in other words
Ask a Lawyer
By Steven Leskin
Q~
I have intolerable pain in my
back. I have shooting pain down into
my legs. Pain killers do not work. My
doctor says that it is not operable. I work
with the pain because I have to support
myself. Can I apply for Social Security
Disability?
A~
Social Security’s definition of
“disabled” is a medically verifiable im-
pairment that prevents you from work-
ing for one year or longer. In your case,
I presume that you have a herniated disk
in your spine. I assume also that you
have had an MRI which shows the dam-
aged vertebrae. The MRI would consti-
tute a medically verifiable impairment.
However, the issue in your case is that
you continue to work. The impairment
must prevent you from working for one
year or longer.
I assume that the pain is a con-
stant distraction and that you are not able
to focus or concentrate on your work,
that you need to move around to accom-
modate the pain, that you have difficult
working with co-workers or customers
when you are in pain, that there are side
effects to your medications, that your
ability to stand, sit and lift are all im-
paired.
Despite these limitations, it is
very difficult to obtain Social Security
Disability while you are working. You
will need to be out of work, or able to
prove that you cannot work, for one
year. If you are presently working, that is
very difficult to do. And, even if you quit
your work and apply, there is no guar-
antee that you will prevail and receive
benefits.
There are several things you
should do before making a decision
about giving up your work and pursing
Social Security benefits. You should be-
come familiar with the Social Security
website. You can find it at www.SSA.
gov. Secondly, you should go to your
local Social Security office so they can
pull up your Social Security account,
and discuss your options. And, finally,
contact an attorney experienced in this
area of law to help with your planning.
Q~
Jury?
What is the purpose of a Grand
A~
The purpose of a Grand Jury is
to determine if there is enough evidence
june5
2014
to charge a person with a crime. But, it’s
not that simple.
A person is charged with a crime
when the District Attorney files a “Com-
plaint” or an “Information.” These are
both called “charging instruments.” The
District Attorney must have a factual
basis for filing the charging instrument.
The factual basis can come in the form
of a sworn affidavit, a police report, or a
grand jury indictment.
If a police officer witnesses a
crime, the officer will complete a police
report. The officer is the witness. His
report will (or should) contain all of the
necessary elements to prove the crime.
The district attorney can sign a charging
instrument based on the police officers
direct observations.
However, suppose the police of-
ficer does not witness the actual crime, as
in a drug smuggling operation or a crime
involving financial fraud. If this is the
case, the District Attorney can impanel a
grand jury and subpoena witnesses. The
various witnesses will testify about what
they know. The grand jury can then issue
a grand jury indictment.
The Grand Jury will only hear
evidence to prove that the crime hap-
pened. Its concern is whether there is
enough evidence to charge the defendant
with the crime. The Grand Jury will not
hear possible legal defenses to the crime.
If there are legal defenses, they can be
raised later at trial.
Q~
sis”?
What is meant by “stare deci-
A~
Stare decisis derives from Lat-
in and roughly means “do not disturb
what has not been disturbed” Well, close
enough. I’ve never been good at Latin,
but that’s what Wikipedia says.
Regardless of the translation,
Stare Decisis is the basis for the Ameri-
can legal systems in most jurisdictions.
It’s the principle that a prior ruling by
a court governs the outcome of future
court rulings. It’s the principal that is
supposed to give rationality and predict-
ability to the legal system.
When lawyers argue cases, after
the facts have been established, they will
research past appellate court decisions in
their jurisdiction. The appellate courts
are courts of record. They do not receive
evidence. But, they issue written deci-
sions. Those written decisions form the
basis of Stare Decisis.
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Lawyers will attempt to find cas-
es which most similarly match the facts
in their present case, and argue, if its a
favorable case, that the appellate court
decision should control the current trial
court outcome. The opposing attorney
will attempt to argue away the differ-
ences by finding significant differences
in the fact situation in the appellate court
decision. If the facts in the prior case
match, then the trial court judge is bound
to apply the decision of the prior case to
the current case.
In practice, Stare Decisis works
pretty well. However, in certain areas
of law, there may be conflicting appeals
cases or a lot of appeals cases to choose
from. For example, there are many,
many cases dealing with the appropriate
amount of spousal support to award in
a divorce case. While the general prin-
7
ciples are well supported by consistency,
how these get applied in specific cases
varies significantly. It is the job of the at-
torney to find the best case for his client
and argue that this is the case which the
trial court should follow
Steven Leskin is an attorney in North
Portland. He has been in practice since
1992. You can submit a question to him
through www.ModestMeansLawOffice.
com or through the Vernonia’s Voice
website.
Vernonia’s Voice is
published on the
1st and 3rd Thursday.
Our next issue will be
out June 19th.
Next Vernonia Area
Chamber of Commerce Meeting
will be held at
West Oregon Electric
652 Rose Avenue
Tuesday, June 11 at 6:30 PM