Frequently Asked Questions
Getting Started & Using a Legal Document Assistant
How much do you charge?
I need your help. How do I get
started?
Can you help me file and serve
my papers?
What is the difference between
the documents I get from you and those prepared by an attorney?
What is a Legal Document Assistant
(LDA)?
What is the difference between
a Paralegal and an LDA?
Can an LDA or Paralegal tell
me how to proceed with my case?
Business
Entities & Non-Profit Organizations
Should I incorporate my business?
What are the benefits of forming
a Limited Liability Company (LLC)?
Do I need a formal, written
Partnership Agreement?
My business is losing money.
Can I form a non-profit organization?
Civil
Litigation & Small Claims
How do I initiate a civil lawsuit?
In what court should I file
the complaint?
What is the statute of limitations?
What are “DOE” defendants
and should I include them in my complaint?
What is a cause of action?
What are elements?
I’ve been sued as a defendant
in a civil lawsuit. What now?
Using a Legal Document Assistant
How much do you charge?
Our affordable, flexible Fee
Schedule ensures that you receive (and pay for) only the services
you actually need. Many of our services include published legal information
to help guide you through the process — often straight from the
same legal practice guides the attorneys subscribe to — at no additional
cost to you. You can also manage your costs effectively through “unbundled
legal services” (also called “limited scope representation”),
utilizing the services of an attorney for advice and strategy, and hiring
a legal document assistant (LDA) to carry out your legal tasks. Click
here for more information about unbundled services (will open a
new window).
I need your help. How do
I get started?
Once you’ve decided to handle your own legal matter with Red Sky
Legal’s assistance, we will have you sign a contract and, for
most services, complete a questionnaire. We use the Legal
Document Assistant (LDA) contract required under California law,
which was written by the Department of Consumer Affairs, and is for
your protection. The questionnaire is specific to the type of document
or service you are requesting, and contains a series of questions that
will enable us to accurately and completely prepare your legal document.
You will receive a draft of your completed legal document, and our fees
include up to two revisions at no additional charge.
We encourage all new clients to thoroughly review the LDA
Client’s Bill of Rights and the Legal
Document Assistant Code of Ethics and Professional Responsibility
before beginning any relationship with a professional legal document
preparer.
Can you help me file and
serve my papers?
Yes! Our attorney service can economically file and serve documents
anywhere in California. For rush documents, fax filing is available
for an additional fee. Courier services and digital document management
are also offered.
What is the difference
between the documents I get from you and those prepared by an attorney?
The short answer is: Nothing! Red Sky Legal utilizes the latest legal
technology, including the same software packages used in most law firms.
Now for the longer answer: When you retain the services
of an LDA, you are essentially acting as your own attorney; you must
know what you want your documents to say. We cannot draft legal arguments
for you or give you specific legal advice. We have many self-help legal
reference materials available in our office to guide you, and our services
include legal information from published resources to help you make
your own choices. You may also visit our Legal
Research page for our collectiton of self-help legal articles and
links to free online legal reference materials. If you still have questions,
we are happy to refer you to an attorney.
What is a Legal Document
Assistant (LDA)?
A Legal Document Assistant, or LDA, is an experienced professional who
is authorized under California law to prepare legal documents for consumers
at the direction of the client. An LDA is not an attorney and cannot
provide legal advice or represent a client in court. The Legal Document
Assistant fills a critical role in our judicial system, enabling individuals
to represent themselves in their own legal matters, with the help of
a qualified professional legal document preparer to ensure their papers
are properly prepared, filed and served.
LDAs are required by law to be registered and file a bond
of $25,000 in the county where they have their principal place of business.
R.S. Ervine, Inc. DBA Red Sky Legal is bonded and registered in San
Diego County.
What is the difference
between a Paralegal and an LDA?
Legal Document Assistants are sometimes incorrectly referred to as “Independent
Paralegals.” California law restricts the term “Paralegal”
to those who are employed by an attorney. Paralegal services may
only be provided to a licensed attorney who directs the work and compensates
the paralegal; and it is illegal for a paralegal to advertise to
the general public, or to provide services and accept compensation from
anyone who is not an active member of the California State Bar. A registered
and bonded LDA is specifically authorized to provide legal information,
resources and document preparation services to any consumer who is representing
himself or herself in a legal matter.
Unlike LDAs, paralegals are not required to be registered or licensed
by any governmental authority, and do not post a bond for the consumer’s
protection (because they are not permitted to work for consumers). Many
LDAs have a paralegal background, and some, like us, provide paralegal
services to attorneys while also providing LDA services directly to
members of the public. While LDAs are not required to participate in
continuing legal education, state law mandates that all paralegals maintain
a minimum number of continuing education credits in both general law
and ethics. Red Sky Legal’s professionals maintain compliance
with all laws pertaining to both the LDA and paralegal professions.
For more information, please see California Business &
Professions Code §
6400 and §
6450, or visit the Alliance
of Legal Document Assistant Professionals (will open a new window).
Can an LDA or Paralegal
tell me how to proceed with my case?
While legal document assistants are prohibited from giving legal
advice to clients, they are permitted to provide published legal
information to assist consumers in directing their own legal matters.
An LDA (or any non-attorney) is prohibited from suggesting a course
of action based on the facts of the client’s specific situation,
which would be the unauthorized
practice of law (UPL). Many LDAs maintain an extensive collection
of self-help legal reference materials
to assist consumers in making their own decisions, or direct clients
to the public
law library for further information.
Paralegals are not permitted to provide any services or offer any advice
to members of the public. Paralegal
services may only be provided under contract with a licensed attorney.
Back to Top
Business Entities & Non-Profit Organizations
Should I incorporate my
business?
The primary advantages of operating as a corporation are liability protection
and potential tax savings. Like any important decision, choosing whether
to incorporate involves weighing
the pros and cons, and should only be done after careful research
and consultation with a legal or tax professional.
Once incorporated, the business assets of the corporation are separated
from the owner’s personal finances. As a result, the owner’s
personal assets generally can be shielded from creditors of the business.
To maintain this legal separation (and avoid “piercing
the corporate veil”), the corporation must observe certain
formalities, including:
- Keeping corporate assets and personal assets separate (no commingling
of funds)
- Holding shareholder and director meetings at least annually
- Maintaining a corporate record book including bylaws, minutes of
shareholder and director meetings, and shareholder records
- Filing annual information statements with the Secretary of State
- Filing a separate tax return for the corporation
Many people are concerned about “double taxation” of income,
but you should do your own research, and compare
the features of the C-corporation and S-corporation. The double
taxation results when a C-corporation has profit at the end of the year,
and that profit is then distributed to the shareholders. That profit
is taxed to the corporation, at the corporate tax rate, and then the
dividends are taxable income to the shareholders on their personal tax
returns. However, the corporate tax rate is typically much lower than
the individual tax rate that a sole-proprietor will pay on a 1040 Schedule
C, and a competent accountant can help the corporation minimize double-taxation
(or eliminate it completely).
For example, a small C-corporation will likely have a shareholder who
is also an employee. Paychecks to the shareholder/employee are, of course,
tax deductible to the business. To the shareholder/employee, they are
taxable income (as would be the case with a paycheck from any employer).
A bonus could be paid to the shareholder/employee in order to lower
the corporation’s taxable profit, eliminating the double-taxation.
These calculations should be performed by your accountant or tax advisor,
but shifting income from the corporation to the shareholder/employee
(or vice versa, depending on which has the lower tax rate) can be a
great way to lower your overall tax liability. In addition, there are
certain advantages that are only available with a C-Corporation, such
as full tax-deductibility of medical benefits for a shareholder/employee.
The S-Corporation avoids the double-taxation by offering a tax structure
similar to the Limited Liability Company (LLC, which is not an option
for businesses that are required to hold a license, certification or
registration). A corporation with 75 or fewer shareholders can elect
to be treated as an S-Corporation. If the corporation is profitable,
the shareholder/employee must draw a reasonable salary (and pay employment
tax on it), but then all remaining corporate profits flow through to
the shareholder’s personal tax return (thereby avoiding the FICA
tax on the portion of profits that is taken as a dividend).
Before deciding to incorporate, you should seek legal and tax advice
on what type of ownership best suits your business. An experienced attorney
and tax advisor can help you decide which form of ownership is best
for your business. For the do-it-yourselfers, we highly recommend “Own
Your Own Corporation” by Garrett Sutton, Esq. (part of the
Rich Dad series).
What are the benefits
of forming a Limited Liability Company (LLC)?
A Limited Liability Company, or LLC, is a hybrid business structure,
combining the pass-through taxation of a partnership or sole proprietorship
with the limited liability of a corporation. The term “limited
liability” means that LLC owners (called “members”)
are only liable for debts of the business to the extent of their investment
in the company — provided the LLC is properly established and managed
according to the operating agreement. Click
here for some of the advantages and disadvantages to consider when
deciding whether to form a Limited Liability Company.
Do I need a formal, written
Partnership Agreement?
The law does not require that a partnership
be created or governed by a written partnership agreement. In fact,
under the Uniform
Partnership Act, simply the association of two or more persons to
carry on as co-owners a business for profit forms a partnership. However,
without a formal
partnership agreement, your business arrangement will be governed
by state law, which may or may not be the most favorable to you or your
business. Creating a formal partnership agreement enables the business
owners to establish the expectations and obligations of each partner,
define each partner’s role in managing the business, determine
the apportionment of investments and profits, and lay the groundwork
so you avoid potential misunderstandings in the future.
My business is losing
money. Can I form a non-profit organization?
No. For-profit businesses and non-profit
organizations have some similarities, for example both can be organized
as corporations, hold assets and transact business as an entity separate
from the owners or employees. However, there are key differences between
the two and they have nothing to do with how much money you make. Non-profit
(“nonprofit” or “not-for-profit”) organizations
are typically created for charitable, educational or religious purposes.
Most non-profit organizations are exempt from federal and state income
tax, but must follow strict rules requiring that the funds raised or
earned by the organization are spent for charitable, educational or
religious purposes, and do not directly benefit an individual or a for-profit
company.
Back to Top
Civil Litigation & Small Claims
How do I initiate a civil
lawsuit?
The lawsuit is commenced when a plaintiff files a complaint against
one or more defendants with the court. The person filing the complaint
is the “plaintiff.” The party whose actions are being complained
about is the “defendant.” In California state courts, the
plaintiff must also file a civil case cover sheet and have a summons
issued. Once the complaint has been filed and summons issued, the plaintiff
must then have the documents served on the defendant(s). You cannot
serve the papers yourself. Generally, the defendant must be served within
60 days, and a proof of service must be filed with the court. We urge
you to use a registered process server to serve your papers.
In what court should I
file the complaint?
There are two factors to consider in determining the proper court to
hear your case. “Jurisdiction” refers to a court‘s
power to hear and determine a particular lawsuit. To have jurisdiction,
a court must have authority over the subject matter of the case and
the court must also be able to exercise control over the defendant (or
the property involved must be located in an area under the court‘s
control). “Venue” is the geographic area or the county in
which the court is located. The proper venue is determined based on
the defendant‘s residence or business location, the county where
a contract was entered into or should have been performed, or where
the injury or damage occurred. Many counties have local court rules
that specify which branch (court location) is the appropriate location
to file a complaint based on the type of claim being made and/or the
defendant‘s zip code. For example, click
here for the San Diego Superior Court‘s Civil “Venue Table.”
What is the statute of
limitations?
A statute of limitations is a law that specifies a timeframe within
which a lawsuit must be commenced. Generally, after that statutory time
period lapses, the plaintiff loses the right to file a lawsuit (unless
a specific legal exception is applicable). Each type of civil lawsuit
has a different statute of limitations. For example, an action for breach
of a written contract must be filed within 4 years and an action for
breach of an oral contract must be commenced within 2 years. Click
here for more information about the statutes of limitations applicable
to cases filed in California. Generally, the clock starts ticking
on the date of the incident that is the subject of the lawsuit, or the
date the plaintiff knew or reasonably should have known of the incident
What are “DOE”
defendants and should I include them in my complaint?
“DOE” defendants essentially serve as “place holders”
in a civil complaint when the plaintiff does not know their true names.
The plaintiff can later amend the complaint to substitute the actual,
true names of defendants for the “DOE” defendants after
those names have been ascertained. If it is even remotely possible someone
whose identity you don't yet know has contributed to your damages, you
should name “DOE” defendants in your complaint. This enables
you to ensure you complaint is timely filed (before the statute of limitations
expires), even if you have not yet discovered all of the individuals
or organizations that contributed to the incident that is the subject
of your lawsuit.
What is a
cause of action?
The “cause of action,” is the set of facts upon which the
plaintiff basis his or her request for relief. “Relief,”
or “remedy,” is the assistance or benefit that the party
seeks from the court. Some common causes of action include: Breach of
Contract, Fraud, Negligence, Premises Liability, etc.
What are elements?
An element is a point that a plaintiff must prove in order to win a
particular type of case. Different causes of action each have their
own elements that must be proven, and to win the plaintiff must prove
every element. For example, to prevail on a Negligence claim
(cause of action), the plaintiff must prove: 1) Duty (the defendant's
legal obligation to do something); 2) Breach (the defendant breached
that duty); 3) Causation (the defendant's breach has harmed the plaintiff);
and 4) Damages sustained by the plaintiff as a result of the breach.
I’ve
been sued as a defendant in a civil lawsuit. What now?
Unless extended by court order or stipulation, a defendant must file
a response within 30 days of the date she or he was served with the
complaint. The defendant may file an answer, or may attack the complaint
(by filing a demurrer, motion to strike, motion for judgment on the
pleadings, or other challenge to the complaint). Some challenges can
be filed concurrently with an answer, others are filed instead of an
answer.
For more information about how courts operate, please
click
here.
Back to Top
|
