What is a Lien?

A lien is a legal claim that a person or business can make against a property to ensure that they get paid for work they've done or materials they have supplied. Liens are often

Latin Legal Terms: In Loco Parentis

In loco parentis is a Latin term that means "in the place of a parent." It's a legal doctrine that applies to situations where an individual or entity assumes the responsibilities and functions of a parent.

Understanding Hearsay

Objection. Hearsay. If you've been involved in a contested trial (or watched a legal show on TV), you have probably heard this word come up. But what exactly

What Are  Process Servers and What Do They Do?

If you have ever been involved in a legal proceeding, you likely have heard the term "process server" mentioned. Process servers play an important role in the legal system,

What Is a Burden of Proof?

There are more than 100 million civil and criminal cases filed every year. And while a vast majority never go to court, approximately 400,000 do.

During these trials, evidence is essential–it’s how someone retains innocence or is proven guilty. But who is responsible for evidence?

 

The burden of proof often lies with the plaintiff, but depending on the situation, the defendant may also have to provide evidence.

 

Defining the Burden of Proof

In short, the burden of proof is evidence. However, depending on the case, there are different amounts of the required evidence. Nonetheless, all burdens of proof have two things in common: burden of production and burden of persuasion.

 

The Burden of Production

The part of the proof is the manifestation of evidence. The plaintiff must present sufficient amounts of evidence for the case against the defendant.

There is no case without some evidence to support the plaintiff’s claim. The defendant must explain why the evidence does not prove their guilt.

 

The Burden of Persuasion

In the United States, the defendant is innocent until proven guilty.

Therefore, when the plaintiff presents evidence, they must also persuade the judge and jury that the evidence is sufficient to support their claim against the defendant.

This persuasive step is crucial in proving guilt as it’s the only way to indict someone of a crime or misdemeanor.

Additionally, the defendant must explain how the evidence doesn’t indict them and how they are innocent of the claim.

 

Standards of Proof in the United States

When the plaintiff presents their evidence and attempts to persuade the judge and jury, there are multiple standards they must meet depending on their case and the court’s level.

There are three primary standards for most cases: preponderance of evidence, clear and convincing evidence, and beyond a reasonable doubt.

 

#1: Preponderance of Evidence

Most often used in family court, “preponderance of evidence” is when the plaintiff presents substantial evidence to prove that their argument is more accurate than the defendant.

“Preponderance of evidence” produces enough evidence to show another person is responsible for damages.

 

#2: Clear and Convincing Evidence

This next standard requires that all the evidence presented in a trial is highly and sustainably valid. “Clear and convincing evidence” is necessary for greater believability in civil cases.

 

#3: Beyond a Reasonable Doubt

The most well-known standard is “beyond a reasonable doubt.” This standard is used strictly in criminal cases because it requires the production of proof and persuasion to be so great that there is no room for doubt in the jury’s collective mind.

This standard is challenging because it puts the legal burden on the plaintiff to provide credible evidence and explanation to show that the defendant committed a crime.

 

How Can We Help You?

Whether you are involved in a civil case or criminal trial, you must have a team ready to fight by your side. The burden of proof rests on you as the plaintiff. When emotionally invested in a case, it’s hard to find sufficient evidence on your own.

The attorneys at Hickey and Hull Law Partners are ready to help you build a case to prove your claim or defense. Contact us today for a free case review.

What is Probate?

In Arkansas, you need to be 18 or older to write your own will. Unfortunately, many people wait until they’re nearly retired to write their will. So, if a person passes away unexpectedly before they write their will, all their possessions must go through probate, which lengthens and complicates the process. If you are 18 or older, it’s in your best interest to write a will immediately. In an untimely death, your will makes the process easier for your family and the state.

Definition

Probate is a complicated process in which a person’s possessions go through the court to determine who receives what. If the person who passed away has a will, the probate process is more straightforward. Since the probate court judge can follow the guidelines and assist the Executor in completing necessary tasks. However, the court makes the final decisions on a deceased person’s possessions without a will.

What Goes Through Probate Court?

Regardless of the presence of a will, most cases go through a probate proceeding. However, the process is simplified when a will from the deceased person details the allocations and beneficiaries. Even though there are ways to avoid probate court (see next section), nearly every case spends some time here because of the following:

  • When a beneficiary dies before the giver
  • Non-titled property–this covers household items like appliances, furniture, and clothing from the decedent’s estate that may not have any paperwork with it.

  • Partner-owned investment property–when the deceased shares property with another landlord (joint tenancy), the process goes through court.
  • Sole property ownership–when only the deceased own the property but do not clarify who receives the deeds after their death.

Although issues like these need to go through probate proceedings, you can save your family a lot of time by establishing a trust and will for your retirement accounts, bank or brokerage accounts, and any notes on how you would like to transfer property and remaining assets.

How Do You Avoid Probate?

It is not easy to avoid probate–it requires forethought, proactivity, and planning ahead of time to make your death and the processes that follow simpler for your family. Your family can avoid probate court with the following:

  • Items with a beneficiary–personal property avoid probate when a name is listed next to an item.
  • Anything listed in a trust–with a living trust, any items you place in there with the beneficiaries name avoid going to court.

  • POD or TOD–Pay on Death or Transfer on Death means that any finances transfer to the listed beneficiary.
  • Jointly Titled Property–any property between two people on the title goes to the current living owner (typically the surviving spouse).

When you take proactive steps to plan for your loved ones’ lives after you pass, you make the grieving and legal process much easier on them.

Conclusion

Dealing with the death of a loved one is tricky. It becomes more challenging when you must deal with the finances and paperwork that follow. However, when you use a trust and will, you simplify the process for everyone. If you are ready to write a trust and will or need a personal representative, we can help you. Contact us today to schedule an appointment.

 

What is Mens Rea?

Mens rea is Latin for “guilty mind.” It looks at the mental element of crimes committed by an individual. In other words, what was the perpetrator’s state of mind before and during the criminal act? Understanding the mental element of committed crimes is essential for accurate processing.

The Five Types of Mens Rea

Today, there are five types of mens rea. In the United States, the five types are general intent, specific intent, negligence, recklessness, and strict liability.

General Intent

General intent means the defendant had the intent to commit a criminal act from the very beginning. When the court uses this type, the prosecution must prove that the crime’s situation shows general intent. In other words, there must be evidence that clearly shows the defendant had the intent to commit a crime, whether or not he was successful. This category of mens rea is often associated with rape, battery, kidnapping, and other violent crimes.

Specific Intent

Specific intent means the defendant committed a crime with a particular end goal or result in mind. In other words, there was a desired result from the crime committed. For this criminal intent to stick, the prosecution must prove that the criminal acted in such a way that he knew something illegal would occur from his actions. For example, if an individual gets into an argument with another person and then pulls out a gun and shoots, this offender knows that he fired with the specific intent to kill or maim. Crimes involving specific intent include burglary, assault, and first-degree premeditated murder.

Negligence

Negligence is a type of mental state in criminal law where premeditation nor forethought aren't necessary; instead, the individual acts without regard for the well-being of others. Such ignorance of the law can result in the death of innocent parties or the offender himself. For negligence to make sense, the court must show that the individual behaved in such a way that put others at risk of death or injury without critically thinking about the effect of his actions.

Recklessness

Recklessness is similar to negligence. However, there is one main difference. Whereas negligence can argue that the offender was unaware of the law regarding specific actions and behaviors, recklessness is the direct disobedience of laws. The offender knows not to commit such acts because it leads to a prohibited result or is of a forbidden nature.

Strict Liability

The court almost exclusively reserves strict liability for crimes committed against minors. Crimes with strict liability do not require mens rea since there are other laws protecting children. If an offender takes such actions, it will qualify as a criminal act. A strict liability crime includes statutory rape, selling alcohol to minors, and bigamy.

Conclusion

There are many ways to look at criminal intent. One of the most powerful ways to defend or prosecute is to consider the defendant's mental state. The mental element of a crime is just as important as the physical act. Knowing why someone committed a crime or whether there was an intent can answer many questions.

If you need court representation, look no further than Hickey & Hull Law Partners. With decades of experience, we are ready to represent you in all types of criminal cases.