Unprotected Speech: A Footnote to the First Amendment

Although the First Amendment preserves several rights, the one of import for this post is the freedom of speech (FoS). The FoS is one of the prized rights retained by the people, and there is a heavy burden on government action that infringes on this right. There are many tests and legal presumptions (also could be the subject of another blog), but ultimately not all speech is treated equally. Basically, there is protected and unprotected speech. The classic example of unprotected speech is the person who yells “fire” in a crowded movie theater, when there is in actuality no fire at all.

So, here is a laundry list of the various forms of unprotected speech: speech that 1) creates a clear and present danger of imminent lawless action; 2) constitutes “fighting words” as defined by a narrow, precise statute; 3) obscenity (speech, film, etc.); 4) if it constitutes defamation; 5) or violates regulations against false or deceptive advertising.

This is a very basic summary of the exceptions to the First Amendment. There is a plethora of case law on what the court defines as clear and present danger. You will also notice that “fighting words” depends on a “defined, narrow, precise statute.” In summary, while Americans enjoy freedom of speech remember that it can be curbed within reason.

General Power of Attorney (PoA)

Yet another post on power of attorney. The general idea behind a PoA is granting someone the authority to act on your behalf. While a PoA can be as broad or as narrow as you want, we trend towards a few variations. We already discussed the healthcare power of attorney, and now I am providing a form for an example general power of attorney. For more example documents check out our forms page.

Advanced healthcare power of attorney (PoA).

Meeting with a financial planner recently it dawned on me to write a post on healthcare power of attorneys. The healthcare power of attorney sometimes overlaps with a living will, however they are quite distinct. It just makes sense to plan for these future uncertain events, even if it does make us a little uncomfortable to think about. These documents are instructions to a person of your choice on how you wish to proceed in the event that you cannot make such decisions for yourself.

This issue came to the forefront in 2005 in the Terry Schiavo case. You may remember that the husband was unable to have his wife’s life support withdrawn should she be in a persistent vegetative state. Although that was his wife’s wishes, without her preparing a living will he was compelled to defer to the opinions of doctors and state law. This predicament can be avoided completely in Louisiana by having a living will. The Louisiana Secretary of State provides a form which is a very basic document you can use to evidence your own wishes. The form can be downloaded here.

Although helpful, the living will supplied by the Louisiana Secretary of State is very basic. To supplement the living will we always suggest an advanced healthcare power of attorney (sometimes called an advanced directive).  A typical healthcare power of attorney grants authority to make medical decisions on your behalf, should you be unable to do so yourself. In contrast, an advanced directive grants a very broad scope of authority that is often not included in a typical PoA.

As a result, we offer our clients an advanced directive that we believe is is more comprehensive than a typical PoA. This includes an explicit provision on the requirements of Louisiana Civil Code Article 2997, defining special terms, and consideration of tube feeding, extraordinary suffering, and liability of the appointee. Here is an example of our advanced directive to get a better idea.

As I’ve said over and over, the lawyers job is to process information and create the desired outcome for the client. Especially with living wills and healthcare PoAs/advanced directives, no single form or sample is sufficient to cover all circumstances. These are issues that are very sensitive and require difficult moral decisions. Whether right or wrong is not the role of the attorney. Rather, our goal is to meet your wishes, and let you answer these difficult moral questions rather than putting the burden of such a decision on someone else.

 

Forming a corporation, LLC, and other business entities.

Forming a Louisiana business entity is pretty straightforward. The secretary of state website is very useful and contains all of the forms necessary to get your corporation, partnership, or LLC up to the proper legal status. Years ago these were things that only attorneys could do. Now, anyone with an internet connection can go to this link, fill out the proper forms, send the money, and you are now an official Louisiana business entity. All the forms you would every need for setting up your business can be found here.

Now you know where to go to create a business without consulting an attorney or an accountant. For most solo, or small family business entities without shareholders or stock value this remains a convenient and low cost way to do these things yourself . Obviously, I would encourage consulting a professional if you have any uncertainty or for more complex businesses. Much like a will, a lawyer can analyze your specific situation and do his or her best to avoid future complications.

Orleans 2012 Duty Judge Calendar

Obviously, this will only be helpful for local attorneys. I am bookmarking a link to this page to find the Orleans Parish 2012 Duty Judges more conveniently.

Some procedure for your arsenal: use of the highway statute.

I’m not sure about every law school out there, but at mine procedure was very heavily stressed. Legal procedure is all about knowing the rules, applying the rules, and ultimately creating a file that is ready to go to trial. For other lawyers out there you know that service of process (SOP) is a key ingredient from the very beginning.

While most lawyers are probably familiar with the long arm statute, a lesser known or used tactic is Louisiana Revised Statute 13:3474. Also known as the “use of the highway” statute, this rule is created for protection of the citizens of our state. Basically, this statute declares that anyone that has operated a motor vehicle on a highway within the state of Louisiana has appointed the Louisiana Secretary of State as their registered agent. This applies to nonresidents or just passers by, if you’ve driven into the state, the Secretary of State is your agent or representative.

Since this statute involves a non-resident the question of due process will likely be an issue. It is my opinion that due process is met when there is a good faith effort to make reasonable steps to notify a person. Ultimately, if someone does not want to be found they can find a way to hide. But, for my dollar I use the Long Arm Statute and the Use of the Highway Statute. I think you’ll find that the extra effort is worth the trouble.

Sometimes personal injuries are caused by negligence.

Personal injury cases tend to be negligence cases. Car accidents, dog bites, slip and falls, etc. If it is not an intentional injury, then it typically falls under negligence. In general terms this is when someone is injured due to another’s neglect of a certain “duty.” Legally, we all have a duty, which may be as general as the duty to refrain from hurting others, or which may be a more specific duty, such as a doctor or an engineer. But, this is a post on general negligence and personal injury cases.

A prospective client was explaining his legal scenario to me: he was at the grocery store and he bumped his hip on the corner where the cash register was located. He said that he had a horrible bruise on his hip the next day, but at the time he thought nothing of it. He wanted legal advice.

While I haven’t given you all the facts, I will tell you what my train of thought was. First, Louisiana does provide for recovery for injuries caused by negligence. However, there is a certain burden that must be met in order to for the statute to extend a remedy. This Civil Code article governs vices in “things,” but it sets forth the general requirements for negligence. In other words, the grocery store would only be negligent if it could be shown that 1) it knew or in the exercise of reasonable care should have known the corner of the desk would cause damage; 2) that if the grocery store exercised reasonable care it would have prevented the injury; and 3) that the grocery store failed to exercise reasonable care in this instance.

While this analysis is not applicable to all situations, it gives you an idea of what a plaintiff must prove to show that a defendant was negligent.

 

Notarial Wills

Besides the olographic will, Louisiana also has what is called a notarial will. This is the type of will that you will get when you retain the services of an attorney. The Civil Code sets out the basic requirements which are typically adhered to quite strictly. Anyone can draft up a piece of paper that meets these requirements, but that document might not have the end results you want. Consulting with an attorney is advised because they are trained to prepare the document in such a way that it conforms with your wishes after you have passed away.

Basically, you are paying for piece of mind. Lawyers will quiz you on your assets, children, spouses, and various other questions that seem irrelevant. However, what an attorney is doing is going through a mental checklist to create a will best suited to your needs. Ultimately, most people put their affairs in order to avoid conflicts or confusion after death. Who wants to pass away and leave a legacy of infighting between heirs, confusion as to what to do, or leaving unnecessary expenses. One situation that I hate to see is when clients spend exorbitant amounts of time and money hiring a lawyer, paying court costs, and other expenses that could have been avoided by having a will.

Hopefully this will convince you that consulting an attorney about a will is worth the time and money on the front end. If not, think about your legacy. You can decide, or you can let the State of Louisiana decide for you. Look at our forms section for an example of a “simple will” that is actually quite complex.

Louisiana wills.

There are two types of wills in Louisiana, the notarial will and the olographic will. The olographic will can be written on any sheet of paper, even a napkin, but it must strictly conform to the requirements of the statute.

It must be entirely “written, dated, and signed in the handwriting” of you- the testator. At the very end of your will you must sign it and preferably date it. Everything written in your handwriting before your signature will be a completely valid will (in most cases but remember our tacit agreement page).

Remember, you have to follow the statute exactly as written. Any small changes could end up in the will being entirely or partially disregarded. There are several cases that have held that where the olographic will does not conform exactly to the statute, it will be disregarded. Just one example is a First Circuit case where a will was entirely typed and then signed at the bottom, the court held it was not a valid olographic will.

One more thing, if you decide to write an olographic will even dating the document can be tricky. Slash dates, such as 4/7/2011 are not suggested, since it is uncertain if it was written in July or in April. Check out our example olographic will on our forms page.