South Dakota Recent Legal Answers from Lawyers

Probably yes.  Unless you have some sort of agreement (could be a collective bargaining agreement, or can arise from an employee manual) with your employer which limits its right to pay its employees whatever it wants (i.e. a contract which provides that employees are supposed to be paid by seniority, or guarantees that you will be paid more than any new hire, or something similar), or unless you believe that you are being discriminated against for a statutorily prohibited reason (gender, race, religion, etc.), an employer can pay a new hire any amount (above minimum wage) it and the new hire agree on.  There is no legal requirement that the employer pay its more experienced employees more.... Read Answer

I do not see the correlation between the traumatic birth and the inner ear injury, but if you want to investigate a medical malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts.  Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well. Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case. This discusses the issue of financial viability. Click here for an article that explains what you can and should expect when pursuing a medical malpractice case. Click here, here  and here for more information about me. Click here for summaries of some of the cases that I have litigated. Click here to review articles that I have published. Since I am a lawyer, I need to advise you of the following when I communicate with you: Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Click here for my website. ... Read Answer

If you own a book and sell pages (not copies, but the actual pages) from the book you own, you have not copied anything, so there should be no copyright infringement. There have been legal actions in the past for activies modifying the art work of artists. Colorizing movies, altering the resolution, restoring art, etc. There may be a cause of action related to modifying art work (in this case, the art work is the book), but I have no knowledge of it applied to your hypothetical facts. Good luck, Todd... Read Answer

Yes, the father has equal rights to the custody. But he would have to file a paternity action and have it proved he is? the father, which requires an order to have chord blood used to do this (at a cost of approximately $750). He is not the father until she says he is on the birth certificate or paternity is established. We know she is the mother, All kinds of witnesses saw her give birth. She will? take the child home. Now, after that happens and the fact they are dividing up their lives, well they need to get the right paperwork together, get a parenting plan adopted and such. There are consulting attorneys like myself who charge $65 an hour to educate, fill out forms and then have you get them filed properly with the court if that would interest you.... Read Answer

You are asking whether or not you can protect certain assets in a bankruptcy case.  The answer depends on which chapter of bankruptcy you file and what exemptions are available to you under applicable law. Exemptions are "protections" for value you have in certain assets such that they are "exempt" from collections.  Every state has different exemptions amounts available. Exemption laws are based on the state where you resided for the 2 years prior to filing your bankruptcy case or, if you lived in more than 1 state during that period, in the state where you resided for the greater part of the 180 days prior to that 2 year period.  The way to determine which chapter you should file and which exemptions apply is to have a consultation with an experienced bankruptcy attorney in your area. Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.  ... Read Answer

If you are working 40 hours and just 30 minutes of overtime in a week, you are entitled to 30 minutes of overtime.  The only possible explanation the employer could have for waiting for 45 hours would be if you have a one hour lunch each day during which you are not working.  Otherwise, you are owed overtime for those 5 hours... Read Answer

There is no question that leaving a foreign body behind during the surgery is negligence (although that doesn't mean that the hospital or physician will attempt to disclaim responsibility). Retained foreign bodies are considered "never events." Never events should never occur, and Medicare and insurance companies take the position that they will no longer provide coverage for consequences related to these kinds of mistakes. I have linked you to an article I wrote about never events at the bottom of this page. I think the issue will be whether your case is financially viable. Their articles to discuss this issue at the bottom of this email as well. Medical malpractice cases are very costly and time consuming for lawyers to pursue, and in most circumstances attorneys will not take them on unless a patient suffered a significant permanent injury that causes substantial disability as a result of the medical mistake.  If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine. Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well. Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case. Click here for an article that explains what you can and should expect when pursuing a medical malpractice case. Click here and here for more information about me. Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Click here for my website. ... Read Answer

Filing bankruptcy only eliminates the obligations of the party filing bankruptcy.  It does not alter the obligations of anyone else.  So, if your brother-in-law was obligated on the debt before you file bankruptcy, then he will be liable on it afterwards. In a Chapter 13 case only, creditors would be prohibited from trying to collect from your brother-in-law due to what is known as the "co-debtor stay" during the time you're in the Chapter 13 case, but would be free to collect from him pursuant to the laws of whatever state controls after your Chapter 13 case is completed (if you did not pay 100% through the Chapter 13). Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.  ... Read Answer

The quick diagnosis by the speech therapist certainly suggests medical malpractice. Cleft palate is usually treated with surgery within the first 6 months to year after birth. If the delay in diagnosis is causing the problems and the need for multiple surgeries, then you should definitely contact a malpractice lawyer.  Contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine. Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well. Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case. Click here for an article that explains what you can expect when filing a medical malpractice case. Click here and here for more information about me. Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com. ... Read Answer

I am sorry to hear about your mother.  Since you have not provided many details, I can only provide you with  general information.  It is best to seek the assistance of an attorney if you are considering a medical negligence/malpractice lawsuit. These cases are usually extremely difficult to prove and pursue.  Many state laws make it difficult to file suit against health-care providers and/or hospitals.  Some states even require that an expert witness be consulted and willing to testify before a lawsuit can even be filed. This means that, if your state so requires, another doctor will have to review the medical records related to your mother's accident and resulting death and be willing to testify against the hospital before you can even file a lawsuit.  Expert witnesses can be difficult to find and are expensive.  A local medical malpractice attorney can  help you with this.  Also, a local attorney can help you determine the statute of limitations.  It is likely that you have only 2 years from the date of injury/death to bring a lawsuit.  If you desire to proceed with this potential suit, I recommend obtaining your mother's medical records and calling local attorneys for a consultation (most are free).  Best of luck! NOTE: This response is general in nature and should not be considered legal advice.  No attorney client relationship exists or if formed by this response. ... Read Answer

Plea offers are made in the discretion of the prosecutor, and can occur at any time, even prior to the filing of charges. In many states, it is standard procedure for the prosecutor to make an offer before the preliminary hearing, contingent on the defendant waiving the right to the hearing.  In some states, the prosecutor will pressure the defendant into agreeing to an early plea by stating if he or she declines the offer and proceeds to the preliminary hearing, no later offers will be forthcoming.By the time of the preliminary hearing, the prosecutor has seen the police reports and reviewed witness statements,  and has a fairly good idea of the strength of the case.  Depending on how long your attorney has been involved in your case, he or she may or may not have had sufficient time to review the discovery and investigate possible defenses.Pleading guilty to any crime is a serious matter. While you didn’t mention the terms of the plea offer, if the original charge is first degree arson, it’s likely the offer involves pleading guilty to a lesser felony, and a potential for a period of incarceration.Your attorney is in the best position to advise you on the local practices regarding plea offers in your jurisdiction The decision as to whether to accept the plea bargain is one you should make only after full consultation with your attorney.  If your attorney is new to the case and has not had enough time to fully review the evidence against you, interview witnesses, investigate the facts, and  if the cause of the fire is an issue,  consult with experts,  perhaps your attorney can ask the prosecutor to agree to a continuance of the preliminary hearing in order to keep the offer “alive” while completing these important tasks. Jeralyn Merritt, Ask a Lawyer Panelist Since 1998... Read Answer

None. eBay has the right to refuse service to anyone for any reason or no reason at all. If you have ever been a member of eBay, you are bound by their terms of service. Read them. Your only remedy is an appeal to eBay in accordance with their terms. See http://pages.ebay.com/help/account/suspended-accounts.html.  ... Read Answer

The standard of review is essentially de novo -- in order to prevail on appeal, you must show that a reasonable jury could have found in your favor. That means that you must have offered at least colorable proof on each element of your claim. Without knowing how your claim was dismissed, it is impossible to express a further view on the likelihood of success on appeal.... Read Answer

Please see: http://dictionary.law.com/Default.aspx?selected=306 and http://en.wikipedia.org/wiki/Consignment This is not intended to be legal advice, and is general in its nature. No attorney-client relationship exists or is formed by this information. Furthermore, this does not represent the views or opinions of LexisNexis or its affiliated companies.... Read Answer

You may have a medical malpractice case, although I think it will be subject to the defense that this outcome was a risk inherent in the procedure.  If you want to investigate a case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts.  Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well. Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case. Click here for an article that explains what you can expect when filing a medical malpractice case. Click here and here for more information about me. Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com. ... Read Answer

Entry without inspection (EWI) means that the individual when entering the States did not appear before an immigration inspector for admission. Kindly note that persons who attempt to sneak into the U.S. and are caught by DHS while in the act of entry and subsequently paroled are not counted as EWI's; neither of those who pass by immigration inspectors using false documents. The latter two categories may be eligible for adjustment of status to permanent residence in the U.S. if they are immediate relatives of U.S. citizens (spouse, parent, or child under the age of 21 and unmarried) although the ones using false documents will require proof of the false document and a waiver of the fraud or misrepresentation. Please note that waivers are discretionary in that U.S.C.I.S. may or may not grant them.... Read Answer

A statute of limitations is a law setting a time limit on legal action in certain cases. There are different statutes of limitations on different kinds of cases. For example, a breach of contract case often has a longer statute of limitations than a personal injury action. Complicating matters more is the fact that the statute of limitations in any cause of action is usually governed by state law, and different states have different time limitations. Click here for a website that provides a rough estimate of the statute of limitations in all 50 states for common causes of action. Note that this website advises that these limitations periods are merely rough estimates. You should contact a local attorney (one in your state) who can tell  you whether these estimates are correct. In medical malpractice cases, circumstances sometimes justify allowing cases to be filed after the statute of limitations expired. For example, if a surgeon leaves behind an instrument during a surgery and a  patient only discovers the foreign object after the limitations period has expired, most states have a common law exception to the statute of limitations that would allow a plaintiff to file a lawsuit that would otherwise be out of time. Finally, statutes of limitations usually incorporate exceptions that extend the limitations period for minors and people who are incapacitated. If you think that you may have a viable malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts.  Click here for an article that explains what you can expect when filing a medical malpractice case. Click here for more information about me. Click here for more information about my firm. Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com.... Read Answer

You may have a viable malpractice claim. Treatment of the diabetic foot requires the utmost caution. The doctor probably should have considered doing vascular studies on your leg prior to removing the toenail and you probably should have been placed on prophylactic antibiotics. Certainly when your reported with a blackened crusty toe he should have immediately referred you to a specialist.  You should contact a local medical malpractice attorney (one in your state).  Medical malpractice attorneys work on a contingent fee basis, which means they only get paid out of the proceeds of the lawsuit if you win. They provide free initial consultations. Sometimes an attorney will ask you to pay a "retainer" to cover the some of the expenses of a case, this is an issue that varies from office to office.  Below are some articles that you may find helpful. Although they are written for my clients in New Jersey, most of the concepts carry over to other jurisdictions. Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case. Click here for an article that explains what you can expect when filing a medical malpractice case. ... Read Answer

Thank you for your inquiry about your boyfriend.  I am sure the current situation is quite stressful for the both of you. If your boyfriend last entered the U.S. with inspection but is an overstay, he may be able to file for and obtain a green card from within the U.S. based on marriage to a U.S. citizen.  It is true that while most individuals who are here as overstays and/or have worked without permission are ineligible to obtain permanent resident status from within the U.S., this is not the case if you are applying for permanent resident status based on marriage to a U.S. citizen.  He may still be able to pursue permanent resident status from within the U.S. based on marriage to a U.S.citizen.  This is generally known as the adjustment of status process and requires filing the I-130, I-485, I-765 (work permission), I-864 affidavit of support, I-693 medical etc.  If he did not last enter with inspection and he is an EWI (entered without inspection), there are more issues that would need to be reviewed.  He may still be eligible to obtain permanent residence status based on your marriage, but he may need an I-601 hardship waiver.  See: http://www.srwborderlawyers.com/form-i-601/ http://www.srwborderlawyers.com/blog/tag/form-i-601 Hardship waivers can be difficult, and their filing procedures are changing, so if he did last enter w/o inspection, you really need to consult with an immigration attorney about his case. Regards, Andrew M. Wilson, Esq. Serotte Reich Wilson, LLP www.srwlawyers.com awilson@srwlawyers.com      ... Read Answer