Delaware Business Lawyer Blog

It’s very easy to form an LLC in Delaware. The first thing you have to do is decide on your company’s name. Whatever name you choose must contain the words “limited liability company” or the abbreviation “LLC.” You’re allowed to include in the name any of the following words: “Company," "Association," "Club," "Foundation," "Fund," "Institute," "Society," "Union," "Syndicate," "Limited" or "Trust,”or you can use an abbreviation for any of the words.

Once you’ve chosen your name, you have the right to reserve it so that nobody else takes the name before you can get your documents filed with the State. To reserve the name, you need to file an application with the Delaware Secretary of State’s office. Upon receipt of the application, the Secretary of State will check to see if the name is available, and assuming it is, will reserve the name for you for 120 days. You have the right to renew the name reservation for additional periods of 120 days.

When you’re ready, the next step is to file in the Secretary of State’s office a document called “certificate of formation.” The certificate of formation can be a very simple document, and at a minimum it has to state the name of the LLC, the name and address of your LLC’s registered agent and the address of your LLC’s registered office.

The date your LLC is created is the date the certificate of formation is filed in the Secretary of State’s office.

Although the formation of an LLC is rather simple, the next step is to create an operating agreement that governs the conduct of the business, and explains the rights of each of the partners. The operating agreement is extremely important, and should always be prepared by an experienced attorney.

When we think about filing a lawsuit to collect a debt, enforce a non-compete agreement, resolve disputes between partners, etc., we all know there’s a statute of limitations requiring that lawsuits get filed within a certain period of time. But there are numerous other Court imposed deadlines that must be met.

For example, once your lawsuit is filed, a summons and complaint have to be served upon the individual or company you’re suing. Usually, service is made by the Sheriff’s office. However, if the defendant has not been served within 120 days after your lawsuit was filed, the case will be dismissed.

Once the defendant is served, he has 20 days within which to file an Answer to The Complaint. Failure to file an Answer by this deadline can result in the entry of a judgment in favor of the plaintiff.

Another rule has to do with keeping the case moving once it’s filed. Let’s say the lawsuit is filed, some discovery is taken, and then no other documents are filed with the Court for 6 months. Even if the attorneys are having discussions and are exchanging letters, the rule provides that if nothing has actually been filed with the Court for 6 months, the clerk of the Court will send out a letter warning that if no action is taken within the next 30 days, the case will be dismissed “for want of prosecution.”

If one of the parties files a motion with the Court, it will be scheduled to be heard on a certain date. If the other party wishes to oppose the motion, a written response must be filed no later than 3 days before the motion is heard.

Once a case is assigned to a judge, a Scheduling Order is issued. This Order establishes deadlines for the identification of expert witnesses, the date by which discovery must be completed, due dates for status reports to the judge, and more.

The rules provide for extensions of time granted by the judge, and attorneys frequently agree to extensions when needed. However, severe consequences can occur when time deadlines are ignored.

In my last article, I explained some basics about a short sale in Delaware. Here, I will list some of the steps that are followed in a short sale.

#1 - contact an experienced attorney who will guide you through the entire transaction all the way to the day of the closing.

#2 - list your property with a real estate agent. It’s best to find an agent who has done short sales before.

#3 - The real estate agent finds a buyer who is prepared to pay the fair market value for your home

#4 - your attorney should become involved with you and your real estate agent in the negotiations with the buyer, and your attorney should prepare the agreement of sale

#5 - your attorney will then contact your lender and arrange to submit all the documentation they require to consider approving a short sale. This documentation includes the agreement of sale, a draft HUD-1 settlement statement, and more.

#6 - before your mortgage company approves the request for a short sale, they will want proof that you can’t afford to pay the “cash due from seller” at closing.

When a mortgage company approves a short sale, they sometimes try to get you to sign documents that are not in your best interest. It is important that you have your attorney review each and every document before you sign it.

We’ve all been reading about the declining value of homes and short sales, but what exactly is a short sale? Let’s assume you bought your home 10 years ago for $250,000. You put 10% down and got a mortgage for $225,000. Now you’re trying to sell your home, and your real estate agent tells you that the most you could get for your home is $199,000. The problem with this is that even assuming you got an interest rate of 5% when you bought your home, you still owe your mortgage company over $206,000. When you add on $15,000 in closing costs for such things as the real estate commission and transfer tax, in order to sell your home you’d have to come up with over $20,000 in cash at the closing.

One solution could be a short sale. Using the example above, a short sale means you sell your home to a buyer for $199,000, and your mortgage company agrees to accept less than the $206,0000 you owe so that you won’t have to come up with the cash at closing.

This is the first in a series of articles about short sales. As we will see in future articles, short sales can be complicated, and you should get the help of an experienced attorney to handle it for you.

As a Delaware medical malpractice attorney, I have seen an incredible number of cases involving injury caused by a misdiagnosis. These cases usually fall within 1 of 3 categories: (1) incorrect diagnosis, failure to diagnose, and (3) delayed diagnosis. Here are some examples.

Restless leg syndrome in children. This is a neurological disorder. It causes unpleasant sensations in the legs and an uncontrollable urge to move when at rest in an effort to relieve these feelings. Most people with RLS have difficulty falling asleep and staying asleep and if left untreated, RLS causes exhaustion and daytime fatigue. Unfortunately, RLS is sometimes misdiagnosed in children as growing pains or attention deficit disorder.

Vocal Chord Dysfunction. This is a sudden, abnormal narrowing of the vocal cords which causes obstruction of the airflow. This results in a noise that sounds like wheezing. Although a simple test is all that’s needed, VCD is often misdiagnosed as asthma.

A family was awarded $4.3 million in a medical malpractice case for their baby. The parents were worried when their newborn baby had large bruises on her body. Told by the doctors not to worry, the parents’ fears worsened when the baby’s skin turned yellow. It turns out that the baby’s liver showed signs of scarring and a blood clot formed in her brain. Although simple tests would have easily led to the discovery of a virus, the doctors ignore the symptoms and did not order the tests. As a result, the child has severe vision problems and permanent cirrhosis of the liver. Parts of her brain were also damaged.

Another jury awarded a woman $5 million because hospital doctors incorrectly diagnosed her with a urinary tract infection and muscle strain and failed to diagnose what was really wrong, a ruptured diaphragm. When the correct diagnosis was finally made, she had to have 1/3 of her stomach had to be removed, and she had to undergo numerous surgeries. A correct interpretation of her X-rays would have led to a correct diagnosis.

A woman who lost the use of one her arms was awarded $8.5 million. She had developed a rash on her arm, and so she went to the doctor. The doctor assumed that she was a drug addict looking for a way to obtain drugs, and so he told her to get an over-the-counter medication for her rash. It turned out that what she had was a flesh eating bacteria.

A jury awarded $3 million to the family of a man who was originally diagnosed with a hiatial hernia after he complained of chest pain and trouble swallowing. The trouble is that although hiatial hernias are supposed to be diagnosed. using an upper GI or endoscopy, his diagnosis was made using a CT scan. What he actually had was a perforated esophagus. Due to the delay in diagnosis, he became weakened and died of cardiac arrest during surgery to repair the tear.

Approximately 100,000 people dies every year because of medical errors. If you or a loved one have been injured due to misdiagnosis, contact a Delaware medical malpractice lawyer to discuss your rights.

In my last article, I explained that the concept of informed consent is more than just signing a piece of paper. It's a communication process. The right to informed consent is based on the policy that every individual has the right to determine what’s done to his own body. Therefore, if a doctor fails to give the patient the appropriate information that’s needed to make an informed decision about whether to have a medical procedure, that’s a violation of the doctor’s duty to obtain informed consent.

Let’s assume the following facts. A patient isn’t properly informed of the risks of a procedure, which means there was a breach of the doctor’s duty. The doctor performed the procedure properly, but the injury occurred anyway due to the normal risks associated with the procedure. Without more, however, these facts are not enough to win a medical malpractice case. There’s one more thing the patient has to prove - that the patient would not have undergone the procedure if he had been properly informed of the risks. The reason for this additional proof is that if a patient would have gone forward with the procedure after being properly informed of the risks, then the fact that the doctor fails to obtain informed consent had nothing to do with the injury. Put another way, the patient has to prove that he would have decided differently if he had been properly informed, and without this proof, there’s no casual connection between the failure to disclose and the injury.

If you believe that you or a loved one has been injured due to medical malpractice, call a Delaware medical malpractice lawyer to discuss your rights.

As a Delaware medical malpractice lawyer, when I file a lawsuit against a doctor or a hospital, one of the defenses that’s raised is “the patient signed an informed consent form.” But when the smoke raised by the defense clears, the fact remains that no matter what the patient agreed to by signing the form, one thing that’s not on the form is the patient’s agreement that the doctor can perform a medical procedure carelessly.

The important thing to remember is that informed consent is more than simply getting a patient to sign a written consent form. Instead, it’s a process of communication between a patient and the doctor that results in the patient understanding several things:
1. The nature and purpose of the proposed procedure or treatment,
2. The risks and benefits of the procedure or treatment,
3. The alternatives to the procedure or treatment,
4. The risks and benefits of not receiving or undergoing the treatment or procedure

During this communication process, the patient should have an opportunity to ask questions. Once the patient has all of this information, he can make an informed decision to proceed with or refuse the treatment or procedure. Many patients feel intimidated when talking to their doctor. Imagine how much better it would be if the doctor did not rush through his explanation, and if he told you that you are participating in a decision, not simply signing a consent form.

If you have a question about a possible medical malpractice case, contact a Delaware medical medical malpractice lawyer.

Let’s face it. People fall and get hurt. But if you want to hold someone else accountable, it’s important to contact a Delaware slip and fall attorney. Most people think if they fall down and see something on the ground near where they fell, that’s all they need to prove when they go to Court. It’s actually much more complicated than that.

Let’s consider some of the arguments the property owner will make in court. Here’s a short list of what we hear in slip and fall cases:
1. The accident was the customer’s fault.
2. There wasn’t anything dangerous or defective on the property.
3. If there was something dangerous or defective, the owner didn’t know that it existed.
4. The owner knew about the dangerous condition, and he took reasonable steps to warn his customers.
5. Even if the owner didn’t put up a warning, the customer should have discovered the dangerous condition.

There are things you can do to assist your Delaware slip and fall attorney.

Make sure you write down what the weather conditions were at the time you fell, even if you fell indoors.

Set aside and save the clothing and shoes you were wearing

If you have diabetes, tell your slip & fall attorney. The defense will find out and will most likely say your low blood sugar caused you to lose your balance and fall

Take pictures of the area where you fell

If you know what caused you to fall, such as food on a supermarket floor, take it with you.

If you’ve been injured in a slip and fall accident, contact a Delaware slip and fall attorney for a free consultation.