At the law firm of Garcia Ives Nowara, we are committed to achieving positive results for our clients by doing high-quality work in a wide variety of cases in both state and federal courts. Our firm’s three experienced litigators have their own specialties, many of which overlap, allowing for collaboration that benefits our clients in more complex cases.
- Representing people whose civil rights have been violated
- Criminal defense, including white-collar and health care matters
- Civil and criminal appeals
- Obtaining compensation for people who have suffered personal injuries
- Working on behalf of whistleblowers
- Helping people who have ongoing or past employment problems
- Administrative proceedings, security clearance matters, and debarment
A challenge to a previous legal determination. An appeal is directed towards a legal power higher than the power making the challenged determination. In most states and the federal system, trial court determinations can be appealed in appeals courts, and appeals court decisions can be appealed in a supreme court.The person pursuing an appeal is called an appellant, while the person defending the lower court’s ruling is the appellee.
Appeals can be either discretionary or of right. An appeal of right is one that the higher court must hear, if the losing party demands it, while a discretionary appeal is one that the higher court may, but does not have to, consider. For example, in the federal system, there is an appeal of right from the District Court to the Court of Appeals, but appeals from the Court of Appeals to the Supreme Court are discretionary.
Appeals do not always originate from court decisions. In administrative law, people are often allowed to appeal, in court, the decisions made by executive agencies.
Administrative Law / Professional Licensure
Administrative law encompasses laws and legal principles governing the administration and regulation of government agencies (both Federal and state). Such agencies are delegated power by Congress (or in the case of a state agency, the state legislature) to act as agents for the executive. Generally, administrative agencies are created to protect a public interest rather than to vindicate private rights.
The FAPA is a remedial statute designed to ensure uniformity and openness in the procedures used by federal agencies. The Act is comprised of a comprehensive regulatory scheme governing regulations, adjudications, and rule making in general terms. The FAPA is the major source for federal administrative agency law, while state agencies’ administration and regulation are governed by comparable state acts.
Criminal defense law consists of the legal protections afforded to people who have been accused of committing a crime. Law enforcement agencies and government prosecutors have extensive resources at their disposal. Without adequate protections for the accused, the balance of power within the justice system would become skewed in favor of the government. As it is, fair treatment for criminal defendants often depends as much upon the skill of their defense attorney as it does the substantive protections contained in the law.
Defense attorneys know how to use constitutional guarantees to the advantage of their clients. For example, all criminal prosecutions are based upon evidence gathered by the government. This may include physical items of evidence, witness statements, confessions, drug and alcohol tests, and so forth. The Forth Amendment to the U.S. Constitution (applicable to the states through the 14th Amendment) prohibits the police from using unreasonable searches and seizures to gather evidence. If they do, a defense attorney will ask the court to suppress that evidence so it cannot be used at trial.
The Constitution provides many more protections that apply to the field of criminal defense law. Someone who has been tried and acquitted of a crime cannot again be charged with that office, as mandated by the “double jeopardy” provision of the Fifth Amendment. The Sixth Amendment guarantees criminal defendants the right to a public trial, and in many cases, the right to have their guilt or innocence decided by a jury. It also affords the right to confront adverse witnesses, and to use the court’s subpoena power to compel the appearance of favorable witnesses.
What laws cover the alleged retaliation?
The first step in reviewing a whistleblower claim is to determine what statutes or common law actions may provide a remedy. A case may be covered under more than one whistleblower protection provision. Depending upon whom one works for and in which state one is employed, the nature and scope of whistleblower protection are varied. In addition to explicit whistleblower protection laws, employees may also be protected under traditional tort or contract for damages resulting from retaliation for whistleblowing.
The National Whistleblowers Center has released a comprehensive publication of all Federal whistleblower laws and regulations. Click here for more information on this and other NWC publications.
What is protected whistleblower activity?
The underlying purpose of whistleblower protection laws is to allow employees to stop, report, or testify about employer actions that are illegal, unhealthy, or violate specific public policies. However, one of the most hotly contested issues in whistleblower law is the exact definition of protected whistleblower activity. Some states have very narrow definitions while others have definitions that are very broad. An employee or his or her attorney should thoroughly research the state law regarding the definition for his or her state.
How long are the statutes of limitations?
One major weakness in many statutory whistleblower protection laws is the short statute of limitations for whistleblower cases. Failure to comply with a statute of limitations is one of the favorite defenses in whistleblower cases. The statute is generally considered to start from the time an employee learns that he or she will be retaliated against- not the last day of employment. Each state has its own statute of limitations for common law wrongful termination actions. Federal statutes protecting whistleblowers also have their own statutes of limitations, some as short as 30 days.
Employment law governs the rights and duties between employers and workers. Also referred to as labor law, these rules are primarily designed to keep workers safe and make sure they are treated fairly, although laws are in place to protect employers’ interests as well. Employment laws are based on federal and state constitutions, legislation, administrative rules, and court opinions. A particular employment relationship may also be governed by contract.
American labor laws trace back to public outcry against the oppressive practices of the industrial revolution. In the early 20th century, the first laws were passed to compensate injured workers, establish a minimum wage, create a standard work week, and outlaw child labor. In the 1960s and ‘70s, Congress acted to prohibit discrimination and unsafe work conditions. Current issues involve employee healthcare and equal pay for men and women.
Many of the employment disputes that result in litigation deal with “wage and hour” violations. Federal law establishes baseline rules with respect to these issues, and then states are free to pass laws providing additional protections. For example, federal law requires a minimum wage of $7.25 per hour. Several states have approved a higher minimum wage, and employers in those states must comply.
Wage and hour laws also regulate overtime pay. The federal government does not place limits on the number of hours adults may work per week, but after 40 hours time and a half must be paid. Rules exist to control the hours and working conditions for workers under age 18, with special provisions for those working in the agricultural sector. In addition, these laws require employers to post notices and keep basic payroll records.
Discrimination in the workplace is another basis for many employment law cases. The Civil Rights Act of 1964 and subsequent legislation makes it illegal to treat workers differently based on ethnicity, religious beliefs, gender, age, or disability. Hiring an attorney to pursue a discrimination claim is recommended, as detailed procedures must be followed, such as obtaining a Right-To-Sue letter from the Equal Employment Opportunity Commission (EEOC).
The fact that mishaps are fairly commonplace does not detract from the pain and confusion that can result when an accident or injury happens to you or a loved one. If you decide to take steps toward protecting your legal rights after an accident or injury, you may have a number of general questions about “personal injury” cases.
What is a “Personal Injury” Case?
“Personal injury” cases are legal disputes that arise when one person suffers harm from an accident or injury, and someone else might be legally responsible for that harm. A personal injury case can become formalized through civil court proceedings that seek to find others legally at fault through a court judgment or, as is much more common, such disputes may be resolved through informal settlement before any lawsuit is filed:
- Formal “Lawsuit” Unlike criminal cases, which are initiated by the government, a formal personal injury case typically starts when a private individual (the “plaintiff”) files a civil “complaint” against another person, business, corporation, or government agency (the “defendant”), alleging that they acted carelessly or irresponsibly in connection with an accident or injury that caused harm. This action is known as “filing a lawsuit”. Our discussion on negligence and proof is especially helpful.
- Informal Settlement In reality, most disputes over fault for an accident or injury are resolved through informal early settlement, usually among those personally involved in the dispute, their insurers, and attorneys representing both sides. A settlement commonly takes the form of negotiation, followed by a written agreement in which both sides forgo any further action (such as a lawsuit), choosing instead to resolve the matter through payment of an agreeable amount of money.
(Note: the “middle ground” between a lawsuit and an informal settlement is alternative dispute resolution procedures like mediation and arbitration.)
What is a Statute of Limitations?
Plaintiffs have a limited time in which to file a lawsuit, called a “statute of limitations.” Generally speaking, the period of time dictated by a statute of limitations begins when the plaintiff is injured or discovers the injury.
Statutes of limitations are established by state law and often vary by type of injury. For instance, the statute of limitations for injuries to an individual in Texas is two years, but five years for sex crimes and one year for libel or slander. It can vary from state to state. For more details, see FindLaw’s State Statutes of Limitations directory and Time Limits to Bring a Case: The Statute of Limitations.
Where are the Laws that Govern Personal Injury Cases?
Unlike other areas of the law that find their rules in statutes (such as penal codes in criminal cases), the development of personal injury law has taken place mostly through court decisions, and in treatises written by legal scholars. Many states have taken steps to summarize the development of personal injury law in written statutes, but for practical purposes court decisions remain the main source of the law in any legal case arising from an accident or injury.
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Various jurisdictions have enacted statutes to prevent discrimination based on a person’s race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual orientation.
The most important expansions of civil rights in the United States occurred as a result of the enactment of the Thirteenth and Fourteenth Amendments of the U.S. Constitution. The Thirteenth Amendment abolished slavery throughout the United States. See U.S. Const. amend. XIII. In response to the Thirteenth Amendment, various states enacted “black codes” that were intended to limit the civil rights of the newly free slaves. In 1868 the Fourteenth Amendment countered these “black codes” by stating that no state “shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States… [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws.” See U.S. Const. amend. XIV. Section Five of the Fourteenth Amendment gave Congress the power by section five of the Fourteenth Amendment to pass any laws needed to enforce the Amendment.
During the reconstruction era that followed, Congress enacted numerous civil rights statutes. Many of these are still in force today and protect individuals from discrimination and from the deprivation of their civil rights. Section 1981 of Title 42 (Equal Rights Under the Law) protects individuals from discrimination based on race in making and enforcing contracts, participating in lawsuits, and giving evidence. See 42 U.S.C. § 1981. Other statutes, derived from acts of the reconstruction era, that protect against discrimination include: Civil Action for Deprivation of Rights (See 42 U.S.C. § 1983);Citizens (See 18 U.S.C. § 241); Deprivation of Rights Under Color of Law, (See 18 U.S.C. § 242); The Jurisdictional Statue for Civil Rights Cases (See 28 U.S.C. § 1443); and Peonage Abolished (See 42 U.S.C. § 1994).