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.

May 12, 2016

Wrongful Death

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.

May 12, 2016

Wills and Living Trusts

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.