Criminal Law Jobs - 12 Basic Legal Concepts

We’ve tried to explain 12 basic criminal law concepts which will give you a better understanding of some of the ideas you would need to master if considering a career in criminal law.

Actus reus – this Latin phrase translates which directly translates to guilty act. In a criminal case it is the responsibility of the prosecution to prove “proof of fault” which could also be described as a culpability or blame-worthiness. It is necessary to prove that the defendant was guilty in mind.

Causation – did they bring about the result? It may be simple but it’s important when putting together a legal case that the solicitors can be sure that the people accused were responsible for the act or omission which was caused the illegal consequence.

Concurrence – we have already discussed the guilty action, concurrence describes the need for bother the guilty mind and guilty action. Concurrence is not always needed in cases of strict liability. In principle, if the guilty action does not coincide in point of time with the guilty action then no crime has been committed.

Mens rea – this is the mental element of criminal law, it can be compared simplistically to the idea of a motive. Guilty mind does not in isolation does not make someone criminally guilty. There are typically four different kinds of Mens rea, intention, where it was planned. Knowledge, recklessness and negligence are other circumstances where someone can be described as being guilty of mind.

Intention – did they have the foresight to see the consequences and desire to act or fail to act to prevent the consequence. If they are able to prove this the person isn’t guilty. This concept is particularly important and is one of the areas most widely contested when cases reach court.

Recklessness – a type of Mens rea, it falls as being less culpable than intention or knowledge but the person still would have been able to prevent the consequence had they not been guilty.

Wilful Blindness – this is where an individual seeks to avoid liability for a crime by making themselves deliberately unaware of facts which would make them liable for the crime. This protects in situations where people make deliberate attempts to excuse themselves from liability.

Criminal Negligence - careless, inattentive or neglectful. Negligence is another type of Mens rea. To be criminally negligent the person accused is has had the foresight to see the risk which is responsible for the illegal outcome.

Ignorantia juris non excusat – a direct translation from Latin of this phrase is Ingnorance of the Law doesn’t excuse. This is one of the more easy to follow aspects of criminal law. Just because someone might not be aware of the law or some of its details that doesn’t mean they cannot be guilty.

Vicarious Liability – this means that if a group of people are collectively involved in criminal activity they are all liable for their actions carried out as the group. Typically in most modern criminal cases there isn’t a vicarious liability and someone has to be responsible to be found guilty

Corporate Viability – in the eyes of the law companies and corporations can be treated as if they were a ‘real’ individual person.

Strict Liability - in cases of strict liability the mens rea doesn’t have to be proven, the person being charged with a strict liability crime may well be found guilty and convicted even if they were unaware or ignorant of the crime.

Referring a Legal Case

1. An experienced traveler, you purchase a train ticket from Fairbanks, Alaska to Anchorage. In terms of taking trains and purchasing tickets, you have both "been there" and "done that." As you board the train for the multi hour ride which includes a meal you discover that you and your travel companion are sitting on a bench made for one hunched over a narrow table and across from another traveler and her companion. Cramped quarters were not what you were expecting. About quarter way into the journey, you learn that the track diverts since repairs are underway due to a train that crashed last week. You were not told of this when you purchased the ticket. Now the journey will proceed to another stop where you will switch from train to bus for the remainder of the trip. The trip will now take an additional 8 hours. Most of us, lawyers that we are, would likely seek some remuneration for the inconvenience of not being told a significant detail about the benefit we were getting by purchasing the train ticket. (Some would ask even if they liked traveling by bus in scenic Alaska anyway!) You surely did not get what you bargained for.

2. You buy a used last year model car from a dealer. It looks good. You test drive it on the highway from one exit to another. It drives well. You have been driving for 30 years and decide to purchase the car. A week later, you take the family to Utah and get out on the highway cruising at 60 mph. After driving 40 minutes, the car loses power steering when it stalls. You maneuver to the side of the road safely but very concerned. You turn the key, start it up again, and slowly accelerate to 55 mph. After 30 minutes, the car stalls again. By now, you are concerned for your family’s safety and getting your money back from the dealer and returning the car. The buyer did not get what he bargained for.

3. An attorney refers a case to you because:

a. She recognizes the area is outside her experience and wants the client to have the best representation possible,
b. He is in over his head and acknowledges he needs help.
c. He cannot finance an expensive trial, The attorney refers the case when:

a. She initially consults with the client and immediately recognizes another attorney with experience in that area better serves the client.

b. She waits until the 2 year statute will run and wants someone else to file.

c. The trial is a month away. Each of these scenarios represents a variety of ways a case can be "referred." The problems of the matter, especially when another lawyer handles it for 2 or more years, stay hidden in the file’s details. No one can know those details after a telephone

conversation.

So, as in the ticket purchaser and the car buyer not getting what they "bargained" for, so too are attorneys who accept case referrals blindly. When a lawyer asks me to evaluate a case, I always advise them if I can do it. If there is time to review the file, I ask them to deliver it to me. I request an initial meeting with the client. If I can help the client and take over the case, I enter into an initial fee agreement with the referring attorney. "Initial" because once I take over representation, details not given to me previously may start to unravel.

Once while ironing out the referral details I discovered the client had filed bankruptcy and the referring attorney had not applied as special counsel. Effectively there had been no representation of the trustee for over a year! Another time, with a trial pending, the opposing lawyer advised of the referring lawyer’s "verbal" stipulations to bifurcate liability and damages where the plaintiff’s craniotomy photos would have been excluded from the liability portion of the case! (A decision I would never make)

The best time to refer a case that is outside an attorney’s area of expertise or interest (outside of the money interest) is as close to the beginning as possible. It is best for the client. And the client’s interest is primary. It is not wise to hold a case until the statute of limitations or until the trial since much evidence can be permanently tainted or lost. Witnesses are harder to find, experts may be harder to get involved, and so on. If revising the referral fee agreement will get the client the absolute best result and representation then that takes precedence. The "traditions" of old need updating as much as going to the local country doctor for heart surgery no longer cuts it.

Legal Issues When Hiring Someone to Build Your Site

Given the costs associated with hiring employees, a vast majority of businesses now hire independent contractors to build and/or maintain their websites. This raises a host of legal issues.

First and foremost, it should be a requirement that the person or business developing your site agree to put everything in writing. As with any contractual situation, oral agreements are useless. Handshake agreements and oral promises simply are not enforceable in court. Sad, but true, so get it in writing!

The second issue to consider is jurisdiction. The World Wide Web is aptly titled. If your business is in Los Angles and your site designer is in Toronto, how are you going to enforce the agreement? At a minimum, you should designate the jurisdiction of any disputes as you desire, to wit, Los Angeles in this case. That being said, you need another hammer as well.

The hammer is, of course, the requirement of milestones. Milestones are simply stages of site development. At each milestone, the site designer is required to meet certain thresholds, get approval from you for the progress made and payment of an indicated amount. Milestones are critical because web designers tend to have an artistic side, which means they can take forever to accomplish a site design unless “motivated”. Milestones motivate them.

A major issue that is often missed is the assignment of copyright. Most site owners go through the following thought progression. I am the owner of the site. I am paying this person to create the site based on conversations we have had. When I pay them, I become the owner of the design including copyright of it.

While logical, this thought process is simply wrong. Under federal law, the creator of a work is the owner of the copyright unless they are the employee of a business. In this case, our site designer is an independent contractor. As a result, they maintain ownership unless you take affirmative steps to obtain it. This is handled by including a clause in the agreement that details the specific IP rights to be assigned from the designer to you. Fail to include such a clause and you could end up seeing parts or your entire site reproduced on other domains!

As you can see, there is far more to hiring a site designer than just finding a qualified individual. Think through the process, negotiate a deal, get it in writing and make sure you obtain all the intellectual property rights! Don’t use a pre-printed form!