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Commonly Asked Legal Questions

What is a Will?

A Will is a document that provides the manner in which a person’s property will be distributed when he dies. A person who dies after writing a Will is said to have died testate.

Who may make a Will?

In Alabama, the maker of a Will must be: (1) be at least 18 years old; (2) of sound mind; and (3) free from improper influences by other people.

How do I make a Will?

A Will must meet certain requirements set by the State to be considered valid. The Will must be written, signed by the maker, and witnessed by two (2) people in the manner required by the law.

May I dispose of my property in any way I desire by making a Will?
Almost, but not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. For example, a married person cannot completely exclude the other spouse from sharing in the estate. A lawyer can best explain all of the limitations.

How do I know if I need to write a will?

Any amount of property which you own constitutes your estate.  Generally, the size of your estate and your family circumstances determine whether you need a Will. An estate does not have to be any particular size to justify a Will. If you have young children, or property which you would like to assure will be given to certain people, then you should consider writing a Will.

When do I need to write a will?

A Will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.

Who may draft a will?

There is no requirement that a person consult a lawyer before drafting their own will. However, the proper drafting of a Will can be a delicate operation, and it is best to consult someone who has experience. A lawyer can make sure that your Will is legal, and that your property will be given to the people that you intended. A lawyer can also help construct a Will so that your family saves money in administering the estate, and reduces their taxes.

Is a Will expensive?

A lawyer will usually charge for a Will according to the time spent in preparing the Will. If you have a small estate and a simple plan for distributing your property, then your Will should cost less than one for a large, complex estate with several people receiving property.

May a Will be changed once it is written?

A person may change his Will as often as he desires. However, the changes must meet the same requirements listed above for the original Will. No change should be made without first consulting the person who drafted the Will.

How long is my will “good”?

A properly written and executed Will is “good” until it is changed or revoked. Writing a second Will usually revokes the first Will.  However, if there is a change in your estate or your family makeup, you may consider changing your existing Will or writing a new Will.  For example, if you sell your house you may need to change your Will to reflect the change in your estate.

What should I do with my Will once it is written?

Once you have written your Will, you should keep it in a safe place, such as a safety deposit box at a bank. You should also let your family know where the Will is so that they can find it when you die.

Chapter 7 Bankruptcy: Is It a Consideration?

Unfortunately, at times, people are faced with the unfortunate situation of having more debt than they can handle. Contrary to credit card company assertions, most people do not intentionally and willingly overspend so they cannot meet their financial obligations. Generally, unexpected expenses, like medical emergencies, loss of jobs, wrecks with uninsured motorists, etc., cause sudden unexpected financial obligations that we cannot reasonably meet.

Sometimes, debt consolidation services can decrease your monthly payments, but that generally only works with regular creditors, not with huge medical expenses or the loss of a job.

Have I Been a Victim of Employment Discrimination?

Discrimination in the workplace can take on many forms. If a co-employee is treated better or worse because of the color of their skin, their race, their creed, their national origin, their religious beliefs, their age or their disability, this can be actionable discrimination. Not all forms of discrimination are actionable, which means that there is a legal remedy for the harm done.

Generally, in Alabama, the "at-will" rule applies to most employment situations. Unless you have a written contract of employment to the contrary, you can be terminated for a good reason, a bad reason or for no reason at all. Of course, that includes all acts of discipline up to and including termination. It is against the law for a protected person to be treated adversely in the terms and conditions of their employment. Federal and state laws determine who is protected.

Workers' Compensation

Alabama's Workers’ Compensation Act provides injured workers certain limited compensation and medical benefits without the injured worker having to show that the employer was at fault in causing the worker's injuries. There is presumption that all employees are subject to the Workers’ Compensation Act. However, there are certain exemptions, including domestic servants, farm laborers, casual employees and employers who regularly employ less than five employees.

Am I Being Wrongfully Denied Overtime Pay?

Under the Fair Labor Standards Act, overtime pay is required premium pay for all work in excess of 40 hours per week. As a general rule, all employees covered under the FLSA must be paid at the rate of time and one-half their regular rate of pay for all hours worked in excess of 40 in a workweek. However, temporary employees may be exempt from the general requirements stated above if they meet certain criteria.

What Are Some Common Violations?

Non-governmental employers cannot avoid paying overtime by giving comp time to employees. For example, if you are a non-governmental employee and work 42 hours in one week, your employer must pay you two hours overtime and cannot substitute two or more hours of time off following the week in which the overtime is earned.

How Do I Know if a Loved One Is Being Abused in a Nursing Home?

Approximately 1.6 million Americans live in nursing homes. Ironically, Alabama pays its nursing homes some of the highest Medicaid rates in the country, yet we have some of the worst records in preventing accidents, food sanitation and staffing levels. Alabama has 235 nursing homes, with a population of approximately 23,000 individuals. Currently, the state has 1,200 complaints against nursing homes, which are backlogged because the state does not have the resources to investigate all of the complaints. Alabama spends considerably less on inspections than other southeastern states.

Have I Been Wrongfully Discharged After Getting Hurt on the Job?

20 years ago, the Alabama Legislature gave a gift to the injured workers of this state in the form of a cause of action for retaliatory discharge. That cause of action now codified at §25-5-11.1 (Code of Alabama) and states: "No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant Subdivision (c) (4) of §25-5-11."

What Makes a Good Case: the Crowley Model

Michael Crowley worked for the Heil Company for 15 months before sustaining an injury to his back. His job was to prepare a garbage body chassis for painting and then to paint it with a sprayer. Crowley was chosen to prepare and paint garbage trucks to be displayed at industrial truck shows. Prior to his on-the-job injury, the only disciplinary action in his personnel file was for taking too much time on a break on one occasion. Crowley received every raise for which he was eligible and was, according to Crowley, liked by his supervisors.

The Heil Company's attitude towards Crowley was vastly different when he was released to return to work on light duty. Crowley's job duty upon returning to work was to answer a telephone. He was placed in the conference room where a telephone sat but was not connected to an outside line. Thus, the telephone never rang. Crowley was allowed two breaks per day but was not allowed to read or do anything other than to sit in the office to answer a phone that never rang. Crowley was not allowed to sit or rest on the couch located in the office without a written note from his physician. Crowley and another employee testified as to the mental distress this isolation had on them. After several weeks, Crowley returned to full duty but was given a job that was more physically difficult than his previous job. A former supervisor testified on Crowley's behalf that other Heil managers thought Crowley would quit if the work became too difficult and strenuous. Also, following his release to full duty, Crowley's disciplinary infractions began to increase. The testifying supervisor was told by the Heil Company to find a way to "write-up" Crowley so that Heil could suspend or terminate him. Crowley was subsequently fired for these "new" disciplinary infractions. A DeKalb County jury awarded Crowley $50,000.00 in compensatory damages and $500,000.00 in punitive damages.

At the end of that case, we polled the jury as to how they viewed the facts as they were presented in that case. This old-fashioned jury focused on Heil's conduct more so than on the conduct of Crowley. They also told us that they would have awarded more in punitive damages but they did not because they feared that Crowley having too much money would actually harm him and it would be less likely to be reversed on appeal. Given that, and the result, we evaluated all future retaliatory discharge cases in light of Crowley.

What Did We Learn From This Case That Was Important to the Jury?

1. That your client has to be thought of as a good employee before his on-the-job injury and a bad employee afterwards.

  • Discipline – obviously, if discipline increases after an on-the-job injury for infractions that were not disciplined before; then this is a strong indicator of retaliatory conduct.
  • Awards – Look for employment awards before the injury. I had one client who received a safety award which included cash and a weekend trip to the company's condo in Boca Raton, Florida. He subsequently had an on-the-job injury and was terminated before getting to use the company condo, ostensibly for unsafe behavior. I did not get to give that to the jury, as the case settled before trial.
  • Raises – Generally in the manufacturing sector, employees progress through a series of raises before they "top out.” If your client has done this, then he has met the company's expectations and can only be thought of logically as a good employee.
  • Performance evaluations – Performance evaluations (which are rare in manufacturing cases) can be very helpful if they show strong employee attributes before an on-the-job injury and poor performance after a claim.

2. Co-employees. Co-employees can be invaluable to making a case for retaliatory discharge as well as proving a pattern and practice of retaliatory conduct which can help prove your underlying case, as well as warrant and amplify punitive damages.

  • Should state that your client was a good worker and that they witnessed no behavior warranting discipline.
  • If you could find other employees who were hurt on-the-job, made a claim for benefits, were harassed and subsequently terminated, then this besides your client can be the most crucial evidence in your case.
  • As we were lucky enough to find a former supervisor who provided direct evidence of retaliatory behavior on the part of Heil, in the Crowley case. Of course, that supervisor was no longer employed by Heil and he was painted by defense counsel as a poor performer with a grudge.

3. Other witnesses.

  • Logically, you would believe that juries would view spouses as having a "dog in the hunt,” but spouses and other family members, if they are good witnesses, are viewed with a degree of anonymity. In our case, Crowley's spouse was able to testify as to the difficulties the loss of the job brought upon the family, we well as the personal difficulties Crowley faced by not being able to provide for his family.
  • Can be very helpful if your client is a strong churchgoer. 

4. The Company's bottom line.

  • It all comes down to money ­– You must be able to show that the company was motivated by financial concerns over the rights and safety of its employees. Of course, worker's compensation premiums go up with the number of claims. Therefore, an employer has a strong motivation to keep claims as low as possible.
  • Light duty – Even though it was obvious that Heil is using its "light duty" as a form of torture, Heil testified that it was motivated by the bottom line as it was cheaper to bring employees back to "light duty" as opposed to having them out recuperating, drawing worker's compensation benefits. 

5. Temporal Nexus. The time between return to work and the termination.

  • The closer in time between when an employee attempts to return to work and the retaliatory conduct begins, the stronger the case you have. In Culbreath v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.. 1992), the Court found a prima facie case of retaliatory discharge when an injured employee attempted to return to work, reported to a supervisor, the supervisor disappeared into another office to talk to his supervisor, and when he returned he told Culbreath that Woodham Plumbing no longer had a position for him. Contra, Hayden v. Bruno's, Inc., 588 So.2d 874 (Ala. 1991). (Employee was terminated immediately upon returning to work pursuant to Bruno's one-year leave of absence policy and a poor performance evaluation).

6. Company handbooks - Golden sources of information.

  • Company handbooks while not generally being able to be construed as contracts because of disclaimers contain what the jury views as the company's policies and procedures with regards to handling employment matters. If those policies and procedures are violated by the company to the detriment of the employee, then this is good solid evidence of retaliation.
  • Also, handbooks generally contain boastful information about the size of the company, including locations of other plants and corporate headquarters, and generally contain language to the effect that everybody should work together as a team to keep costs down and profits high. 

7. Mental anguish - Mental anguish damages can be most compelling in retaliatory discharge cases.

  • Mental anguish can be a huge factor in evaluating and presenting these cases to a jury. Generally, a terminated employee loses health insurance and is unable to seek the care of a counselor or psychiatrist following a termination. If that employee truly believes that he or she was terminated through no fault of his own, he or she will suffer mental distress, especially in light of being a provider for a family.
  • Personal property – Generally, leisure items, such as four-wheelers, hunting equipment, boats, etc., are sold first. Next, items of deep personal value, such as rings and jewelry and wedding gifts follow. Juries identify with the loss of these items on a personal level and if you have got the liability hurdle cleared, mental anguish damages can be elevated to a great degree if you have this kind of evidence.
  • Changes in personality – The injured employee generally becomes depressed, anxious, isolated and embarrassed by now being able to provide as he or she once did. Spouses, family members and the clergy can be excellent witnesses in this regard. A word of caution. In the Crowley case, we did let our client convince us to depose a preacher who had told our client the true reason why he was terminated. Under oath, this preacher told a totally different story from what he told to our client. In the deposition, we found out he also had a side business that was mainly supported by Crowley's former employer, the Heil Company.