Category: Blog

There seem to be more and more trucks on the highways these days. Whiles that bodes well for the economy, truck traffic does raise concerns about safety. Whether you call them semis, tractor-trailers, 18-wheelers, semi-trucks, or just big trucks, they are a force to reckon with and no one wants to get hit with one. An injury case resulting from a tractor-trailer wreck is not like a case in which two cars collide. Because of the size of trucks they collide with greater force than a normal automobile does. And lawyers need more experience to understand the many government regulations on trucks, truck drivers, and the trucking industry. The government has established many rules and regulations that truck drivers are supposed to follow. Additionally, truck have so-called black box recorders that record the movements of the trucks. The information on the recorders can aid lawyers, attorneys, and investigators in understanding the causes and details of truck accidents.

If you or someone you know is injured in a truck accident, collision or wreck, please call for a free consultation at (864) 834-8111.

Have you ever tried to drive a nail with a pair of pliers or screw in a screw with a pocket knife? The right tool makes all the difference. Lawyers use tools to do their jobs too. A lot of the tools that attorneys use are stored in their brains. Trying to represent yourself in court is like trying to build a house with no tools. Call my if you want a fully equipped attorney:  (864) 325-2660.

As a lawyer who has litigated with insurance companies in many cases that revolved around whether there was insurance coverage on a motorized vehicle that was involved in a wreck, I was recently surprised to hear a judge say that, “Either he had insurance or he didn’t.” Granted, this particular judge was presiding over a criminal case in a court that doesn’t deal with civil lawsuits, still she was an experienced lawyer. However, that does bring home the point that not all judges and not all lawyers know about some areas of the law. There is a lot of specialization in the legal world today. Personally, I think it is a mistake to focus on learning more and more about less and less. There is a lot to be said for having a broad base of experience and understanding of the law.
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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.

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

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.

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.

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.

Legal Nuggets- Wrongful Death

Although death is inevitable, many deaths come sooner than they should. A “wrongful death” is one that results from negligence, carelessness, incompetence, malpractice, avoidable-accident, neglect, assault and battery, recklessness, and other malfeasances by third-parties. I have handled many types of wrongful death cases over my twenty-plus years of practicing law. If you have a loved-one die in circumstances that you feel could be the result of wrongful actions (or failures to act), please contact me for a free consultation, during which I will gently advise you, not pressure you.

Legal Nuggets- Wills and Living Trusts

Many people contact me about setting-up a Living Trust, instead of a “Last Will and Testament”. I generally recommend the use of a Will, not a Living Trust, but there are exceptions to every rule.

One of the big differences between a Trust and a Will is that before a trust is effective the property has to be actually transferred to it. If you died before you actually signed a deed transferring your home to the trust, then the property would go into your estate. However, there may be restrictions on such transfers in your mortgage on the house. Also, the transfer of the property to the trust would in some circumstances constitute a taxable event, or as a gift that invokes the requirement to file a gift tax return with the IRS and/or your state taxing authority.

If you use a Will, then no deed is required to make the Will effective in controlling the disposition of your property after your death. You can change your Will as often as you please and however you like, prior to your death. But the amendment of your Living Trust could require that you deed real estate out of the trust or to the “Amended Trust.”

Many people simply want to insure that certain assets transfer to their spouse upon their death in the least expensive and simplest manner possible. In many such cases the solution is to title the property or account “jointly, with right of survivorship,” not create a Living Trust. Nonetheless, there are some cases that are appropriate for Living Trusts. It is best, therefore, to consult your tax adviser and your legal adviser before you make a decision on how best to proceed with your plans for how you want your property to be distributed upon your death.