of risk might be you. Preventive measures should be taken to keep the workers safe. Generally, lack of sufficient protective equipment, inadequate work conditions due to high risks, incorrectly appointing workers to operate machinery and performing these tasks in a timely are the main causes of work accidents.

These are preventable risks that a reasonable employer would care about. The personal injury laws demand the employers act responsibly by designing the workplace suitable for the safety standards issued by the authorities. Failing to do so might have legal consequences as the victim’s loss might be hard to resist.

Article by:

Arda Seyman

Withstand Lawyers Standing with you

Suite 107, Level 1, 18-20 Ross St, Parramatta NSW 2150 

www.withstandlawyers.com.au | gurcans@withstandlawyers.com.au

 

Mexican Labor Law Amendment Abolishes Outsourcing of Personnel

On April 23, 2021, an amendment to the Mexican Labor Law was published in the Official Gazette of the Federation. Below are the key points about the amendment and how they will affect employers that outsource or subcontract work.

GENERAL PROVISIONS

According to the amendment, employers are no longer permitted to subcontract or outsource personnel. The law covers any individual or legal entity providing employees to be supervised and managed by a third-party client and that determines the services and work to be rendered. The law includes carve outs and exceptions under certain circumstances.

  • Specialized Services
    • The amendment permits the subcontracting of specialized services that are not part of the core business in terms of the company’s corporate purpose and activity registered before the Tax Administration Service (or Servicio de Administración Tributaria (SAT). Services will be considered specialized provided that they are not part of the core business of the company that receives them—the so-called “operating entity.”)
  • Companies in the Same Corporate Group
    • The amendment allows companies within the same corporate group, i.e., the “former service entity,” to render services or activities.
  • Employment Agencies
    • According to the amendment, employment agencies or intermediaries, which were previously referred to as “outsourcing companies”) may participate only in recruitment, selection, and training of candidates. The amendment states that the company receiving the services must be the one that conducts hiring.
  • Profit-Sharing Cap
    • Because some companies have attempted to avoid tax liabilities, they have adopted the practice of creating distinct companies that employ their workers. These companies are currently required to distribute 10 percent of the company’s taxable profits (PTU) to employees. The new amendment establishes a cap on these profit-sharing obligations. As a result, a maximum limit of three months’ salary or the average of the amount received in the last three years—whichever is more favorable to the employee—is now in place.

KEY OBLIGATIONS

  • Companies Providing Subcontracting Services
    • Companies that provide subcontracting services are required under the amendment to take the following actions:
  1. Obtain the registration certificate before the Ministry of Labor and Social Welfare or Secretaría del Trabajo y Previsión Social, (STPS). Among other obligations, the company must evidence that its tax and social security obligations are up to date. Companies are required to renew the certificate of registration every three years.
  2. Execute a contract for the provision of the specialized services.
  3. Submit a quarterly report to Mexico’s Social Security agency (Instituto Mexicano del Seguro Social or IMSS ) and Mexico’s housing agency, Instituto del Fondo Nacional de la Vivienda para los Trabajadores or INFONAVIT on the specialized services contracts executed.
  4. Provide the contractor with a copy of the registration certificate before the STPS, tax receipts for payments of salaries, payment of withholding taxes and employer’s contributions and the value-added tax return, and a copy of the corresponding payment voucher.
  • Companies Contracting Specialized Services
    • Companies that provide specialized services are required under the amendment to take the following actions:
  1. Verify that specialized services are not part of company’s core business.
  2. Verify that the company providing the subcontracting services is registered before the STPS.
  3. Collect copies of:
    1. registration certificates before STPS;
    2. tax receipts for payments of salaries;
    3. receipts of payments of withholding taxes and payments of employer contributions; and
    4. value added tax returns and their corresponding payments.

CONSEQUENCES OF NONCOMPLIANCE

  • Labor
    • In the case of noncompliance, companies may be subject to fines of up to USD$222,000 and even incarceration of a company’s representatives.
  • Tax
    • Companies will not be able to credit or deduct taxes for subcontracting services, unless they fulfill the above requirements.
  • Criminal
    • Companies that do not comply with subcontracting obligations and attempt to deduct or credit taxes for the services of subcontracted personnel, or use simulation schemes for the provision of specialized services, will be subject to criminal liability for fraud.
    • Both the company that subcontracts and the one that employs subcontractors may be held jointly and severally liable for all labor, social security, and tax obligations, which they would have otherwise been obligated to pay.

Use of Trademarks in the U.S.

As North America brings its intellectual property laws in line with the United States-Mexico-Canada Agreement (USMCA), the way trademarks are handled in Mexico and Canada has recently changed. While Mexico now requires a business to use its mark to obtain a Mexican trademark registration, Canada no longer requires the use of a mark in order to obtain a Canadian trademark registration.

A business may spend significant resources attempting to use a trademark in the U.S., but ultimately fail to satisfy legal and technical requirements. Not only are such attempts wasteful, but they may also pose an obstacle to pursuing an otherwise legitimate trademark registration. To successfully register a trademark in the U.S., a business is required to use the trademark on or in connection with its products and/or services, but the law has different requirements for each.

U.S. TRADEMARKS FOR PRODUCTS

For a trademark associated with products, advertising alone, such as use in a brochure or on a website, is not normally enough. The mark must be placed in any manner on the products or on the containers of the products, or on tags or labels affixed to the products. If the nature of the products makes such placement impracticable, then it may be acceptable for the mark to be used on displays associated with the sales of the products. Additionally, the products must be sold or transported in interstate commerce.

The simplest way to satisfy this requirement is to put the trademark directly on the products, such as by incorporating the mark into the mold of molded products, stamping or printing the mark onto the products, or applying a tag or label to the products carrying the mark. The mark could also be applied to the packaging or container of the products.

For an example of displays associated with the sales of a product, the mark can appear with the product in a catalog or on a website, but there are specific requirements for those uses. If used in a catalog, the mark must be accompanied by a description or picture of the product, and the same catalog page generally must include ordering information such as a phone number or a web address. If used on a website, the mark must still be accompanied by a description or picture of the product, and the webpage must include the direct ability to order the product, such as a “Buy Now” or “Add to Cart” button on the webpage.

U.S. TRADEMARKS FOR SERVICES

For a trademark associated with services, the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in interstate commerce. That is, the services must be rendered in more than one state, or in some other way in interstate commerce, or in the U.S. and a foreign country, and the company rendering the services is engaged in commerce in connection with the services.

ENSURING CORRECT U.S. TRADEMARK USE: THE ABCD TEST

To ensure that your trademarks, aside from being placed on the products or used in connection with the sale of services, are being used correctly, use this ABCD test:

  1. Adjective: Use the trademark in the position of an adjective describing the product, followed by the common descriptive noun for the product. For example, use “KLEENEX tissue” not simply “a KLEENEX,” or “XEROX photocopier” rather than simply “the XEROX.”
  2. Brand identification: Properly identify the status of the trademark as a brand with the appropriate trademark symbol e.g., ® for a registered mark and ™ for a mark not yet registered.
  3. Consistency: Be strictly consistent in displaying the mark. If the trademark is punctuated, capitalized or colored in a certain way, it is critical to maintain the same formatting. Any change of any of those properties could be considered a change to the mark, that is, adopting a different mark. Such consistency will also help ensure that others recognize that this is a trademark and not just another word. While it makes sense for a company to adopt a different mark from time-to-time, such changes should only be done intentionally, after careful thought and transition planning, rather than by accident or in a casual attempt at creativity.
  4. Distinctive: Use the mark in a way that is distinctive, that sets it off from surrounding text, such as in a different typeface, color or capitalization
Article by;

Nicholas A. Kees
Alexander C. Lemke
Godfrey & Kahn S.C.

What are the best practice areas for solo attorneys?

So, you’ve decided to take your practice solo, congratulations! You’re taking the steps to tackle your legal career goals on your terms, and that’s something to be excited about. Before you get too ahead of yourself, have you considered what are the best practice areas for solo attorneys?

Whether you’re moving away from a law firm or starting out solo, there are several business decisions you must consider if you want to be successful. If you haven’t done so already, you’ll want to get a good grasp on the practice areas you will focus on. This will determine your services, marketing, and entire business model.

Motivation and values

A good starting point when deciding what areas your solo practice will specialize in is finding your ‘why.’ In fact, all attorneys (solo or firm-based) should understand their ‘why’ for going into the legal industry.

This is your main motivation for wanting to practice solo law and will be your driver towards a fulfilling career. Some attorneys look to practice solo because they have more control over their billable hours and greater earning potential. Other attorneys are passionate about a specific practice area and feel they can make a bigger impact on their own. Neither option is better than the other, but it’s important to understand your motivations and values behind your practice. You’ll find more fulfillment and come across more genuine.

Practice areas

Bankruptcy law

This area of law is perfect for solo attorneys who are good with numbers and financial literacy. Many of your clients will owe money to another entity and have declared bankruptcy. For this reason, you’ll need to be comfortable evaluating financial documents to best represent your client. Additionally, if you don’t love going to court, bankruptcy law is for you. Most cases are settled outside of the courtroom. 

Civil litigation law

Litigation attorneys or trial lawyers are people who are quickly adaptable and enjoy a busy environment. Civil litigation typically involves disputes between parties seeking monetary damages or judgement based on non-criminal accusations. Since civil litigation law is broad, It’s best for solo attorneys to specialize in specific areas, like family law or medical malpractice.

This area of law is best suited for solo attorneys who can handle being pulled in many directions while also maintaining organization. Civil litigation often involves working very closely with clients, being in court, and out-witting your opposing counsel.

Employment law

Employment attorneys spend most of their time assisting the employer-employee relationship. This involves reviewing employment contracts, discrimination suits, termination, lay-offs, settlements and more.

Employment law is a great area of practice for solo attorneys who enjoy advocating for the rights of their clients. To best represent your clients, you’ll need to stay up to date on employment and labor legislation and be ready to have difficult conversations. The employee-employer relationship can be sensitive and guiding a client through legal proceedings while also maintaining a sense of empathy can be difficult to manage.

Family law

Cases within family law are almost always sensitive, especially when child or separation of a household is at stake. Adding in these factors on top of upholding the law can create a stressful work environment for solo attorneys. On the other hand, family law can also be very rewarding when you are able to better your client’s lives.

Similar to employment law, solo attorneys practicing family law must be able maintain a level of empathy while also helping their clients make difficult legal decisions.

Real Estate law

Real estate attorneys assist their clients with legal property matters. This could include assisting a lender with the sale of property, drawing up contracts, titles, and litigation of tenant-landlord relationships.  This area of law is great for solo attorneys who have a knack for attention to detail. Depending on the client, real estate contracts can be long and must include specific language to protect the clients assets surrounding the property.

Solo attorneys who prefer transactional work are a great fit for real estate law. Once a contract is in place, the client will likely only contact you or need your services when there is a breach or conflict that arises.

Choose what’s best for you

At the end of the day, the practice area for solo attorneys comes down to what you want. Figuring out what you’re passionate about or what motivates you is a great first step in finding the best practice area. Next, evaluate your skill set and how you can separate yourself from the pool of solo attorneys.

Article by;

Kamron Sanders
PracticePanther

An Interview with John Delaney

Role: Director
Office location: London/Dublin
Joined the team: July 2019

Why Base? 
Base is recognised within the industry as a growing Expert Witness firm focused on delivery and quality. Base has the reputation of a continually successful niche business with a healthy mix of new and repeat clients. Most importantly, it has a culture of ‘people first’. I believe that finding the right combination of people and skills creates an optimal working environment – this gives Base a great advantage to continue to grow and deliver excellent service.

What were you doing previously? 
I have spent the past 6 years working with HKA (formerly Hill International), the world’s biggest expert witness services and claims consultancy group. Prior to that, having recently moved from Dublin to London, I spent three years with Blake Newport; a commercial cost management, claims and dispute resolution firm. I’ve also worked as a contractor’s QS and PQS in Dublin, an estimator and QS for a carpentry firm in Sydney and, at the beginning of my construction career, as a labourer in Dublin, New York and Sydney.

What do you feel you bring to Base? 
I have extensive experience working in a vast range of roles across a spectrum of projects in both the construction and engineering sectors.

I think I bring real-world experience, coupled with focused educational and professional training. This has allowed me to move into and develop my role as an Expert Witness.

What would you consider to be your area of expertise? 
Quantity Surveying and the assessment and valuation of construction and engineering costs.

What are your career aspirations for the future? 
To continue to develop as an Expert. You are never quite the finished article at any stage of your career but, particularly in the world of experts, every project is slightly different and presents new challenges. I would also like to begin getting appointments as an adjudicator in the near future.

How do you see the industry changing in the future? 
The driving force for change, as with most things in life, is technology and I don’t think that’s any different within construction. However, the industry is far from innovative and is notoriously resistant to change. Processes are still very much rooted in practices that were common 40 years ago. Technology will inevitably lead to an industry that, in many aspects, will be unrecognisable to the one we know today.

[Base] has a culture of ‘people first’. I believe that finding the right combination of people and skills create an optimal working environment…

How do you see Base fitting into those changes? 
I believe that our wide exposure across different sectors places us in a great position to be able to meet these changes. Whilst many in the construction industry can spend 30 years working in one sector, the dispute world exposes you to numerous different projects, contracts and geographical locations. I think this gives Base a unique opportunity to react to changes occurring around the world and to be able to present our analysis and evidence in a coherent and considered fashion.

What is the biggest challenge you’ve faced in your career so far? 
After the economic crash in Ireland, I arrived in London with limited knowledge of the UK market. I was unfamiliar with the details of the NEC and JCT contracts. Familiarising myself with the market and conveying that I was capable, competent and experienced enough to be able to transfer my skills to a different environment was an initial challenge.

What did you learn from that? 
A chartered QS has a huge number of adaptable and transferrable skills; from technical, to economic, procurement, negotiation, contractual and commercial. This means that, whether they are working for a public body, a private developer, a consultancy or a contractor, they are able to deal with a range of issues and work in a number of different environments. There are very few professions that allow you to develop such a diverse spread of experience in such a short space of time. Moving to the UK really opened my eyes to that and to the number of opportunities and directions that can be presented when you focus on developing your core QS skills, and how those skills are applicable across construction and engineering.

What would be your biggest piece of advice to those starting in the industry today? 
Develop your network from day one. Work on it constantly and it will pay dividends down the line, enabling you to reach out and find opportunities that might not be immediately obvious. It can also be great fun, people in the industry are always interesting and, if nothing else, they will understand what a QS does!

‘Stubborn, wrongheaded’ approach to family law will fail

The federal government’s approach to family law will see it advocate again for a “bad law” to be passed by parliament, which it failed to pass in the last term, argues the Law Council president.

Speaking on Monday night at the Newcastle Law Society’s Annual Members’ Dinner, LCA president Arthur Moses SC said that we are “on the eve” of the government reintroducing the “fundamentally flawed merger bill”, which will see the abolition of the specialist Family Court.

“The government’s stubborn and wrongheaded approach to family law will see it advocate again for a bad law to be passed by parliament – a law which it failed to pass in the last parliament. This approach is not only irrational but is extremely disrespectful to the views of the significant stakeholders in the family violence services sector,” Mr Moses said.

“These dedicated professionals who understand this area better than any member of the government have made it clear that this policy will hurt children and families. As lawyers and members of our community, we all have a stake in this, regardless of where and what we practice.”

He reiterated that “specialisation matters” when it comes to addressing the inherent issues with the family law system.

“There is a dire need to resource and reform the family law system. We do not accept, though, that the way the government has sought to go about this would deliver meaningful reform,” he said.

“Last year, the Attorney-General announced in May a proposal to merge the specialist Family Court into the generalist Federal Circuit Court. There was no consultation with the community or the profession over the proposal – only with three heads of jurisdiction.

“The Law Council vehemently opposed the merger last year, and we will continue to oppose it because we do not support bad policy that will hurt children and families. With or without further amendment, we remain concerned that the merger will result in the loss of a standalone, dedicated Family Court as we know it, to the detriment of those in need of specialist family law assistance.

“Further, we do not accept the purported efficiencies it has been claimed the merger will produce. Rather, we are concerned it will further increase cost, time and stress for families.”

The merger fails, Mr Moses continued to alleviate the “fundamental problems plaguing the system”, including the risk of victims of family violence falling through the cracks.

“Abolishing a standalone specialist family court, whether directly or by abeyance, is no fix. Refusing to inject desperately needed funds and resources into a crippled system unless the parliament votes for the government’s plan is certainly no fix,” he argued.

“We are not alone in holding these concerns – they are shared by stakeholders and family violence support providers including Women’s Legal Services Australia, Rape and Domestic Violence NSW and Community Legal Centres.

Instead, the profession needs to retain a specialist, standlone family court, there must be “alternative holistic structural reform of the system”, and the government must adequately consult with stakeholders and carefully consider their recommendations.

“To suggest any one of these propositions is ‘radical’ is a fake argument. There should be nothing radical about the concept that critical social justice infrastructure should not be irrevocably altered without informed consultation and discussion with those who use the court, work in the court, or whose lives are irreversibly shaped by its decisions,” Mr Moses said.

Unusual to hire “junior junior” barristers to help with big cases?

Rookie Richard Howell once worked for Dominic Cummings on the Vote Leave campaign

One of the lawyers defending Boris Johnson in last month’s landmark Supreme Court case on the prorogation of parliament was only just finishing off his barrister qualifications at the time.

Richard Howell, who officially joined Brick Court Chambers last month after completing pupillage, was part of the government’s legal team alongside Sir Eadie QC and two heavy-hitting juniors. He had previously played a key role in the successful Vote Leave campaign to leave the EU, working closely with Johnson’s top advisor Dominic Cummings.

Former government lawyer Carl Gardner said that instructing a newly qualified barrister in such a high profile case was “surprising” and raised questions for the Attorney General’s office.

But the Attorney General’s spokesperson said that it was not unusual to hire “junior junior” barristers to help with big cases.

Howell, who was called to the bar in 2018, is listed in both the High Court and Supreme Court judgments in the prorogation case as one of four government counsel. The others were Sir James Eadie QC, David Blundell and Christopher Knight.

Eadie is First Treasury Counsel and handles the government’s most complex and sensitive cases, while Blundell and Knight are both on the Attorney General’s panel of preferred lawyers for government work.

The government can instruct “junior juniors” to do low-grade work without needing to recruit from the preferred panel. The Attorney General’s office told Legal Cheek that there was nothing particularly unusual about retaining a junior junior, but confirmed that the Attorney General had personally signed off the legal team.

Although new to the bar, Howell (pictured below) boasts an impressive CV. He graduated from Oxford with a first in history in 2014, took a distinction in the GDL in 2015 and an outstanding BPTC grade in 2018. In between, he worked as a researcher for the Vote Leave campaign and was said by insiders to be the brains of its research operation.

Patrick O’Connor QC had told The Lawyer “on what I have been told, the process of this appointment to the Prime Minister’s counsel team, in such a sensitive case, is surprising, and calls for explanation”.

Gardner told Legal Cheek “I think people are right to be asking questions about this, and that the Attorney’s office should answer them”.

A spokesperson for the Attorney General’s Office said: “As with any case of this magnitude, the Attorney General agreed the composition of the counsel team for Miller v The Prime Minister. As a junior junior, Richard Howell was supervised by First Treasury Counsel Sir James Eadie QC and other more senior members of the counsel team, David Blundell and Chris Knight”.

The Brick Court website says that “before coming to the bar, Richard worked for a year in politics, providing policy advice and assistance to cabinet ministers, MPs and peers”.

This is a modest description of what many say was a key role in the Vote Leave campaign.

Howell is described in the book All Out War, a well-reviewed account of the EU referendum campaign, as a “whizzkid” researcher nicknamed “Ricardo” by Dominic Cummings and other Vote Leave figures.

According to the book, Howell drafted part of Vote Leave’s application to be designated as the official Leave campaign by the Electoral Commission. Howell reportedly spotted a glaring error in the application form the night before submission — which might otherwise have allowed the Nigel Farage-backed Leave.EU group to become the official face of Leave.

Last year, Dominic Cummings mentioned Howell on his blog as one of Vote Leave’s key figures.

Howell officially joined Brick Court in “September 2019”, and was reportedly still completing his pupillage when instructed in the prorogation case. His practising certificate dates from 23 September 2019, according to the barristers’ regulator — one day before the Supreme Court handed down its judgment.

Brick Court Chambers has been approached for comment.