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Monday, 6 April 2020

Lawyers and Stress: Causes, Effects, and Incredible Stress Management Techniques for Lawyers



Lawyers and Stress;Causes, Effects, and Incredible Stress Management Techniques for Lawyers
 “Stress happens when you try to control your life experiences. Relax and remember the only real control you have is over yourself.” Anonymous
In today’s society stress is an epidemic.  Lawyers are termed to be one of the most stressed professions in the world. Since I’m a lawyer, I can tell you this, the lawyer’s stress begins from when a person is pursuing his/her law degree (LL.B), stress follows him/her in Law school and finally in his/her career.

The questions which might come to your mind right now are why lawyers are so stressed? How does stress affect lawyers and their careers? Is there an effective stress management technique for lawyers?



The good news is you will find the answer to all your questions concerning lawyers and stress here.

This post is for lawyers, other professionals and anyone who wants to know how to deal with stress and how to learn to relax. It explains what stress, causes, and effects of stress is to lawyers, when and how stress can be bad for lawyers and their career and it provides effective stress management techniques for lawyers.

What is Stress?

This post will be useless if it will explain the causes of stress, effects of stress and how lawyers can manage stress without telling you what stress is.

Stress is a negative mental or emotional response resulting from undesirable or challenging circumstances.

Why Lawyers Are So Stressed?

“The major cause of stress is the inability of people to discover their real nature. Discover your gifts, follow them and you will never feel stressed.” Anonymous

Stress to lawyers are mainly caused by two things. First is the profession pressure which includes competition, deadline, work overload, areas of practice, adversarial system, etc. and second is the lawyer’s personal behaviors which include perfectionism, workaholic traits, emotional unawareness, race, etc. 
Causes of stress to lawyers

The Following are the Causes of Stress to Lawyers Due To Profession Pressure.

Competition

Currently, competition in the legal profession is overwhelming. There are thousands of lawyers graduates from university and law school each year.
Number of Lawyers/attorneys/solicitors/ in UK and USA
 


According to the UK’s Solicitors Regulatory Authority (SRA) there were 184,736 solicitors on the roll in September 2017 in the UK. From that number 142,515 solicitors were practicing.

From that number you can clearly see that the massive number of lawyers in the UK is practicing the thing which entails a high level of completion in the legal realm.

Further, according to the American Bar Association's National Lawyer Population Survey there were 1,338,678 lawyers in the USA during 2018 and the percentage of change in the number of lawyers in the USA from 2008-2018 (ten years) was 15.2%.

From that data you can clearly see that the number of lawyers in the USA is increasing astonishingly.

In estimation, there are Over 10,000 law firms in the UK and the USA.

You may ask yourself where does the competition in the legal profession come from and how does it causes stress to the lawyer?

Here is an answer basing on my experience. Most lawyers establish their law firm in major
cities for the aim of attracting major clients. This causes floods of the law firm in these cities and solidifies competition.

Thus the lawyer’s struggles to take off and become flamboyant, the struggle to establish his law firm brand and reputation, the struggles to attract major clients may lead to stress.



Area of Practice

When I say the area of practice, I mean the subject or category of law in which the lawyer is highly interested and knowledgeable hence practices it. It may Be Litigation, Corporate Law, Insurance Law, Family Law,  Banking Law, Human Rights Law, International law, etc.

As a lawyer you cannot be the master of all subjects so a good lawyer focuses on the few areas of law which matters most to him.

The truth is some areas of law are more complex and competitive than others, this may lead to so much stress to a lawyer when he tries to stand out to be the best his area(s) of practice.

Adversarial Legal System

There are two common legal systems in the world. One is the adversarial legal system and the second is the inquisitorial legal system.

Common law countries use the adversarial legal system to determine facts in the adjudication process. With this system parties are adverse, they are competing against each other and Judge/magistrates act as referees.  

In adversarial system winner wins all and loser lose all. It is hardly a competition-based system.


Adversarial system creates enmity between parties, it has a lot of external pressures from clients, stakeholders, government, etc. and it has complex legal formalities. A lawyer has to do tremendous work to survive within this system thing which may lead to stress.

·         Read  Why ADR is better that Adversarial System

Timeline Pressure and Work Overload

Most of legal activities are connected with the timeline/deadline. It may be dealing with clients, preparing legal documents, filing a case to court, etc. and most of the timelines in the legal realm are set by law/statute.

Further, sometimes a lawyer may face cases with urgent nature. Here the lawyer has to make sure he does the best to rescue the situation.

Failure to meet a timeline has a significant impact. It’s may indicate the lawyer’s irresponsibility; it may lead to the case dismissal or any other inconveniences which may lead to stress.

Lawyers are very busy. They have a lot of important work to do at once. When you take this busyness plus the timeline pressure as highlighted above is equal to stress.  Mathematically you can say work overload + timeline pressure = stress.

The Following Are the Causes of Stress to Lawyer Due To Lawyer’s Personal Behaviors

Workaholic Behavior

Do you know this popular phrase German machine never cease? Some lawyers are German machines. They tend to work too much. They have this workaholic nature.

 They want to be in every activity. Lawyer like this is very likely to be stressful taking into account he has to face all professional pressure explained above.


Perfectionism

“Trying to be a perfectionist brings increased stress and hinders performance.” T. Whitmore
No one is perfect and I think nothing is perfect too. A lawyer with perfectionism traits is likely to be stressed because sometimes in carrier things do not go as he wishes.

Emotional Instability

Some people are so emotionally soft. When I say soft I mean they can easily be emotionally affected with external factors. Lawyers with emotional softness are likely to be most stressed because the legal profession involves a lot of struggles, failures, pressure, and knockdowns.

Effects of Stress To Lawyers

Depression and Anxiety

Depression and anxiety is a huge effect of stress.

By definition, a depressed person experiences recurring negative thoughts that trigger negative emotions like sadness, anger, and guilt.

An anxious person experiences chronic negative thoughts that cause negative emotions, such as fear.

Depression and anxiety is often at least partly caused by an inability to manage stress effectively.

Drugs and Alcohol

Many people use drugs and alcohol to eliminate stress. This is a very bad approach. Stressed lawyers also fall under this trap.
Effects of stress to lawyers-drugs and alcohol
Alcohol is not the answer, it only makes you forget questions



Isolation

I think you may wonder it is lawyer’s isolation which leads to stress or it is lawyer’s stresses which lead to isolation? Hahaha! My answer is whatever! But the fact is isolation and stress are two sides of the same coin.

Effective Stress Management Techniques for Lawyers

The best way to manage stress as a lawyer is to avoid it. Don’t let stress to enter into your mind. Because of it much easier to avoid stress than to remove it.

The big issue then is how can you avoid it? Or generally, how can you manage it? Relax and continue reading

Control Your Thoughts




Effective Stress Management Techniques for Lawyers-thoughts control
“The greatest weapon against stress is our ability to choose one thought over another.” William James
I will prefer to call it ‘emotional intelligence’. This is the most effective way of avoiding or managing stress. Stress cannot enter or control you without your permission. To avoid or to control stress requires emotional intelligence.

What is an emotional Intelligence?

When I say emotional intelligence I refer to an art or science of controlling your emotions through your thoughts. This will enable you to be emotionally aware and stable.

Don’t easily be emotionally affected by external factors. Choose only positive thoughts to dominate your brain. When you face stressful thoughts immediately replace them with positive thoughts.

That may be simple but not easy. However, it is very possible. You may consider reading a wonderful book titled As a man thinketh so he is by James Allen for more insights.

Improve Your Working Environment

Good Working environment is a must when it comes to avoiding or managing stress. It includes the outside and inside the physical surroundings of your office. Make sure you are surrounded by things that inspire and motivate you. This will trigger the positive thoughts in your mind and increase work morale.

Further, the working environment goes up to your colleagues and associates. Make sure you have the right time. Associate yourself with positive people.

“The fact is you are an average of three people you spend the most time with”

The wrong people can be stressful.

Do yourself a favor, be in a good working environment and choose the right association to enjoy a stress-free life.


How lawyer can improve working environment
Don’t stress. Do your best. Forget the rest




Delegate and Automate
Why and How lawyer can automate and delegate


Do you know Pareto Principle? Alternately known as 80/20 rule. This principle simply states that 80% of the results are due to 20% of efforts.

As the lawyer your goal should not be to work hard but to work smart or to work hard smart or to smartly work hard. When I say working smart I mean work to archive more with fewer efforts. 

How can you archive that? It is through delegation and automation.


Make sure you delegate every task/activity which is not necessarily being done with you. Things like conducting legal research, drafting legal documents, filing documents, and any other minor tasks. To effectively delegate make sure you have a winning team.

Hey Mr. Lawyer! do you know a computer? It may help you when it comes to automation. Let it automatically help you with things like taking notes, setting appointments, case calendars and reminders, emails and so much more. With the current trends of science and technology automation made easier.

With Delegation and automation you will effectively manage stress because they will help you to get space to focus on major things with major impact. They will also reduce workaholic behavior and gives you more control over your career.

Exercise, Relax and Sleep Well

I can’t emphasize enough the importance of ‘taking a break’ in managing stress.  

Exercise makes your body active, relax relieve you from world distractions, sleeping well will take you to another world. Do you want more? I think it is enough.
Why lawyers should Exercise, Relax and sleep well



Conclusion
Uuh! It was a a very long journey but I hope you find this post useful! Before you leave please spread the knowledge by sharing this post.  Say no to stress.

For further query please comment below.


Thursday, 2 April 2020

Employer-Employee Relationship: Difference between Contract of Service and Contract for Service [Ultimate explanation]

Employer-Employee Relationship: Difference between Contract of Service and Contract for Service [Ultimate explanation]


If you are facing challenges in a distinction between contract of service and contract for service keep reading. Here you will also find why it is important in the eyes of law to determine whether a person is an employee or an independent contractor. Also, you will find techniques that the courts use in determining whether a certain worker is an employee or an independent contractor.

Relationship between Employer-Employee Relationship and Contracts of employment

While Contract of Service is the relationship between the employer and employee Contract for Service involves the relationship between the employer and an independent contractor.




Two things are important here, first is the importance of knowing who the employer is and who the employee is. And the second is the techniques that the courts use in determining whether a certain worker is an employee or not.

The issue to be determined is whether a person hired may be considered to be the employee or an independent contractor or some other legal status. In law, there is a difference between the employee and an independent contractor.

The techniques used tend to eliminate certain workers from the definition of the employee is that, a worker who is not the employee is called an independent contractor. Where a worker is not regarded as the employee, a person to whom services are being rendered is known as a principal, not the employer.

Why is it important to determine whether a particular person is an employee or an independent contractor?


Why is it important to determine whether a particular person is an employee or an independent contractor?


This is necessary because of the distinction between the employee and independent the contractor has numerous legal implications as follows:

1. The Purpose of Tax Law Compliance

The employee has an obligation to pay tax (pay as you earn). Both employer and employee may be liable if the employee does not pay tax.

2. The Purpose of Social Security Benefits

A duty to pay social security contributions to a social security fund arise where there is employer-employee relationship.

In social security law, it is an offense for the employer not to deduct from the employee’s salary his share of contributions to social security funds.

It is also an offense for the employer not to remit the said contributions to social security funds.

3. Labor Law Compliance

The employer has many obligations towards his employee, e.g. to pay him wages.

It is an offense for the employer to pay his employee the wage which is below the statutory minimum wage.

Law requires the employer to compensate in monetary terms the employee who suffers accident or contracts an occupational disease in the employment environment.

All labor statutes apply only where there is an employer-employee relationship. Where the worker is an independent contractor, there is no liability on part of the employer.

4.  Constitutional Claims

Claims based on discrimination, violation of the right to work, sexual harassment, e.t.c, are based in the Constitutional and they can be claimed from the employer if there is an employer-employee relationship.

5. Intellectual Property Claims

These include copyright, patents, trade & service marks, e.t.c.

The general principle is that whenever the employee, during the course of employment, creates a work which qualifies for protection under intellectual property laws, protection goes to the employer.

It is therefore imperative to know whether such a worker was the employee or not.

Different Between a Contract of Service and Contract for Service


In distinguishing between a contract of service and contract for service, the courts have been using some tests in order to determine whether a particular worker is an employee or an independent contractor. They include:
  1. Control test
  2. Organizational test
  3. Multiple test

different between Contract of service and contract for service



Control Test

This test looks at the extent of control which the employer has over the employee.

In the case of GOULD V MINISTER OF NATIONAL INSURANCE AND ANOTHER (1951) ALL E.R 368 principles which help to determine the control of the employer to the employee were laid down and they are sometimes known as the indicators of a contract of service:
  • the employer’s power of selection of his employee;
  • the method of payment chosen to compensate the worker; is it by time or piece work?
  • the employer’s right to control the method of doing the work;
  • the employer’s right of suspension or dismissal.

Lord Denning (MR) as he then was, noted in the case of STEVENSON JORDANS AND HARRISON LTD V MACDONALD AND EVANS [1952] 1 TLR 101, that 
it raises the troublesome question of the distinction between a contract of service and a contract for service.
The test usually applied is whether the employer has the right to control the manner of doing work.

In a contract for service, the master can order or require what is to be done while in the contract of service, the employer can not only order what is to be done but also how it should be done.

In the contract for service, the independent contractor is given what to do, but it is his own responsibility to decide how to do it, provided that he abides with the description and quality of the work so agreed upon by his master.

In the case of WALKER V CRYSTAL PALACE (1910) 1 KB 87; a professional footballer was held to have a contract of service with the club.

He was paid 3.50 pounds per week for annual contract, in which he was supposed to provide his playing services exclusively to Crystal Palace Football Club.

He was given detailed rules about training and under whose instructions he was supposed to be during training. He was also expected to always be available for training and matches.

The club argued that he did not have a contract of service because it was essential that in such a relationship the master should have the power to direct how work should be done.

In the case of YEWENS V NOAKES, (1881) 6 QBD 530, Bramwell, J., defined 

a servant as a person who is subjected to the command of his master as to the manner in which he should do his work.
It was argued that this definition should not be applicable to a professional footballer who was hired to display his talent and skills.


Control of the club is limited in deciding whether the player should be selected for the match or not.
The court dismissed the argument on the basis that many workmen display their own initiative, like a footballer, but were still bound by the directions of their masters.

In this case the player had agreed to follow detailed training instructions and to obey his captain’s instructions on the field. 

The Judge stated: 
“I can not doubt that the player is bound to obey any directions which the captain, as the delegate of the club, may give him during the course of the game – that is to say, any directions that is within the terms of his employment as a football player.”
It is difficult now, perhaps, to comprehend the attempts to fit a professional footballer into this concept of control.

Shortcomings of Control Test 

The problem with the control test is that, it is limited in its application especially in distinguishing an employee and a self –employed person.

In situations which lack clarity as whether a person is an employee or self – employed, the courts have insisted on apply a control test to determine the fate of the employee.

The control exercise need not be done directly.

In MOTOROLA LTD V DAVIDSON [2001] IRLR 4, an individual who was engaged by an agency to work at Motorola’s premises was dismissed by the agency at the request of the company. The level of control, even though exercised by a third party, was sufficient to establish an employment relationship between the company and the individual.

Organisational Test

In modern conditions, the application of control test has diminished due to development in production process.

An employee can be highly skilled and qualified, and was employed specifically because he has professional training and competence of a particular job.

 So, the employer is frequently unable to instruct the employee as to how the work has to be done. This has paved the way for the Organisational test.

In the case of CASSIDY V MINISTRY OF HEALTH, [1951] 2 KB 343, it was pointed out that 
there are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of the captain of a ship.
The court stated further that,
under a contract of service, a man is employed as part of the business of the employer, Whereas, under a contract for service, his work although done for the business, is not integrated to it but only accessory to it.
Thus, the organizational test is sometimes referred to as an integrational test and it is used to determine the employer-employee relationship in situations where a man is employed as part of the employer’s business and his work are done as an integral part of the business.

A good example of the situation where a person is employed under the contract of service but the employer can not exercise control as stated by the control test is in hospital cases.

In these cases the control of employees are done at the time of the selection of employees only.

At this point, the employer has to exercise due diligence in the selection of the employee, he must be satisfied with the skills of say a doctor or a nurse as it is difficult to exercise control as to how they are supposed to do their duties.

Take an example of a doctor who is to conduct an operation to a patient; there is no way in which the employer can control such an employee.

In works which require the professional know-how of the employee, the employer cannot control.

However, where a doctor is called on by the employer as a consultant, he remains to be an independent contractor despite the fact that he uses the tools and premises of the employer.

Multiple Test


The emergence of the organizational test did not automatically wither away the control test. There are situations in which the courts fail to apply either of the two tests. This has led to the formulation of another test which is multiple tests
.
According to labor law scholars, multiple test means the use of common senses. 

This is a combination of a control test and an organizational test. It is sometimes referred to as ‘economic reality’ test.  It looks at the surrounding features of the relationship between the parties.

The court is not bound by any contractual terminology or traditional common law concepts of employee or independent contractor.



The main concern is the economic realities of the relationship. The focal point is whether the worker is economically dependent on the business to which he renders services or as a matter of economic fact, he depends on the business of his own.

The economic reality test includes inquiries into whether the alleged employer has powers to hire and fire the employee, supervise services, control the employee’s schedules or employment conditions, e.t.c
In applying this test, the courts normally look into the following factors:
  • The degree of the control exerted by the alleged employer to the worker,
  • The worker’s opportunity for profit or loss resulting from the employer’s business;
  • The worker’s investment in the business,
  • The degree of skills required,
  • Permanency of the working relationship;
  • Note that none of these factors is exhaustive. The court must use the technicalities of circumstances in determining each case.


Conclusion
Generally this post covered two important aspects first is important of determining employer-employee relationship in labor law and differences between the contract of service and the contract for service. I hope you find the contents hereinabove useful. Comment below in case of any query.

A lot of people want to know this. Spread the knowledge by sharing this post. Sharing is Caring.





Monday, 23 March 2020

Plea in criminal case – meaning, types and everything you need to know

Plea in criminal case – meaning, types and everything you need to know

Plea taking is a crucial step toward criminal justice.

Black’s law dictionary defines a term plea as an accused person’s formal response of guilty, not guilty or no contest to a criminal charge.

 In any case and subject to some statutory exceptions, the plea must be personal, free, and voluntary and by a fit person. That’s the reason why the accused should be present at the trial that he may hear the case made against him and have the opportunity of answering it.



Types of plea

  1. Plea of guilty
  2. Plea of not guilty
  3. Plea of Autre Fois convict, Autre Fois acquit and pardon


What is the Plea of guilty?

In simple terms plea of guilty means a confession to the offense charged.

A plea of guilty has two aspects:
  • First of all it is a confession of facts,
  • Secondly, it is such a confession that without further evidence the court is sniffed to and indeed in all proper circumstances will and upon it and result in a conviction.

A plea of guilty must be clear and free from ambiguities that is to say it must be an unequivocal plea, a plea like “it is true”, “ l admit” “ l did Wrong”, but if someone plea that it is  “ true but…” “Did it because….” And the like this is not clear and it is full of ambiguities and so it is an equivocal plea.

 The plea of an accused should not be equivocal.

It is prudent that before accepting a plea of guilty by the accused the court must be satisfied that the accused reply is nothing but a clear admission of guilty.

The reading of a charge and calling the accused to plead is not enough, the court must make sure that the accused understands the substance of the charge and he must admit all the ingredients of the offense.

Impact of Plea of Guilt

If the accused admits the truth of the charge his admission shall be recorded as nearly as possible in the words he uses, and the magistrate should convict him and pass sentence upon or make an order against him unless there shall appear to be sufficient cause to the contrary.

     
The court records everything which the accused persons say in his own words which indicate that he has actually pleaded guilty.

It is emphasized that when accused plead guilty to charges the prosecution should be called upon to state in some details the fact constituting the offense which are recorded.

The accused should be asked if he agrees or disagrees with the fact alleged.

If he agrees and if to facts stated to support the charge, then and only then should a conviction be entered.

If the accused denies some facts stated which are essential to the charge then a plea of not guilty should be entered in substitution for the first plea then the case should go to trial.

In some instance the facts denied by the accused might not affect the validity of the charge in which case if the prosecution is willing to accept the accuser’s version of guilty will remain undisturbed  and a conviction be entered.

Plea of not guilty Meaning

This is entered where the accused denies the charge in such a term as “it is not true” “am not guilty” it is a lie,” and so on. The magistrate must record that it is a plea of not guilty.

Plea of not guilty may be necessitated by a number of factors:
  1. when the accused  do not admit the truth of the charge
  2. when the accused admits the truth of the charge but in fact, his plea  is  equivocal (ambiguity)
  3. where the accused refuses to plead

Different between Plea of guilt and plea of not guilt

 Plea of Autirefois Convict, Autirefois Acquit and Pardon

This is the kind of plea where the accused pleads that he was been acquitted or convicted or has obtained pardon in law the court should inquire whether such a plea is true or not. It is the law of the administration of criminal justice that no person shall be tried twice for the same offense arising of the same facts unless the previous conviction has been set aside or reversed.


How To Prove Plea of Autirefois Convict, Autirefois Acquit and Pardon

Previous Acquittal
This by a certificate certified copy of the acquittal order or a releaser certificate of the prison department where the accused was in remand before the acquittal and a certified copy of judgment- Local or foreign, lastly a prison discharged warrants.

Previous conviction
A certified copy of the sentence or order, or a certificate of the prison department, and lastly a certified true copy of the judgment.

Pardon
A certificate by the statehouse or home affairs ministry, or a certificate by the prison departments, or warrant of discharge.


Consequences of Failing to Ask the Accused Person to Plead To the Charge

It is the requirement of the law that after a charge has been read over to the accused person must reply. It is not complete until he has pleaded to the charge. Where no plea is taken the trial is a nullity. The omission to take a plea is an incurable irregularity.

It has further been argued that the magistrate may take a plea afresh even the accused plea had been taken on the previous day by the different magistrates.

 However, failure to take a plea afresh where the case has been postponed and the accused appeared before another magistrate is not fatal.

Moreover, failure to take a plea to the accused person is against the rule of natural justice that a man must not be condemned unheard and he cannot be asked to defend himself on an accusation of which he is not aware, that is necessary the charge to be read over and explained to the accused person.

Can a plea be withdrawn?

Yes, the court may allow an accused person to withdraw his plea at any time of the proceedings before the sentence or a final order is made. The court must record reasons for permitting the accused to withdraw his plea.

The court may allow the accused to withdraw the plea of guilty even after conviction but prior to the imposition of the sentence where facts raised in mitigation constitute denial of the offense.

The power of the court to allow withdrawal of a plea of guilty where it is unequivocal is discretionary i.e. the court can allow or disallow the withdrawal of a plea of guilty. The magistrate is required to apply his mind judicially and that is why he has to record his reasons for refusal and also for allowing the accused to change his plea.

Plea of Co-Accused

Where there are several accused persons charged jointly and some of them plead guilty, the proper procedure is to convict those who plead guilty and proceed to try the others. The issue of whether they should be sentenced straight away will depend on whether or not the prosecution intends to call them as witnesses.

Conclusion
Up to this point I’m sure you have a clear understanding of plea issues in criminal justice.
The above discussion covered on meaning and types of the plea, the consequence of not taking of plea, withdraw of the plea, and plea of not guilty.



References

Statute

Tanzania Government Printers, Criminal Procedure Act [Cap 20 R.E 2002]

Manual
Mshana, S. (N.D) Criminal Procedure Law: Training Manual for Certificate of Law, Tanzania Police Academy