May 6, 2017

Last Will & Testament

To grasp the significance of a Last Will & Testament (Will), you need to understand what happens to your property after you die. Upon your death you no longer “own” anything, but, of course, all the things you owned at the time still exist. The creates an entity called an “estate” that owns all your stuff.

It is useful to think of an estate as a small business.The first procedure that needs to happen after someone passes is for the Probate Court to appoint someone to act as the boss of the small business called the estate. This person was traditionally called the Executor, but now in many states the boss is called the Personal Representative (PR).

The PR doesn’t own the property in the estate, but he or she controls it and is responsible for safeguarding it. Additionally, the PR will have to complete a lot of Probate Court forms. such as an inventory and an accounting. The PR must deal with any bills presented to the estate and may even have to litigate the merits of the creditor’s claim for payment.

One issue that a PR has to resolve is what property belongs in the estate. The deceased may have only been one of two or more owners of a particular item of property. Ownership of an item of personal property that has no written title can be contested. And the deceased may have been the legal titleholder of an automobile or piece of real estate, but someone else may assert equitable title to the property.

Family members often take possession of items in the home of the deceased and the PR may have to take legal action to get possession of them for the estate.

Generally, the PR who is appointed by the Probate Court is the person who is nominated in the Will of the deceased. If no Will is filed with the Probate Court, the closest family member who requests the appointment is chosen.

The estate remains open until the limited time period for submission of creditors’ claims has run and all legal and tax issues have been resolved. The remaining assets in the estate are divided among the heirs of the deceased as set-forth in the Will or as designated by the applicable state laws. The final accounting paperwork and closing forms are completed and filed with the Probate Court and if all is done to the Court’s satisfaction an order is issued by the Court declaring the estate closed.

May 5, 2017

Wrecks

Whenever two or more motorized vehicles collide, there is often damage to at least one of the vehicles and at least one or more of the people who were located inside the vehicles. Some folks call these incidents, automobile accidents, wrecks, collisions, or just accidents. I prefer wreck or collision because the word accident implies that nothing could have been done to prevent the mishap.

Insurance companies want you to believe that many collisions are indeed accidents- that no one was at-fault in causing them. But I disagree. Having practiced law for over 30 years, I have found that someone is negligent in causing the collision in virtually every wreck. The wrongful driver may not admit it, but they made some type of error of judgment which directly caused the wreck

May 2, 2017

Discovery

In any litigation the parties have the right to conduct discovery. However, in family court in South Carolina the Court has to specifically grant you permission to pursue discovery. Yet the opposing party in a divorce, custody, child support case, or other similar case has the right to see your basic financial information because the parties must file a financial disclosure form that is required by the rules.

What is “discovery?” It is a process by which a party can obtain information on relevant topics to the litigation from the opposing side(s). For example, in a car wreck case (also called auto accident case) you can obtain information about the other driver’s criminal record, driving record, employment history. What the law considers relevant to the discovery effort is really rather broad.

In a criminal case the rules generally require that the state/government provide a copy of the police report and related documents. In a DUI case these would include the breath test results or blood test results. Additionally, the state/government would have to provide you with a copy of any videotaped or electronically recorded video of the scene, the arrest, and the breath testing.

In some large, complex cases the discovery process can take an enormous amount of time and energy. The process can be expensive to be sides in such a case.

An important part of the discovery process in personal injury cases (also called bodily injury cases) is the Deposition. Basically, a deposition is the only opportunity that the opposing side’s lawyer has to ask you questions in person prior to the trial. It is normally conducted in a conference room, in the presence of a court reporter. The person being deposed is placed under oath at the start of the deposition. Usually a typed transcript of the deposition testimony is prepare after the event and can be used in the trial of the case.

While discovery can be burdensome, it is important to the fair resolution of cases

Please feel free to call me if you have any questions about lawsuits at (864) 834-8111.

April 29, 2017

DUI

Driving under the influence of alcohol or drugs is not illegal, unless your ability to drive is impaired. Because everyone’s ability to drive without impairment after consumption of alcohol varies, each DUI case is unique. The basic approach of the law to proving this crime is to measure the amount of alcohol in one’s breath and then make two inferences from that measurement. First, the amount of alcohol in one’s bloodstream is inferred from the amount of alcohol that is detected in your breath. Second, the degree of impairment of your driving ability is inferred from the level of alcohol in your blood. In other words, the law assumes that the amount of alcohol in your bloodstream directly corresponds to the impact that alcohol is having on your brain and it’s judgment; thus upon your nervous system’s ability to issue the signals that tell your limbs to perform functions like pushing the brake pedal or turning the steering wheel.

Yet, there are further inferences that have to be made to find that you are guilty of the crime. The officer who is attempting to enforce the law next makes the inference that the degree of impairment he has inferred from the test is the same degree of impairment that existed at the time you were operating the motor vehicle.

The officer is assuming that there is a direct correlation between the amount of alcohol in your bloodstream and you ability to operate a vehicle. Because the officer has no information on your individual ability to operate a vehicle, he is also making the assumption that your skill is within the range of skill held by the average driver.

Basically, the law is attempting to make a highly individualized and complex determination (whether your driving ability is impaired) appear to be as simple as determining whether .80 is a higher number than .10.

The a KEY point you need to understand that all of the above-explained inferences are based upon information that YOU voluntarily give the officer. When you agree to submit a sample of your breath or blood, you essentially lay the first brick upon which the officer builds the wall of his case- brick by brick, or actually by, inference upon inference. You have the Constitutional Right to refuse to talk to the officer or to give him a sample of your breath.

Unless you believe the officer is going to give you the benefit of any doubt in making all those inferences, you should decline to provide a breath sample.

April 29, 2017

In the Zone for court.

Presenting a case properly in court requires that you are organized, prepared, and able to recall facts quickly. It helps if you are “good on your feet.”

I am sure you have heard of an athlete or performer getting in to their “zone.” While in that state they are able to perform at the top of their game.

Just as practice helps an athlete get into their zone, so does practice help a trial attorney get in her zone. Experience counts.

If you are in the zone when representing yourself in court, you might receive an acceptable outcome. However, an experienced attorney is going to achieve better results in most cases, especially if he or she is in the zone.