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A. What’s the deal with Louisiana’s Napoleonic Code?

When people refer to the Napoleonic Code in Louisiana law they are generally referring to Louisiana’s civil law tradition.  Civil law is a codified type of law as opposed to English common law which is more of a judge made law called equity.  Our civil code in Louisiana can trace it’s roots back over 3,000 years to ancient Greece and Rome and the code of Hammurabi.  In Louisiana the legislature passes all of the laws (i.e. codifies our law) and the role of the judge or jury is to apply that law to the facts.  It is a very rare occasion when a judge can make new law from the bench. This along with over 3,000 years of precedent allow for a stability in Louisiana law that is rare in Common Law jurisdictions.

B. What is the difference between a criminal and a civil case?

A criminal case is brought by the State of Louisiana or a political subdivision of the State of Louisiana, i.e. Parish or City Courts, against a person or a group of persons.  The police may be involved in arresting the person charged, but not always.  The consequences of losing a criminal case usually involve paying a fine to the State and/or may result in loss of some or all of your civil rights, such as incarceration.  There are two types of crimes: a felony and a misdemeanor.

A civil case is brought by an private individual or the State against another private individual or the State.  So in contrast to a criminal case the State is not necessarily involved.  In a civil case the party that causes the suit to be filed is called the plaintiff.  The party being sued by the plaintiff is called the defendant.  The plaintiff sues the defendant claiming that he/she/they were injured in some way and they are asking the Court to intervene and grant the plaintiff some sort of relief, such as money damages, injunctions from doing something etc.

Some cases are both civil and criminal.  For example if an employee who stole money from a company can be arrested by the police and prosecuted by the State for the crime of theft.  The company could also sue the employee civilly for conversion (civil theft) of its money.

C. What should I consider before filing a civil law suit?

1. Liability; 2. Your ability to collect damages from the other party; 3. Your Damages.

1. Liability: Did the defendant have a duty to you and did that defendant breach that duty.  This is the most important question in any civil case for damages.  For example does a defendant who ran a stop sign and crashed into your car owe you any duty?  The answer is yes they owed you a duty to stop and look out for oncoming traffic and obey all traffic laws.  Did the defendant breach that duty by running the stop sign? Of course he did, he ran the stop sign.

2. Your ability to collect damages from the other party: Does the defendant have anything of value that can be used to pay for a judgment?

In the example above if the defendant who ran the stop sign had no insurance and was a homeless bum, borrowing a friend’s car, then you are out of luck.  Unless you have uninsured motorist coverage you are going to have to pay for all the damages out of your own pocket.  This type of case would not be worth pursuing.

3. Your Damages: You must have suffered some damages and those damages must be provable in court. You can get damages for physical pain and suffering, mental anguish and emotional distress etc. But you must show by a expert’s testimony that you did suffer in some way.  You can also get compensated for lost wages, loss of use of your car, and for medical bills.  But again you must have independent proof of these damages not just your word.  

In our stop sign example above if you go to the doctor and get checked out and the doctor finds no injuries your case may not be worth pursuing.

HOWEVER, you should always consult a personal injury attorney for advise before you decide not to pursue a suit.  Most personal injury attorneys do not charge for a consultation.  Let me say that again, on a personal injury case THE ADVISE AS TO WHETHER OR NOT YOU HAVE A GOOD CASE IS USUALLY FREE!!!  So what do you have to lose to be sure, it’s just a phone call.

D. What are Court Costs?

Simply put this is the amount of money it costs for you or your attorney to file anything with the clerk of court.  All attorneys pass this cost directly to the client without any markup.  This money is not retained by the attorney, it is your cost. Depending on what is being filed the court costs could be as little as $3.00 to as much as $4,000.00.  Most clerk’s of court post these costs on their website.

E. Do I really need a lawyer?

I get this question all the time.  First of all this isn’t really a legal question, it’s a personal one.  I always answer this question with a question: If my plumbing breaks do I really need a plumber?  I honestly don’t know much about plumbing.  So if I tried to fix my own plumbing problems I really think I will be up to my eyeballs in poop!  So, if you don’t know anything about the law and you handle your case yourself, do you think you will get good results without a lawyer or will you be up to your eyeballs in poop!  Do you want to do it right the first time or do you want to hire me to clean up the mess later?

F. How do attorney’s fees work?

First let me say this, all any attorney has to sell is his or her time.  They have about 8 to 10 hours a day to sell.  They must maximize their time and their cases to earn the most that they can each day.  It’s not about greed it’s about paying our mortgage or credit card bills just like everyone else.  No one hands us a big fat check when we graduate from law school.  Most attorneys these days start out with over $100,000.00 in debt from school and never earn more then $75,000.00 per year.

There are three basic forms of attorney’s fees:

1. FLAT FEE: You pay so much for the attorney to do so much work.  Flat fees are charged by attorneys when they know with some certainty about how much time they will be spending on the matter.  The flat fee is a fixed amount and does not change.  However, this does not include costs such as court costs, postage, long distance or special rate phone calls, expert fees etc.  Usually flat rate fees are charged for criminal cases and for no fault no contest divorce cases.

2. HOURLY FEE: These are cases in which attorney’s charge set amount of money by the hour.  Attorneys usually require a deposit or “retainer” be put in an escrow account (Interest on Lawyer’s Checking Account) and bill to that retainer at an hourly rate.  Costs can also be charged against this retainer.  This is a pay as you go type method.  Normally the hourly rate is based on the experience of the attorney and the demand for the type of work the attorney does in that geographic area.  Hourly rates can generally be as low as $75.00 per hour and as high as $500.00 per hour.   

If the attorney doesn’t use all of the retainer prior to finishing work on the case the attorney must return the unused amount.  However, if the retainer is used before the case is finished the attorney usually stops working until the retainer is replenished.  If the client does not replenish the retainer within a reasonable time or a time period specified in the client’s contract with the attorney, the attorney may withdraw from the client’s case.  

3. CONTINGENCY FEE: These are cases in which the attorney is paid a percentage of the judgment or settlement.  Again percentages can vary from 40% to 25% depending on the strength and size of your claim. If the attorney loses your claim then you owe no attorney’s fees.  However, you may still be liable for costs.

4. COMBINATION or HYBRID FEE: This is a type of fee that is a combination of two or more of the above.  For example: Combination of flat fee and hourly fee.  An attorney may take a divorce case for a $1,500.00 flat fee and work at $85.00 / hour with no retainer.  Or take a personal injury case at 20% on contingency of recovery damages and $50.00 / hour for all work done on the case.

REMEMBER FEES ARE ALWAYS NEGOTIABLE, but once the fee is in the contract it is unlikely it will change.

G. Can I fire my attorney?  Are there any consequences?

Yes, except for very rare cases your contract with your attorney is an employment at will contract and can be terminated at anytime.  Your attorney must then give you a copy of your file within a reasonable amount of time even if you owe him or her money.

Depending on the contract you had with your attorney there could be some consequences.  However, an attorney generally cannot infringe upon your ability to choose counsel of your choice.  The most common consequence though is that the attorney my file a lien on your case for any unpaid fees he or she is due.  This may have to be paid out of you judgment or out of your own pocket.  

H. Are there any time limits to filing a: 1)  civil case?; 2) criminal case?

1) Civil cases statute of limitations or prescription as we say in Louisiana very.  You should really consult an attorney as soon as possible to find the particular prescription date for your case.

2)  The State of Louisiana has different limitations based on the type of crime (felony or misdemeanor) and whether or not you have been indicted/charged by a bill of information or just arrested.  Again you should direct these questions to a competent criminal attorney.

I. What is the difference between a power of attorney (POA) and an interdiction?




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