Do I Need Title Insurance?

Posted on April 14, 2014 10:39 by Jeremiah Yourth

So you’re buying your first house?  Be prepared to be hit with an avalanche of foreign terms, various fees and strange requirements. One of those various fees is for a policy of title insurance. Typically, you will be borrowing money from a lender to purchase your house, and thus, you have no option other than to buy a title insurance policy for the lender. This is a requirement of virtually every lender. The lender’s policy of title insurance, as you may have guessed, protects only the lender up to the amount they are lending you. The next question you will be faced with is whether you would like to purchase an owner’s policy of title insurance which generally leads to the question of “What is title insurance?”

The short answer is title insurance is an insurance policy that insures that you actually own all of the property you are paying for. Of course, before you close on a home, the title company is going to go to the clerk’s office and search the land records to make sure that the people selling you the property actually have legal title to the property. However, while the records in the clerk’s office are official, they are also sometimes wrong or incomplete.

For instance, perhaps a lien against the property was incorrectly recorded or indexed or taxes were not paid. Or, maybe the property that you want to purchase was owned by Mr. Lee 50 years ago and Mr. Lee passed away while he still owned the property. If all of Mr. Lee’s heirs who had a claim to the property didn’t properly execute the deed there could be issues. Or maybe Mr. Lee was a bigamist with an extra spouse. Obviously, this would not show up in the public records. Would Mr. Lee’s heirs or other wife have a claim against the property?  That may only become clear after expensive litigation, and you may wind up losing the house.

So do you need title insurance?  The short answer is “yes.”  You do need an owner’s policy of title insurance. While the chances of any of the above are admittedly small, there is no reason to take the risk when making a huge investment such as buying a house. Purchasing an owner’s title insurance policy will protect you from expensive litigation and possibly losing your property. If suit is filed against you regarding title to the property, the title insurance company will retain and pay for an experienced lawyer to resolve the issue on your behalf. If he or she is unable to resolve the issue or ultimately loses at trial, they will reimburse you for the value of the property. As purchasing a home is typically the largest investment you have ever made, why not protect it?

Some of the most difficult cases to prosecute are medical malpractice and nursing home malpractice cases.  The Virginia General Assembly have put in place some significant legal hurdles, which favor the medical profession in some way but result in the attorney carefully evaluating  these cases early in the process.  This is not always a bad thing.  It does require you to do a full evaluation of the case at the outset.  Under Virginia law you cannot serve a doctor or other health care provider with a malpractice suit unless you have a written opinion from an expert practicing the same specialty stating that the person or institution you are suing breached the standard of care and is guilty of malpractice.  When you serve a suit you will be immediately asked to provide a copy of the written opinion.  We will generally attach the opinion letter as an exhibit to the suit. 

With this caveat in mind, what should you do if you think that you or someone you love has suffered injury as a result of the malpractice of a health care provider?

The first step is to get the complete medical record of all treatment of the condition, which leads to the malpractice claim.  The health care providers by law must provide you the records if requested.  They can charge you for the copies but they have to give them to you.  The records are needed in order for the attorney to properly evaluate the claim.  The attorney will also need to provide a complete copy of your records to potential expert witnesses.  You will be able to get a quicker evaluation if you can provide the records at the initial consultation.  The attorney can immediately engage the potential expert much quicker.

There is a limitation period for bringing a malpractice claim, which must be kept in mind.   If the claim is not brought within that period it will be dismissed.  Sometimes it takes months to secure an expert particularly when our office has to get the medical records as they have not been provided by the client.

The other difficulty on malpractice cases, which must be kept in mind, is that not every bad result is the result of malpractice.  When you read the authorization for surgery there are a number of disclaimers which spell out potential complications.  Bad results and complications can occur in many cases where the health care providers have done everything correctly.

Malpractice cases are winnable, but in order to have your best chance at success, you need to seek legal help early in the process, and get the complete medical records together as soon as possible.

Deferred Disposition in a Criminal Case

Posted on March 18, 2014 09:01 by Amy Hensley

Don’t Blow a Second Chance

Sometimes a defense attorney is able to land her client a chance to have a charge dismissed or reduced by persuading the court or making an agreement with a prosecutor. The court generally wants something in exchange for this. Often a court will order a defendant to attend a class, complete community service, go to counseling, or successfully complete a substance abuse program within a specific time period.

When a court orders you to complete 50 hours of community service to have your charge dismissed, don’t wait until the week before court to start volunteering. When the judge assigns you a probation officer to monitor your substance abuse classes and drug screens, go to your appointments. When the judge orders you to complete a domestic violence class, go to the class.

If you don’t comply with the court’s order, you most likely will find yourself with a new charge in addition to the underlying charge you had taken under advisement. What happens when you go back before the judge with a lousy excuse for why you haven’t completed the class you had months or even years to complete? You may go to jail. You may be convicted of two charges instead of one. You may forever have a criminal history because you did not do what the court ordered. Some defendants think that since they have a second chance, they can get a third, fourth or fifth. It is a good idea to seek legal counsel if you find yourself in this position.

LLC v. Sole Proprietorship

Posted on March 13, 2014 04:38 by Jeremiah Yourth

Many people come to me with the same question:  “I am in the process of starting a small business but I am not sure if it’s worth forming a separate entity for my business.  What should I do?”  There are several different types of business entities that can be created to protect both you and your business from any number of issues that may arise.  One of the most common entities is a Limited Liability Company or a LLC.  There are both benefits and disadvantages to forming a LLC; however, the benefits of forming a LLC far outweigh the benefits of doing nothing or operating as a sole proprietorship.

First, LLCs provide liability protection to their owners.  The owners of a LLC are typically not personally responsible for the business debts and liabilities of the LLC.  In other words, creditors of the LLC cannot pursue the owner’s personal assets, such as their house, bank accounts, etc., to pay the debts of the business.  With a sole proprietorship, this is not the case as the individual and business are considered the same entity and the personal assets of the individual can be pursued to pay the debts of the business.  Another benefit of a LLC is that LLCs are permitted to establish just about any management and organizational structure that is agreed upon by the company owners.  An LLC can be managed by the owners/members or by a single manager appointed by the owners.  Other benefits include simple pass-through taxation.  LLCs generally do not pay taxes at the business level, and instead, any income or loss is passed-through to owners and reported on their individual tax returns.  There are also less stringent government-imposed regulations, and quite frankly, simply having the “LLC” after your business adds credibility to your business. 

There are some minimal formation costs and fees that must be paid to the State Corporation Commission and it’s a good idea to have a thorough Operating Agreement drafted by an attorney, but for many small businesses, forming a limited liability company offers flexibility, credibility, and perhaps most importantly, protection for your personal assets.

Appointment of a Guardian Ad Litem

Posted on March 5, 2014 05:09 by Erica Giovanni

Appointment of a Guardian Ad Litem to Your Custody and Visitation Case

Virginia family courts frequently appoint Guardian Ad Litems in custody and visitation cases. When parents learn of the appointed guardian in their case, they have many common questions and concerns. For example:

  • Is he or she an investigator, an attorney, or both?
  • Will he want to speak with me or my lawyer?
  • What will she tell the judge?
  • What impact can he have on my case?

Generally speaking, there is mystique surrounding the Guardian Ad Litem’s role.

This past fall, the Standing Committee on Legal Ethics for the Virginia State Bar issued Legal Ethics Opinion 1870. In this Opinion, the committee elaborates on the role and responsibility of a Guardian Ad Litem. A Guardian Ad Litem is to represent, as an attorney, the child and his or her best interests before the Court. The Guardian Ad Litem must act as an attorney and not as a witness, which means that he or she should not testify in court. Just like an attorney for a father or mother, a Guardian Ad Litem is a full and active participant in all the litigation. He or she must investigate the facts, interview witnesses, prepare for trial, and argue the facts to advance the interests of his or her client: the child.

Because of the Guardian Ad Litem’s role and responsibility as an attorney, he or she is subject to the same professional and ethical rules as any other lawyer. For example, a lawyer may not communicate with a represented party. The Guardian Ad Litem may not communicate with the father or mother if either is represented by legal counsel. Likewise, the father’s lawyer and mother’s lawyer may not speak with the child if a Guardian Ad Litem is appointed to represent the child. The only exception is when a Guardian Ad Litem consents to communication or a court order authorizes such contact.

Other implications of the Guardian Ad Litem’s role and responsibility may not be as apparent. For example, given the Guardian Ad Litem acts as an attorney, a court arguably should not delegate judicial functions to the Guardian Ad Litem. All decision-making power should remain with the judge.

What does that mean for your case? Well, for starters, a court probably should not give a Guardian Ad Litem the authority to determine or modify custody and visitation parameters during the pendency of litigation. Courts frequently do so, often for compelling reasons. Nevertheless, ethical duties and rules should take precedence.

If you have questions or concerns concerning the role of a Guardian Ad Litem appointed in your case, an experienced family law attorney can assist you. The attorney can also communicate effectively with the Guardian Ad Litem in your case to promote what you believe is in your child’s best interests.

No Haziness on Marijuana Laws in Virginia

Posted on February 26, 2014 09:15 by Amy Hensley

What you do in Denver better stay in Denver!

Since 1996, 20 states and Washington, DC have passed laws that allow marijuana for some medical conditions. [1]  In 2012, Colorado and Washington legalized marijuana for adults 21 and older under state law.   So, are you wondering if bringing home some of that Mary Jane that you legally purchased and consumed in Denver on vacation could result in you being charged and prosecuted for possession of marijuana in Virginia? Lawyers, with a gleam in their eyes, love to say that the law is grey. This, however, is not a hazy area of the law in Virginia. It is illegal to possess and consume marijuana in Virginia, even if you legally purchased it in another state. In addition, marijuana is illegal pursuant to federal law.

It also may be useful to also know that if you smoke pot in Denver, you shouldn’t brag about it when you get home. An admission that you consumed pot is what prosecutors like to call a confession.  While you cannot be convicted of a criminal offense solely on your confession, if a police officer happens to find marijuana residue on a bong in your suitcase, you may find yourself looking at potential jail time. There is no haziness on marijuana laws in Virginia, so make sure what you do in Denver stays in Denver.

[1] The White House’s Office of National Drug Control Policy -

[1] The White House’s Office of National Drug Control Policy -

Samuel Kaufman Shoots Hire Spiders Ad

Posted on November 20, 2012 15:35 by superadmin

The retirement benefits of members of the military are also not divided using a QDRO because these benefits are not subject to ERISA.  Instead, military retirement pay is divided using a Court Order, which will meet all the requirements of the relevant federal laws and regulations.  Central to the division of military retirement pay is the Defense Finance and Accounting Service (“DFAS”), which is akin to the Plan Administrator for private defined contribution and defined benefit plans and to the Office of Personal Management for federal civilian retirement.

A minimum of twenty years of service is required for any member of the military to receive retired pay, unless the service member is forced to retire because of disability.  Military retirement benefits are computed under one of three formulas which is keyed to the year the service member entered active duty; partial credit is given for service in the Reserves or National Guard.  Only Disposable Retired Pay, which is the service member’s total monthly retirement pay less deductions for previous overpayments of retired pay, forfeitures ordered by a court martial, certain disability retirement payments, and the amount deducted to provide a Survivor Benefit Plan annuity for a spouse or former spouse pursuant to a Court Order, can be divided by a Virginia Court in the context of a divorce.       

As with the retirement benefits of federal civilian employees, a portion of the service member’s Disposable Retired Pay cannot be paid to the former spouse until the service member actually retires.  Additionally, any survivor benefits awarded to a former spouse will stop if the former spouse remarries prior to the age of fifty-five. (Though, if the former spouse’s marriage terminates by death, divorce, or annulment, the payments can be reinstated.)  However, survivor benefit coverage must be elected by the service member on or before his retirement, even if they are required by Court Order.  As a result, a domestic attorney representing the estranged spouse of service member (or former service member) must be mindful of the service member’s date of retirement.

The retirement benefits of federal civil servants are not divided using a Qualified Domestic Relations Order (“QDRO”) because these benefits are not subject to the Employee Retirement Income Security Act (“ERISA”).  Instead, the retirement benefits of federal civil servants are divided using a Court Order referred to as a “Court Order Acceptable for Processing” (“COAP”), which will meet all the requirements of the relevant federal laws and regulations.  Central to the division of federal civil service retirement benefits is the Office of Personnel Management (“OPM”), which is akin to the Plan Administrator for private defined contribution and defined benefit plans.

An employee of the Federal government (other than those who are military personnel, who are treated differently) will be covered either by the Civil Service Retirement System (“CSRS”) or the Federal Employees Retirement System (“FERS”) depending upon when he or she began working for the federal government.  (Though, under certain circumstances, CSRS participants were able to switch to the FERS once it became available.)   CSRS participants are enrolled in a defined benefit plan similar to the pension of a private company.  However, they are not covered by Social Security and, before their retirement, they do not pay Social Security tax on their earnings.  FERS participants, on the other hand, are covered by Social Security and do pay Social Security taxes on their earnings.  In comparison to their CSRS counterparts, though, they receive a much smaller defined benefit upon retirement.  But, FERS participants are enrolled in a 401(k)-like system called the Thrift Savings Plan (“TSP”).

When dividing the pension component of federal civil service retirement benefits in the context of a divorce, it is important to remember that there are three separate types of CSRS or FERS benefits subject to division: employee annuities, refunds of employee contributions, and former spouse survivor annuities.  The participant’s TSP is also subject to division in a divorce.  A well-versed domestic attorney will assist the client in negotiating a settlement that maximizes his or her potential eligibility for these components.

It is difficult to imagine how the generations before us survived without the technology  available today.   I know books helped, but Google provides answers in seconds.  Data, translations, email, directions, and the answers to even the most random questions are instantaneously delivered upon request.  Now, with smartphones we carry these capabilities, as well as our private lives, with us everywhere that we go.  Our texts, emails, internet search histories, Facebook messages, videos, photos, and GPS trackings reveal a lot about our day, movements, preferences, and thoughts.  While we gain convenience with this technology, the information is also valuable to others for a number of reasons. For example, retailers already used our smartphones to track our whereabouts at the Short Pump mall.  It is an efficient way to cheaply target marketing and learn our preferences without asking us.  Luckily this experiment was shut down pretty quickly.  Not only may smartphones impact businesses, but it is inevitable (at least in the foreseeable future) that they will have a huge impact on the criminal justice system and how law enforcement agencies gain private, perhaps incriminating information, about us.   

                The United States Supreme Court and the Virginia Supreme Court have yet to determine whether it is a violation of a person’s 4th Amendment rights for the police to search a person’s smartphone incident to arrest.   Courts across the country have rendered split decisions on this very question.  As a reminder, the 4th Amendment protects a person from unreasonable searches and seizures.  So what does this mean?

                It means that until the courts hold that our smartphones cannot be searched incident to arrest, our private lives may be available to be viewed and used against us, if appropriate.  For example, under the current law, it is not clear that it would be impermissible for a police officer to search a person’s smartphone upon arresting her for trespass.  Presumably, a person’s phone has nothing to do with trespass, and there is no obvious reason in most cases as to why an officer would have a reasonable articulable suspicion that the phone contains evidence of the crime of trespass.  Today, however, a person’s smartphone might be searched under this very scenario.  What about a DUI? Let’s say a person is pulled over for swerving, alcohol is smelled, and field tests are failed. The person is arrested, and his phone is searched on the drive to the jail for the breathalyzer test.   Texts on the phone reveal that the person, who now sits silently in the back of the patrol car, told his friends not less than an hour ago that he was on his eighth beer.  In this scenario, one might feel inclined to be grateful to the police for making sure this person, who undoubtedly is a hazard to public safety, is convicted.  Law enforcement agencies, however, have other avenues for collecting evidence to convict this offender without violating his privacy rights. After all, remember that we did not have smartphones until a few years ago and people have been convicted of DUIs for decades. 

So what should you do?   Always be polite and cooperative to the police, but handing over your smartphone for a voluntary search is definitely one way to make sure that any evidence found on your phone can be used against you without a 4th Amendment violation challenge.  In addition, put a password on your phone.  It will be interesting to see how courts adapt to this ever-changing technology.