• You should find out if your attorney handles jury trials. If your attorney hasn’t tried a jury trial for 10 or 20 years, you may not want him to champion your cause.
• Find out if he or she is a successful attorney. Ask what sorts of verdicts has he gotten in the last 5 to 10 years.
• Most people are unaware that attorneys are rated by an organization known as Martindale-Hubbell.

Lawsuits are serious and oftentimes life-changing endeavors. A little research, prior to hiring an attorney, may be critical to your success.

In Smith v. City of Jackson the United States Supreme Court was asked to decide whether the Age Discrimination in Employment Act (ADEA) authorizes such “disparate impact” suits against employers. The ADEA serves to protect employees who are forty years of age and older from discrimination based on their age. The disparate impact claim had long-ago been recognized under Title VII of the Civil Rights Act, which prohibits discrimination based on an individual’s status as relates to race, gender, religion or national origin. However, until the Smith opinion, the Court had not determined whether such “disparate impact” claims were allowed under the ADEA.

At issue in Smith was a plan by the City of Jackson, Mississippi, to attract and retain qualified employees by bringing the starting salaries of police officers up to regional averages. The City’s plan was to provide proportionately greater raises to those officers who had less than five years of tenure, as compared to their former pay, than those with more seniority. The officers contended that the plan violated the ADEA because while some officers over the age of forty had less than five years of service, most of the older officers had more. They claimed that the City deliberately discriminated against them because of their age, and that they were adversely affected as a result of the manner in which the salary-increase plan was implemented.

Ultimately the Court concluded that a disparate impact claim could be recognized under ADEA. However, the Court also ruled that the City’s decision to grant a larger raise to lower ranking employees for the stated purpose of bringing the force’s salaries in line with regional standards was a decision based on a reasonable factor other than age. The Court stated that while there may have been other reasonable ways for the City to attain its goal, the method used by the City was not unreasonable, and therefore not in violation of the newly recognized disparate impact claim under the ADEA.

The overall effect of the Supreme Court’s reading of the ADEA so as to allow disparate impact claims is not yet known. Potentially however, the effect on the nation’s employers could be quite great. Before the Smith opinion, an employee over the age of forty needed to prove that their company had intended to discriminate against them based on their age. The newly recognized disparate impact standard is considerably lower, and may allow employees to more easily assert age-based discrimination claims against their employers.

Given this newly recognized claim, both employees and employers alike should make every attempt to understand their respective rights and responsibilities. If you would like more information concerning the implications of this decision on you or your business, please contact any of the attorneys in our office.

1. The nature, extent and duration of injury;
2. Reasonable expenses of medical treatment;
3. Loss of earnings;
4. Pain and suffering; and Loss of enjoyment of life.

The goal in our civil justice system is to attempt to make the injured party whole. The jury must then determine what is fair and adequate compensation for the injured party.

Have you given proper instructions regarding your medical treatment if you are unable to tell medical providers what you want? If you have not, others may make the decision for you. You may not be given the chance to live how you want, or you may be kept alive with artificial means of which you did not approve.

What is a living will? What is a durable power of attorney? Please read on to learn the answers to these important questions.

Q: What is a living will in comparison to what I know of as a “last will?” A: The common term “will” leads many people to believe these are similar documents. A “last will” is a declaration of how you want your assets to be distributed. Otherwise stated, it deals with property. In comparison, a living will tells others how you want to be treated if and when you are too ill to direct your own care.

Q: What can I put in my living will? A: There are standard living will forms that are broadly worded. They give you the option of checking off one of the following categories: (1) no life-sustaining treatment, (2) treatment for restoration, (3) treat unless permanently unconscious, or (4) maximum treatment. There is also a portion of the document where you can “check off” whether you want artificial nutrition and hydration.

Although these forms are valid in the eyes of the law, they can clearly lead to confusion. We recommend that you have more specific wording so your intent is clear. For example, consider specifying procedures which you would, or would not, want if you become incapable to direct your own care. In your living will you could specify whether or not you want CPR, feeding tubes, pain killers, to be put on a respirator or even different types of surgery.

You can even specify a time line for when certain steps in health care no longer need to be taken. For example, you could put in your living will that you do not want resuscitation if you’ve been in a coma for more than six months.

The wording, to avoid unnecessary confusion, needs to be clear. Therefore, we suggest you seek professional advice in preparation of this document, including legal, medical and/or spiritual advice.

Q: How does a “living will” differ from a “durable power of attorney?” A: Both documents are referred to as “Advanced Health Care Directives.” With a living will you are declaring your desires for health care for situations usually involving terminal illness or some medical condition that leaves you comatose or in a vegetative state.

However, a durable power of attorney is a document that is more flexible than a living will. By creating, and signing a durable power of attorney, you are appointing an agent to carry out your medical decisions in accordance with a set of directions that you create.

Q: What are the benefits of a living will compared to a durable power of attorney? A: A living will is a direct declaration from you regarding what type of medical care you want in certain situations where you are unable to convey what you want. A durable power of attorney can also give directions of what you want, but by signing that document, you are declaring that you have named a trusted person to make your medical choices. In essence, the durable power of attorney enables another person to “fill in the blanks” if your intent is not clear from a set of directions.

Q: If I sign a living will or durable power of attorney, how long are the documents valid? A: Both documents will remain effective until your death or until you revoke the document, meaning you declare it void.

If you appoint a spouse through your durable power of attorney, and your marriage dissolves or is annulled, those circumstances create an “automatic revocation” of the durable power of attorney document. In addition, in the original document you can name an alternate agent if your primary agent is unable or unwilling to carry out your wishes.

Q: Are there any requirements to create a valid living will or durable power of attorney? A: South Dakota law mandates that the person creating the document be a competent adult, and that you have two witness signatures to your signature.

A separate person, called a Notary Public, may also acknowledge your signature and the signatures of the two witnesses by signing and sealing the document, all of which is done with the witnesses under oath. Most of the attorneys and staff at Beardsley, Jensen and Von Wald are registered notaries with the state of South Dakota.

It is always a good idea to consult with an attorney when creating these types of documents, to ensure their validity. A majority of the time, the question of validity of a document arises when it’s too late to rectify the situation.

Q: When will my medical care providers start applying the directions from my living will? A: Pursuant to South Dakota law, a living will becomes operative when your attending physician and one other physician determine you are in a terminal condition and are no longer able to make decisions regarding your health care. Once that decision is made, your living will applies and your health care providers have the duty to follow the directions given in your living will.

Q: Are there instances when a living will can be “thrown out?” A: A living will can be found invalid if it’s not executed properly pursuant to state law, or if it’s shown that you signed the document without proper mental capacity to understand what you were signing, or if you were forced into signing the document.

You have a right to receive the care you want. In addition, you also have a right to say no to certain treatment. Hopefully you will always be able to declare what you want. Unfortunately, this may not always be the case. The attorneys at Beardsley, Jensen and Von Wald are ready to help you prepare your living will or durable power of attorney and to ensure that the document you create is legally sound.

The majority of the time injured workers are able to seek medical care and return to work with relatively little inconvenience and no lost time. However, if your injuries are such that you are not able to return to work or if you think you are not being treated fairly, you should contact a lawyer to have them explain to you your rights. Many times worker’s compensation attorneys will happily talk to you on the phone at no charge and explain to you your rights. Further, worker’s compensation attorneys typically represent injured attorneys with contingent fee agreements, meaning you do not have to pay any attorney fees unless you recover money from the insurance company.

There are many rules that apply to worker’s compensation claims. Those rules are easy to access and read at the South Dakota Department of Labor and Regulation website. However, sometimes the plain meaning of a rule as written does not adequately explain how that rule is interpreted and applied by the South Dakota Supreme Court and Department of Labor. If you find yourself in this situation, talk to a lawyer to protect yourself and your family, you will be glad you did.