Archives for February 2017

10 Essentials to Make Sure You Come Out on Top In Your Divorce Hearin

In a divorce case, the hearings can vary, but the principles outlined below will help you come out on top regardless of the type of hearing you will be participating in.

Know the Type of Hearing. The most important step in preparing for a successful hearing is asking your attorney to explain to you the type of hearing that you will have and what will be expected from you. For example, and initial calendar call and meet and confer may be fairly simple. Further down the line, if you end up in a trial, you may need significant preparation. Don’t be afraid to ask questions and to know before you go whether your attorney plans to have you testify, and if so, what topics will be covered. Preparation is the most important key to success.
Be On Time. Being on time seems like a simple plan, but it is surprising how many people struggle with being on time to a court hearing. You need to plan extra time for traffic, finding your way, and parking. You do not want to be rushed. In many courtrooms, you will need to leave your cell phone and any other electronic devices in the car. If you want to bring those items in, plan extra time, in case you are told no, and sent back to your car.
Look Professional. Your appearance is the first impression any attorney or judge will get from you, so make sure that you are clean, neat, and professional.
Be Organized. If your attorney hasn’t already collected the relevant documents from you and has requested that you bring certain documentation to court, then it’s imperative that you remember to bring it. Make extra copies so that you have enough to share. Have them organized so that you can easily find what you are looking for.
Don’t Expect to Be the Only Case. Some parties are disappointed to find out that they aren’t the only case of the day. There are often many cases on the docket, and you likely won’t have a choice about when yours is heard. When you know what to expect, you can come with the patience to approach your hearing in a calm and collected manner. A cool demeanor will present you and your case in the best light.
Know Your Facts. You need to read and understand everything that has happened, everything that has been filed on your behalf, and everything that your attorney may want you to testify about. You are the expert on your own case and you can leverage that expertise to assist your attorney in representing you well.
Know and Understand Everything Your Spouse’s Attorney has Filed. In addition to knowing your own facts, you need to know where and how your spouse’s story differs from yours. Understanding his or her arguments will help you and your attorney to work together to show why your version of the facts is correct.
Tell the Truth. If you are telling a story at the dinner table, a little embellishment might make the tale better. In court, stick with the cold, hard truth. It is difficult for the other side to poke holes in the truth. If you exaggerate or outright lie, you expose yourself to impeachment, which will only reflect poorly on you and your case.
Be Reasonable. Divorce cases can be highly emotional because they involve finances and children, broken promises and shattered dreams. Remember that your divorce hearing isn’t therapy. You are here to get the best outcome. Consider ahead of time what an acceptable settlement would be and discuss that with your attorney. Try to think ahead about what your ex-spouse’s sticking points will be and strategize with your counsel on how to overcome his or her objections. Although challenging, try to think of the hearing as a business negotiation rather than a war with your ex.
Prepare with Intellect not Emotion. Use your head and not your heart in a divorce hearing. Understand and anticipate the type of hearing it will be and cater your arguments to the type that will be well-received by the court. For example:
- Child custody – In a child custody case, the focus will be on the health, education, safety, general welfare of the child. Any argument or testimony should be focused on the best interest of the child, and anything that appears revenge-motivated or manipulative will only reflect poorly on the party presenting it.
- Temp child support or spousal support – In a temp child support or spousal support where the worker is an employee, this will typically be decided by a mathematical formula, but if self-employment or fluctuating income are involved, this may require more preparation to present to the Court what appropriate spousal support should be.

If you follow the advice in this article, you will likely be well-prepared for a successful hearing. The most important tip, though, is to thoroughly consult with your attorney so that he or she can guide you in the specifics of your case.

Filed Under: Divorce Lawyer

How To Win Your DUI Case

When preparing to fight a DUI charge, remember that you are presumed innocent and you have a right to question any evidence, testimony, test results, or assumptions that is presented by the prosecution against you. This article will address some of the areas of the prosecution’s case against you that may be susceptible to attach. This isn’t an all-inclusive list, but it will give you a good start in developing a strategy to identify reasonable doubt and win your DUI case.

The Stop. In order to pull you over, and officer must have reasonable suspicion that you are violating the law. If the officer pulls you over based on your race or just a “hunch,” then you can file a Motion to Suppress. In a nutshell, a Motion to Suppress is where you argue that the stop itself violated your Constitutional rights, and therefore the evidence against you should be thrown out. Police officers are trained to document facts that lead to reasonable suspicion in their reports, so a Motion to Suppress is often an uphill battle, but sometimes officers make mistakes. It’s worth looking at the stop because if you win on the Motion, that typically means victory on the whole DUI case.

Challenge the BAC. If your breath or blood tests show a blood alcohol level of .08 or higher, you will need to find a way to call into question the results of these tests.

Rising Blood Alcohol Defense – The key point here is that the .08 level has to be at the time you were driving. The theory of this defense is that alcohol takes time to absorb into the blood stream. The results of a breath or blood test could be higher during the test than during the operation of the vehicle, based on a variety of factors:
- How much food has the person eaten? (Food tends to slow down absorption)
- Is the driver male or female? (A woman’s BAC may rise higher than a man’s)

Medical Problem Defense. The key point here is whether you have a medical problem that would render the results inaccurate.

Do you have a medical condition such as asthma or emphysema that affects your lung capacity and ability to blow into a machine?

Question the reliability of the testing procedures.

Was the testing device calibrated and tested?

Was the person giving the test trained on the device?

How many times did you “blow” and were the results consistent or varied from each other?

Were you observed prior to the DUI?

Eating, drinking, smoking, vomiting, burping, etc. can all impact test results.

Fight the Officer’s Observations and Field Sobriety Tests.

Speech impediment or Injury. Do you have a speech impediment or other condition that could account for an officer’s observation of slurred speech? Do you have a health condition that would prevent you from understanding or complying with the tests?

Weather conditions. Was there wind, rain, snow, etc. that could have affected your ability to hear the officer’s instructions and comply with them?

Look at the National Highway Traffic Administration’s procedures to see whether the tests were administered properly. If the officer did not properly conduct the tests, or if correct instructions were not given, then you can question the reliability of the conclusions drawn from the tests.

Your defense will be as specific as your facts, as each DUI case is unique, but this guide will assist you in finding and taking advantage of the weaknesses in the prosecution’s case against you.

Filed Under: General

Should I Hire a Criminal Defense Attorney?

If you are facing criminal charges, you may be looking at your bills and wondering if you can afford an attorney or if it’s worth hiring one. A criminal conviction can come with a heavy financial impact, which can include fines imposed by the court, fees for counseling or treatment, the burden of lost wages if jail time is involved, and higher auto insurance costs if the offense was driving under the influence of alcohol or drugs. This article cites studies and surveys for the proposition that

Attorney vs. Self-Representation – In a famous case, Gideon v. Wainwright, Justice Black reasoned: “fair trials before impartial tribunals in which ever defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” This quote emphasizes the importance of an attorney in a criminal case.

Survey Responses Show Better Outcomes with an Attorney than Pro Se

Respondents in a survey published at the site below indicated a high DUI conviction rate for defendants who represented themselves. See http://criminal.lawyers.com/dui-dwi/does-using-a-dui-lawyer-give-you-a-better-outcome.html

Private Attorneys vs. Public Defenders – If you at an income level to qualify for a public defender, but you have family or others who are willing to contribute to you defense, you may be wondering if a private attorney would be more effective in representing you. According to at least a few studies, the answer to that question is yes, private attorneys — statistically speaking – obtain much better outcomes for their clients than public defenders.

Studies Show Better Outcomes with Private Attorneys

“Results indicate that defendants with public defenders are more likely to be detained pretrial, more likely to be convicted, and less likely to have their cases dismissed.”

(Excerpt from a study published in the Journal of Criminal Justice, a summary of which can be found here, http://www.sciencedirect.com/science/article/pii/S0047235213000366)

“…studies suggest that having appointed counsel negatively affects case outcomes, such as conviction and sentencing, in that those with appointed counsel are more likely to be convicted and/or sentenced to longer incarceration terms.”

(Excerpt from a study about the effect of attorney type on bail hearings, which can be found at http://journals.sagepub.com/doi/abs/10.1177/0887403414562603)

See also, “Charts: Why You Are In Trouble if You Can’t Afford a Criminal Lawyer,” which can be found at http://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-court-charts

Other Considerations –There are many other considerations that you will need to weigh to decide whether to hire an attorney, whether to request a public defender, or whether to represent yourself. A safe approach to take is to at least consult with an attorney initially, and then to decide the best course of action from there. Some factors you might consider include:

How serious is the offense?
Am I innocent?
Would I prefer to go to trial, or would I be more comfortable with a plea deal?
What will be the financial burden of a guilty plea or conviction?
What resources, side income, or family to help defray the cost of an attorney?

The decision about whether to seek representation is a very important one, and your selection of an attorney is also critical to your success, and this resource can help you think through some of the initial steps of preparing your criminal defense.