In some cases, an attorney may have to go an extra step in securing valid coverage for an accident. Like in life, not every person driving a vehicle is a perfect driver. Some may not have a valid driver's license. Some may not have liability insurance or proof of financial responsibility. Even though California requires liability insurance with limits of a minimum: $15,000, some drivers disregard the law.
An accident that involves an uninsured driver will result in: (1) a license suspension for the uninsured driver; and (2) trigger coverage for the other driver pursuant to the uninsured motorist provision in the insured's own insurance policy.
Bad news is sometimes given to clients when it is confirmed that they waived their uninsured / underinsured motorist coverage. Thus, they are left with the sole option of pursuing damages from the uninsured driver directly, which typically means that they are left with no justice (most often, uninsured drivers have no recoverable assets and the costs of seeking a judgment outweigh any benefits).
But, a good attorney will go the extra mile. They will not take the insurance carrier's word without proper evidence. Trust, but verify.
California Insurance Code section 11580.2 subsection (a)(1) obligates the insurance carrier to offer uninsured motorist coverage. It also requires a written waiver of the insured when they do not want the coverage. An attorney must always request the written waiver when the carrier states that there is no UM coverage.
If the carrier cannot provide the written waiver with the client's signature, pursuant to subsection (p)(7), uninsured motorist coverage will exist for the insured. It enables the insured to recover a settlement to pay for medical bills and pain and suffering.
If you, or someone you know, has been involved in an accident with an uninsured motorist, contact an experienced attorney. He or she may be able to obtain UM coverage despite an insurance carrier's assertions that no UM coverage applies.
Sunday, June 26, 2016
Monday, June 13, 2016
Defending Against a Minor in Possession Criminal Charge
America is different than Europe and the rest of the world in many ways. When it comes to alcohol, one big difference is the legal age an individual can purchase and consume alcohol. In California, a person must be 21 to purchase and consume an alcoholic beverage. Moreover, being a minor and possessing an alcohol beverage in public could lead to a criminal charge.
California Business and Professions Code section 25662 prohibits minors, under the age of 21, from possessing an alcoholic beverage in any public place. The short term for this offense is "MIP," minor in possession. A MIP is a misdemeanor, meaning that it carries potential ramifications on a person's criminal record. One cannot go to jail, but there is the possibility of significant community service hours.
Not as well-known is the penalty related to a person's driver's license. Pursuant to California Vehicle Code section 13202.5, a person convicted of MIP will face a one-year license suspension, or a one-year delay in obtaining a driver's license. Each subsequent offense carries an additional year of suspension or delay. Thus, a person convicted will not only face a fine, community service, criminal record, and a license suspension, he or she will also be burdened with trying to find transportation to and from obligations.
Like with every criminal charge, there are available defenses that could result in a dismissal. An illegal search or seizure, i.e. no probable cause, will be favorable to a defendant. Also, there are written exceptions to MIP. A person working as a waiter or server cannot be convicted if he or she is performing duties related to their employment.
Perhaps the most magnanimous decision by the legislation was to add immunity to a minor who calls 911 for purposes of aiding a minor who needs medical attention due to alcohol consumption. It is a wise amendment because it saves lives; the law encourages individuals to seek help, instead of trying to avoid criminal prosecution.
There are some common sense requirements for the immunity to be applicable. The caller must be the first caller to 911. So if there is a party, not every single minor will receive the benefits of the law, if each one calls separately. The caller must also stay on the scene and cooperate with law enforcement or medical emergency personnel.
A minor in possession charge is a misdemeanor with serious consequences. If you, or someone you know, is charged with MIP, contact an experienced criminal defense attorney for assistance.
California Business and Professions Code section 25662 prohibits minors, under the age of 21, from possessing an alcoholic beverage in any public place. The short term for this offense is "MIP," minor in possession. A MIP is a misdemeanor, meaning that it carries potential ramifications on a person's criminal record. One cannot go to jail, but there is the possibility of significant community service hours.
Not as well-known is the penalty related to a person's driver's license. Pursuant to California Vehicle Code section 13202.5, a person convicted of MIP will face a one-year license suspension, or a one-year delay in obtaining a driver's license. Each subsequent offense carries an additional year of suspension or delay. Thus, a person convicted will not only face a fine, community service, criminal record, and a license suspension, he or she will also be burdened with trying to find transportation to and from obligations.
Like with every criminal charge, there are available defenses that could result in a dismissal. An illegal search or seizure, i.e. no probable cause, will be favorable to a defendant. Also, there are written exceptions to MIP. A person working as a waiter or server cannot be convicted if he or she is performing duties related to their employment.
Perhaps the most magnanimous decision by the legislation was to add immunity to a minor who calls 911 for purposes of aiding a minor who needs medical attention due to alcohol consumption. It is a wise amendment because it saves lives; the law encourages individuals to seek help, instead of trying to avoid criminal prosecution.
There are some common sense requirements for the immunity to be applicable. The caller must be the first caller to 911. So if there is a party, not every single minor will receive the benefits of the law, if each one calls separately. The caller must also stay on the scene and cooperate with law enforcement or medical emergency personnel.
A minor in possession charge is a misdemeanor with serious consequences. If you, or someone you know, is charged with MIP, contact an experienced criminal defense attorney for assistance.
Sunday, May 29, 2016
Managing Client Expectations in an Injury Case
A client is similar to a screenwriter. They have fantastical ideas, which turn into grandeur images in their head. Most of those ideas involve unrealistic expectations as to what the true value of their case is. For some reason they believe that an accident claim is a ticket to retirement. Most often, it is not.
Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.
Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.
But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.
Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.
Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.
Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.
Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.
Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.
But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.
Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.
Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.
Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.
Friday, May 13, 2016
Lessons from the Popular Podcast "Serial"
My wife and I finished the first season of the podcast "Serial." The popularity of the podcast does not surprise me. Not only was the presentation well done, but the integrity of the investigation was sound. For those who may not know what I am referring to, "Serial" is an expose into the 1999 murder of Hae Min Lee, a charming, brilliant high school student.
A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.
The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.
The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.
Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).
A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.
Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.
Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.
Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.
No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.
A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.
The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.
The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.
Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).
A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.
Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.
Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.
Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.
No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.
Monday, April 25, 2016
E-Filing in Los Angeles County for Personal Injury Cases
Stanley Mosk is the central court in Los Angeles County for civil cases. Thousands of cases are heard each year at the Hill Street courthouse. In addition, due to changes a few years ago, all personal injury cases are initially filed at Stanley Mosk. It is referred to as the personal injury hub.
Prior to February 2016, there were a few ways to file a case. One way -- the old fashion way -- was to walk it in and file it in person with the civil clerk in Room 102. A plaintiff could also file by mailing in the lawsuit, with a check for the filing fee. Finally, fax filing was an option as well. No more, however. Cases no longer can be filed by fax.
Personal injury cases can now be e-filed! It appears that e-filing may be rolled out for all civil cases, but as of now, it is limited to personal injury causes of action.
The technological change is welcomed. Los Angeles County falls behind Orange County and San Diego County with respect to e-filing. Los Angeles County certainly handles larger volumes of cases but one way to increase productivity and efficiency is to embrace technology.
Initiation of a personal injury case requires a complaint, summons, and cover sheet. A complaint is a legal document that contains the claims made against the defendant. It is meant to provide notice of why the plaintiff is seeking monetary damages. The summons is a procedural document that gives information as to the pending litigation against the defendant. It obligates the defendant to respond to the allegations made. The cover sheet helps the clerk determine where to assign the case.
If you or someone you know has a potential case, it is prudent to consult with a personal injury attorney. One should not e-file a case pro per unless they understand the ramifications of proceeding forward without representation.
Prior to February 2016, there were a few ways to file a case. One way -- the old fashion way -- was to walk it in and file it in person with the civil clerk in Room 102. A plaintiff could also file by mailing in the lawsuit, with a check for the filing fee. Finally, fax filing was an option as well. No more, however. Cases no longer can be filed by fax.
Personal injury cases can now be e-filed! It appears that e-filing may be rolled out for all civil cases, but as of now, it is limited to personal injury causes of action.
The technological change is welcomed. Los Angeles County falls behind Orange County and San Diego County with respect to e-filing. Los Angeles County certainly handles larger volumes of cases but one way to increase productivity and efficiency is to embrace technology.
Initiation of a personal injury case requires a complaint, summons, and cover sheet. A complaint is a legal document that contains the claims made against the defendant. It is meant to provide notice of why the plaintiff is seeking monetary damages. The summons is a procedural document that gives information as to the pending litigation against the defendant. It obligates the defendant to respond to the allegations made. The cover sheet helps the clerk determine where to assign the case.
If you or someone you know has a potential case, it is prudent to consult with a personal injury attorney. One should not e-file a case pro per unless they understand the ramifications of proceeding forward without representation.
Monday, April 11, 2016
Constitutional Right to Effective Representation in Trouble
The Constitution is the bedrock of our Republic. Not only did it formulate a form of government meant to distribute powers among the branches, it also established personal liberties and rights. Among those rights, includes the right to an attorney. The Fifth and Sixth Amendments should be respected.
Unfortunately, throughout our country, lack of public funding has led to a crisis in adequate criminal representation. The New York Times recently reported that Louisiana defendants are without counsel. In some situations, the accused remain in jail without a trial date. Some in the criminal defense bar are being compelled, without pay, to represent indigent defendants.
Louisiana judges have threatened to release defendants due to the crisis. Despite being outright appalling, Louisiana does not stand alone. States are struggling to find ways to pay for public defenders. As is, public defenders face enormous challenges: having to litigate hundreds of cases without much assistance. Instead of justice being served, often, it is an assembly-line to get cases completed quickly without second thought as to the defendant's guilt or innocence.
Most citizens do not pay attention to this growing problem. Such issues are not important until it becomes a personal issue -- say when a family or friend has been charged with a crime. Our country should care about these constitutional rights.
Even if states are being irresponsible with their budgets, public defense must be paid for. More funds must be allocated to these offices.
Additionally, novel approaches must be considered. Funding cannot rely solely upon traffic ticket revenues. A Texas county announced that it intended to experiment with a voucher program. The county will allow a defendant to choose an attorney of his or her choice, and provide a certain amount of the funds for representation. Other experiments should be done.
We do not expect constitutional principles to be disregarded when it is difficult to find the money. Our elected officials must make it a priority. You, as a citizen or resident, should make your voice heard. Let's protect the constitutional right to an attorney.
Unfortunately, throughout our country, lack of public funding has led to a crisis in adequate criminal representation. The New York Times recently reported that Louisiana defendants are without counsel. In some situations, the accused remain in jail without a trial date. Some in the criminal defense bar are being compelled, without pay, to represent indigent defendants.
Louisiana judges have threatened to release defendants due to the crisis. Despite being outright appalling, Louisiana does not stand alone. States are struggling to find ways to pay for public defenders. As is, public defenders face enormous challenges: having to litigate hundreds of cases without much assistance. Instead of justice being served, often, it is an assembly-line to get cases completed quickly without second thought as to the defendant's guilt or innocence.
Most citizens do not pay attention to this growing problem. Such issues are not important until it becomes a personal issue -- say when a family or friend has been charged with a crime. Our country should care about these constitutional rights.
Even if states are being irresponsible with their budgets, public defense must be paid for. More funds must be allocated to these offices.
Additionally, novel approaches must be considered. Funding cannot rely solely upon traffic ticket revenues. A Texas county announced that it intended to experiment with a voucher program. The county will allow a defendant to choose an attorney of his or her choice, and provide a certain amount of the funds for representation. Other experiments should be done.
We do not expect constitutional principles to be disregarded when it is difficult to find the money. Our elected officials must make it a priority. You, as a citizen or resident, should make your voice heard. Let's protect the constitutional right to an attorney.
Tuesday, March 29, 2016
Mediation and Alternative Dispute Resolutions in Motor Vehicle Accidents
After a motor vehicle accident, or other type of injury claim, there is a process that is routinely followed before there is formal litigation. In other words, a person does not sue the very next day after he or she is injured as the result of a negligent party. Because of liability insurance, there is an opportunity to settle a claim short of a lawsuit.
Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.
Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.
In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.
Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.
There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.
Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.
If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.
Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.
Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.
In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.
Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.
There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.
Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.
If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.
Saturday, March 12, 2016
The Power of Impeachment in TV's People v. O.J. Simpson
Twenty years have passed since the O.J. Simpson trial led to an acquittal. The sensationalism of the trial made the case one of the most watched in the 20th century. A beloved sports hero, actor, and celebrity was the "star" of the court proceedings. Everyone had an opinion as to whether O.J. was guilty or innocent.
Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.
The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."
In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.
During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.
Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices.
It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.
At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.
Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.
The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.
Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.
The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."
In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.
During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.
Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices.
It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.
At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.
Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.
The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.
Friday, February 19, 2016
Knowing the Risks of Litigation
Not every case is a winner. The nature of litigation implies that there is a irreconcilable issue of dispute that exists between two rational persons. Only when a neutral, or judicial officer, weighs in does it become clear that the law favors one of the two. That being said, it is important for plaintiffs to know the risks of going forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
Monday, February 8, 2016
Preliminary Hearings in Felony Cases
A lot of our blog posts touch upon the subject of criminal procedure. The reason: defendants should be aware of what is going on in their case. Too often, defendants are ignorant of what they must accomplish to be cleared of the charges against them. Knowing the different burdens of proof, obstacles, and objectives will only assist the attorney in his or her representation.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
Sunday, January 24, 2016
Driverless Cars: Litigation of the Future?
The other day, a prominent legal show featured a storyline that involved a driverless car lawsuit against a large tech company. Plaintiff's attorney held a deposition and questioned the designer on artificial intelligence ("AI"), potential bugs, and knowledge regarding the risks of a collision. It was exciting, full of conflict, and made for a good episode.
Issues surrounding driverless technology are not new. Recent news articles have documented accidents that have occurred with driverless vehicles. Creators of the self-automated vehicle were quick to blame humans, instead of the AI. According to automobile insurance data, the tech gurus were right; the humans were found to be at fault.
But, conclusions also showed that driverless cars may be too cautious. Pedantically, driverless cars follow the rules of the road. They do not drive as humans do. And that may be one reason why accidents have occurred. When we drive, intentionally or not, humans have a way of adapting to the situation and bending the rules. Other drivers are aware of this phenomena and respond accordingly. AI vehicles are not programmed, at least not yet, for dealing with slight infractions (although some driverless companies have taken steps to tweak rule-following).
Regardless, accidents do occur. People get injured. With respect to personal injury law, driverless cars will lead to dramatic changes in how cases will proceed forward. Why? Our current system allows for human actors to open a claim (or sue) the other driver responsible for the accident. When there is no other driver, whom does the injured party seek redress? It will likely be the driverless car manufacturer. Suing car manufacturers falls under the umbrella of product liability. While it shares similarities with negligence cases, it is distinct.
The standard modus operandi for personal injury attorneys will be affected by technology. Ultimately, however, legislators will be responsible for creating the new laws/rules regarding self-automated vehicles. Until then, one can only speculate how this technological development will specifically impact injury accident cases.
Issues surrounding driverless technology are not new. Recent news articles have documented accidents that have occurred with driverless vehicles. Creators of the self-automated vehicle were quick to blame humans, instead of the AI. According to automobile insurance data, the tech gurus were right; the humans were found to be at fault.
But, conclusions also showed that driverless cars may be too cautious. Pedantically, driverless cars follow the rules of the road. They do not drive as humans do. And that may be one reason why accidents have occurred. When we drive, intentionally or not, humans have a way of adapting to the situation and bending the rules. Other drivers are aware of this phenomena and respond accordingly. AI vehicles are not programmed, at least not yet, for dealing with slight infractions (although some driverless companies have taken steps to tweak rule-following).
Regardless, accidents do occur. People get injured. With respect to personal injury law, driverless cars will lead to dramatic changes in how cases will proceed forward. Why? Our current system allows for human actors to open a claim (or sue) the other driver responsible for the accident. When there is no other driver, whom does the injured party seek redress? It will likely be the driverless car manufacturer. Suing car manufacturers falls under the umbrella of product liability. While it shares similarities with negligence cases, it is distinct.
The standard modus operandi for personal injury attorneys will be affected by technology. Ultimately, however, legislators will be responsible for creating the new laws/rules regarding self-automated vehicles. Until then, one can only speculate how this technological development will specifically impact injury accident cases.
Wednesday, January 6, 2016
New 2016 Law Will Require a Database for Police Stops
In the wake of tragic police stories around the country, California took a step in transparency and accountability. Governor Brown has mandated that law enforcement agencies develop a program by 2018 that would allow them to collect and report data on the people they stop. Data will include perceived race and ethnicity, and the cause for the stop.
Similar to other actions taken, Governor Brown cited the phenomenon of "jail and prison populations [exploding]." He also discussed the byzantine California Penal Code, which "[covers] every conceivable form of human misbehavior." Since his day first day in office, he has been serious about criminal justice reform. He believes that this database will result in more justice and more fiscal savings.
Police are not allowed to stop individuals at whim. There must be probable cause for an investigatory stop. "Driving while black or brown" will not suffice. A reported stop that lacks probable cause will face scrutiny from law enforcement, attorneys, and judges. This is a step in the right direction. Far too often cases will be based off an illegal stop.
A separate 2016 law will require protocol to be established for the handling of body cameras worn by police officers. The law intends to ensure that recordings are not mishandled or damaged. Again, criminal litigation relies heavily on recorded evidence. A video may contradict a witness statement, or result in exculpatory evidence for the defendant.
Like stated in previous blog posts, California has a problem with over-incarceration but steps are being taken to address them. These laws will address issues that begin at the outset of a criminal case: the initial police stop and evidentiary support for an arrest. A person cannot be convicted, most of the time, if an arrest was unconstitutional.
If you, or someone that you care about, is arrested for a crime, it is important to seek the advice of experienced counsel. Laws are ever changing and complex. It is essential to consult with someone who may be familiar with new laws that could impact your case.
Similar to other actions taken, Governor Brown cited the phenomenon of "jail and prison populations [exploding]." He also discussed the byzantine California Penal Code, which "[covers] every conceivable form of human misbehavior." Since his day first day in office, he has been serious about criminal justice reform. He believes that this database will result in more justice and more fiscal savings.
Police are not allowed to stop individuals at whim. There must be probable cause for an investigatory stop. "Driving while black or brown" will not suffice. A reported stop that lacks probable cause will face scrutiny from law enforcement, attorneys, and judges. This is a step in the right direction. Far too often cases will be based off an illegal stop.
A separate 2016 law will require protocol to be established for the handling of body cameras worn by police officers. The law intends to ensure that recordings are not mishandled or damaged. Again, criminal litigation relies heavily on recorded evidence. A video may contradict a witness statement, or result in exculpatory evidence for the defendant.
Like stated in previous blog posts, California has a problem with over-incarceration but steps are being taken to address them. These laws will address issues that begin at the outset of a criminal case: the initial police stop and evidentiary support for an arrest. A person cannot be convicted, most of the time, if an arrest was unconstitutional.
If you, or someone that you care about, is arrested for a crime, it is important to seek the advice of experienced counsel. Laws are ever changing and complex. It is essential to consult with someone who may be familiar with new laws that could impact your case.
Saturday, December 19, 2015
Plaintiff's Motions in Limine Prior to an Injury Accident Trial
The purpose of a lawsuit is to afford parties an opportunity to resolve disputes before a tribunal. Litigation has its benefits. For one, the force of law controls. A party cannot ignore procedural rules without facing sanctions. Two, the result will be binding. A judgement from a court of law will be enforced. Finally, three, parties can have their day in court.
Lawsuits rarely result in a trial by jury, however. Most cases are resolved short of trial -- by way of mediation, or by settlement negotiated by the attorneys. Nevertheless, a trial attorney should treat every case as if it is going to trial. This mindset will help maximize the case value.
Part of preparing for trial lies in procedural strategies. One such strategy is controlling the evidence admitted during the trial. Motions, or requests to the judge, can be made before the jury is impaneled. Motions in limine are made to exclude certain evidence from being heard by the jury. There are a few motions in limine that should be considered in every case.
"Character evidence," or evidence of a person's past conduct unrelated to the case, is not allowed. Thus, if a plaintiff has been involved in prior lawsuits, or had been found at fault in another case, a motion should be made to protect the plaintiff. A jury may consider "character evidence" as evidence to prove conduct in the relevant case. The law prohibits that line of thinking. The present evidence should be considered alone without the information of what may or may not have happened in a separate case.
Another popular motion limits the ability of the defendant to introduce evidence not already disclosed to the plaintiff. During pre-trial litigation, discovery is completed by both sides. When a party responds to discovery, they should be held to their responses. New or contradictory evidence can be excluded with a motion in limine. For example, a defendant will assert his defense contentions during discovery. Let's say Danny the Defendant stated in his response to an interrogatory that he was not negligent because the plaintiff ran a red light. During trial though, Danny the Defendant tries to testify that he was not negligent because the signal was defective. His testimony can be excluded because it is inconsistent with his discovery response.
Motions in limine regarding experts are common as well. Medical experts are utilized in almost every motor vehicle accident case. In order for the plaintiff to prove damages, it is helpful to have a doctor discuss the plaintiff's medical treatment, and future medical treatment that may be necessary. It gives the jury information about the extent of money that has been spent or will have to be spent.
A plaintiff attorney should anticipate the content of the defendant's medical expert's opinions. An expert must disclose all of his opinions during a deposition when asked. If an expert tries to give a new or different opinion during trial, it could be devastating to the plaintiff's case. Thus, a motion in limine should be filed so that the defendant's expert's opinions are limited to the opinions given during deposition.
Trial results are unpredictable. Juries have been known to surprise attorneys. It is important, then, for attorneys to do everything in their power to control the process. Motions in limine are one way of giving the plaintiff an opportunity to win.
Lawsuits rarely result in a trial by jury, however. Most cases are resolved short of trial -- by way of mediation, or by settlement negotiated by the attorneys. Nevertheless, a trial attorney should treat every case as if it is going to trial. This mindset will help maximize the case value.
Part of preparing for trial lies in procedural strategies. One such strategy is controlling the evidence admitted during the trial. Motions, or requests to the judge, can be made before the jury is impaneled. Motions in limine are made to exclude certain evidence from being heard by the jury. There are a few motions in limine that should be considered in every case.
"Character evidence," or evidence of a person's past conduct unrelated to the case, is not allowed. Thus, if a plaintiff has been involved in prior lawsuits, or had been found at fault in another case, a motion should be made to protect the plaintiff. A jury may consider "character evidence" as evidence to prove conduct in the relevant case. The law prohibits that line of thinking. The present evidence should be considered alone without the information of what may or may not have happened in a separate case.
Another popular motion limits the ability of the defendant to introduce evidence not already disclosed to the plaintiff. During pre-trial litigation, discovery is completed by both sides. When a party responds to discovery, they should be held to their responses. New or contradictory evidence can be excluded with a motion in limine. For example, a defendant will assert his defense contentions during discovery. Let's say Danny the Defendant stated in his response to an interrogatory that he was not negligent because the plaintiff ran a red light. During trial though, Danny the Defendant tries to testify that he was not negligent because the signal was defective. His testimony can be excluded because it is inconsistent with his discovery response.
Motions in limine regarding experts are common as well. Medical experts are utilized in almost every motor vehicle accident case. In order for the plaintiff to prove damages, it is helpful to have a doctor discuss the plaintiff's medical treatment, and future medical treatment that may be necessary. It gives the jury information about the extent of money that has been spent or will have to be spent.
A plaintiff attorney should anticipate the content of the defendant's medical expert's opinions. An expert must disclose all of his opinions during a deposition when asked. If an expert tries to give a new or different opinion during trial, it could be devastating to the plaintiff's case. Thus, a motion in limine should be filed so that the defendant's expert's opinions are limited to the opinions given during deposition.
Trial results are unpredictable. Juries have been known to surprise attorneys. It is important, then, for attorneys to do everything in their power to control the process. Motions in limine are one way of giving the plaintiff an opportunity to win.
Saturday, December 5, 2015
What is Discovery in a Criminal Case?
A defendant in a criminal case will naturally be afraid of what could happen to him or her. Misdemeanor and felony charges carry the potential for jail and prison time. In addition, defendants face the possibility of future scrutiny in their employment prospects and personal reputation.
The first two questions usually asked by a defendant are: "What did I do? What evidence does the prosecution have?" The process by which a defense attorney obtains the evidence is called "discovery." Discovery is the opportunity for the defendant to find out what kind of case the prosecution will present against the defendant.
During the pre-trial stage of a case, discovery is undertaken by both the defense attorney and prosecuting attorney. Both sides are required to discuss their case. There are not supposed to be surprises at trial. Legal dramas on television and movies are not representative of a majority of real cases.
Discovery is done informally, at first. Sometimes the Judge presiding over the case will have to be involved to handle disputes. Common disputes arise when a defense attorney has reason to believe that the prosecution has not handed over particular evidence. The prosecution must turn over certain evidence, such as:
Certain legal principles are supposed to protect a defendant as well. For example, "Brady" violations occur when a prosecutor intentionally withholds exculpatory evidence. Recently, the United States Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, criticized California state judges for allowing prosecutorial misconduct. He said that there is an "epidemic of Brady violations..."
Regardless of misconduct or not, it is important for defendants to be aware of their rights. Discovery is important to a case. Sometimes it will lead to a defense verdict. Other times it can help facilitate a favorable plea deal. If you have been charged with a crime, it is important to consult with an attorney. Evidence and its impact on your case can be discussed.
The first two questions usually asked by a defendant are: "What did I do? What evidence does the prosecution have?" The process by which a defense attorney obtains the evidence is called "discovery." Discovery is the opportunity for the defendant to find out what kind of case the prosecution will present against the defendant.
During the pre-trial stage of a case, discovery is undertaken by both the defense attorney and prosecuting attorney. Both sides are required to discuss their case. There are not supposed to be surprises at trial. Legal dramas on television and movies are not representative of a majority of real cases.
Discovery is done informally, at first. Sometimes the Judge presiding over the case will have to be involved to handle disputes. Common disputes arise when a defense attorney has reason to believe that the prosecution has not handed over particular evidence. The prosecution must turn over certain evidence, such as:
- witness names and the content of their testimony
- "real evidence," or physical evidence
- evidence that is favorable to the defendant, i.e. "exculpatory"
- felony history of any witnesses for purposes of impeachment
- any "relevant" recorded or written statements
Certain legal principles are supposed to protect a defendant as well. For example, "Brady" violations occur when a prosecutor intentionally withholds exculpatory evidence. Recently, the United States Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, criticized California state judges for allowing prosecutorial misconduct. He said that there is an "epidemic of Brady violations..."
Regardless of misconduct or not, it is important for defendants to be aware of their rights. Discovery is important to a case. Sometimes it will lead to a defense verdict. Other times it can help facilitate a favorable plea deal. If you have been charged with a crime, it is important to consult with an attorney. Evidence and its impact on your case can be discussed.
Friday, November 20, 2015
What is a Settlement in a Personal Injury Case?
Personal injury lawyers like to spit out legal terms. "We sent the defense a 998 offer to compromise." "I warned the Plaintiff's attorneys that I will have to file a MSJ." "Before the CMC, I need to run down to central to file an Oppo." I know. It can get confusing.
Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.
A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.
Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.
But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.
As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?
Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.
After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.
Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.
The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.
Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.
Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision.
Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.
A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.
Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.
But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.
As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?
Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.
After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.
Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.
The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.
Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.
Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision.
Saturday, November 7, 2015
Factual Innocence Motion & Sealing an Arrest Record
Los Angeles County Sheriff Deputies beat and framed Gabriel Carrillo while he was in custody in 2011. During a routine visit with an inmate, an oral argument took place between visitor Carrillo and the sheriff deputies. Things escalated when the deputies took Carrillo into custody and assaulted him. The deputies claimed that Carrillo had tried to fight them. When photographs showed injuries to Carrillo's hands -- indicating that he was beaten while handcuffed, battery charges against Carrillo were dropped.
Now, 4 years later, Mr. Carrillo was able to get a "factual innocence" motion granted. This goes far beyond an "expungement." Mr. Carrillo will now have his arrest record sealed and destroyed. A Los Angeles Superior Court has ruled that there was no reasonable cause to believe that he committed the offense for which he was arrested.
Individuals who have been convicted of a crime in Los Angeles County will routinely call attorneys about cleaning up their records. It makes sense. In a competitive job market, it is good to have a limited criminal background. Most, if not all, are unaware of the differences between expungements and what Mr. Carrillo had received.
To explain clearly, it is important to start from the beginning. If there is probable cause for an arrest, and a person is arrested, he or she will have an arrest record, meaning that a criminal background check will show that an arrest took place.
A criminal charge is usually then initiated. It is separate from an arrest. Once a criminal charge has been filed, a person's background will note the charge and the result of that charge. It could be a dismissal -- should someone be successful in a motion to suppress, for example, or it could be a conviction. No matter what, however, there will be information available during a background check.
An expungement, as explained in other blog posts, dismisses the conviction. It also gives the formerly convicted person certain rights. It prevents discrimination. An expungement does not get rid of an arrest or charge on a person's criminal history. It simply withdraws the guilty plea and dismisses the case.
A "factual innocence motion" does get rid of a person's criminal history. Pursuant to California Penal Code section 851.8, should a person win a Petition to Seal and Destroy an arrest record, the California Department of Justice will seal the arrest. It will not show up on a criminal background check. After three years, it gets destroyed.
The burden is extremely high for a Petition to Seal and Destroy. Factual innocence must be proven, which is a tough standard. A person must show that there was no "reasonable cause" to believe that a crime was committed. Again, it is difficult.
Nevertheless, it is a good option for individuals like Mr. Carrillo. If you, the reader, family member, or friend are unsure on how to proceed in cleaning up a criminal background, it is best to contact a criminal defense attorney. He or she will likely be able to answer questions that are specific to each person.
Now, 4 years later, Mr. Carrillo was able to get a "factual innocence" motion granted. This goes far beyond an "expungement." Mr. Carrillo will now have his arrest record sealed and destroyed. A Los Angeles Superior Court has ruled that there was no reasonable cause to believe that he committed the offense for which he was arrested.
Individuals who have been convicted of a crime in Los Angeles County will routinely call attorneys about cleaning up their records. It makes sense. In a competitive job market, it is good to have a limited criminal background. Most, if not all, are unaware of the differences between expungements and what Mr. Carrillo had received.
To explain clearly, it is important to start from the beginning. If there is probable cause for an arrest, and a person is arrested, he or she will have an arrest record, meaning that a criminal background check will show that an arrest took place.
A criminal charge is usually then initiated. It is separate from an arrest. Once a criminal charge has been filed, a person's background will note the charge and the result of that charge. It could be a dismissal -- should someone be successful in a motion to suppress, for example, or it could be a conviction. No matter what, however, there will be information available during a background check.
An expungement, as explained in other blog posts, dismisses the conviction. It also gives the formerly convicted person certain rights. It prevents discrimination. An expungement does not get rid of an arrest or charge on a person's criminal history. It simply withdraws the guilty plea and dismisses the case.
A "factual innocence motion" does get rid of a person's criminal history. Pursuant to California Penal Code section 851.8, should a person win a Petition to Seal and Destroy an arrest record, the California Department of Justice will seal the arrest. It will not show up on a criminal background check. After three years, it gets destroyed.
The burden is extremely high for a Petition to Seal and Destroy. Factual innocence must be proven, which is a tough standard. A person must show that there was no "reasonable cause" to believe that a crime was committed. Again, it is difficult.
Nevertheless, it is a good option for individuals like Mr. Carrillo. If you, the reader, family member, or friend are unsure on how to proceed in cleaning up a criminal background, it is best to contact a criminal defense attorney. He or she will likely be able to answer questions that are specific to each person.
Saturday, October 24, 2015
Injuries at a Hollywood Nightclub Could Lead to a Lawsuit
The Los Angeles Times and other local media have reported a homicide at Cashmere nightclub in Hollywood. The victim was DJ Steeze, who may have been involved in a brawl that occurred in the dance club. Police and city officials are concerned with the 21% increase of violent crimes, which can be attributed to drunk patrons pouring out into the streets.
Violence occurring in drinking establishments is nothing new. One can watch a classic Western to conclude that. However, the uptick of people visiting Hollywood clubs increases the risk of harm to visitors. Since 2000, Hollywood residency increased threefold. There is a greater chance of conflict.
A person injured, or even killed, at a nightclub could have legal recourse. Indeed, there are many different legal theories that could be advanced should there be facts that support it.
Most injury cases against nightclubs are brought under the umbrella of negligence. That is, the plaintiff is able to prove that a duty was owed to them, there was a breach of that duty by the nightclub, and as a result of that breach, injury occurred to the plaintiff.
Negligence could be framed in different arguments. For example, some cases involve security personnel, or bouncers. When escorting patrons out, the bouncers get too aggressive or assault the patrons without cause. Those bouncers may lack the required licensing or training to be employed. The club potentially could be held liable for employing individuals who are not qualified to hold a position that could result in injury to guests.
There are other examples. Municipal ordinances require that businesses comply with safety regulations. Sometimes a club may not have the required lighting. Other times a club may exceed the maximum occupancy of a building, which makes things too crowded and dangerous for invitees. An exhaustive investigation should be done after an incident because oftentimes protocol was not properly followed.
If someone is injured at a nightclub, it is important that he or she seek the medical attention that he or she needs. Proper treatment should be a priority. Then, the injured person should contact an attorney for a consultation. It is possible that medical bills could be recovered, in addition to pain and suffering, lost earnings, and future lost earnings and/or medical treatment.
Given the news, a person should always be careful when going to a nightclub. One should always remain vigilant and aware of his or her surroundings. With that, be safe and thank you for reading.
Violence occurring in drinking establishments is nothing new. One can watch a classic Western to conclude that. However, the uptick of people visiting Hollywood clubs increases the risk of harm to visitors. Since 2000, Hollywood residency increased threefold. There is a greater chance of conflict.
A person injured, or even killed, at a nightclub could have legal recourse. Indeed, there are many different legal theories that could be advanced should there be facts that support it.
Most injury cases against nightclubs are brought under the umbrella of negligence. That is, the plaintiff is able to prove that a duty was owed to them, there was a breach of that duty by the nightclub, and as a result of that breach, injury occurred to the plaintiff.
Negligence could be framed in different arguments. For example, some cases involve security personnel, or bouncers. When escorting patrons out, the bouncers get too aggressive or assault the patrons without cause. Those bouncers may lack the required licensing or training to be employed. The club potentially could be held liable for employing individuals who are not qualified to hold a position that could result in injury to guests.
There are other examples. Municipal ordinances require that businesses comply with safety regulations. Sometimes a club may not have the required lighting. Other times a club may exceed the maximum occupancy of a building, which makes things too crowded and dangerous for invitees. An exhaustive investigation should be done after an incident because oftentimes protocol was not properly followed.
If someone is injured at a nightclub, it is important that he or she seek the medical attention that he or she needs. Proper treatment should be a priority. Then, the injured person should contact an attorney for a consultation. It is possible that medical bills could be recovered, in addition to pain and suffering, lost earnings, and future lost earnings and/or medical treatment.
Given the news, a person should always be careful when going to a nightclub. One should always remain vigilant and aware of his or her surroundings. With that, be safe and thank you for reading.
Wednesday, October 7, 2015
Recent Data Shows California's Realignment Doesn't Harm Public Safety
A few years ago, California passed a number of bills related to criminal justice reform. Due to prison overcrowding, and constitutional concerns, Governor Brown led the charge to reduce the bloated prison population. Propositions 36 and 47, which dealt with the punitive three-strikes law and over-sentencing of non-violent theft/drug crimes respectively, were passed with overwhelming majorities.
An older law, passed in 2011, also helped reverse the rapid increase of state inmates. "Realignment" put non-serious, non-violent, non-sex offenders in county jail rather than state prisons. Instead of being put into the care of parole, these non-violent inmates were placed into the custody of county-based probation programs. This helped the overloaded parole board. Also, violations resulted in county jail terms, rather than prison terms.
Now, the San Diego Tribune is reporting that Realignment does not harm safety. Since Realignment, crime has remained relatively low. Both in 2013 and 2014, crime rates dropped. Property and violent crimes are now at historic lows. Some experts believe that it is too early to make judgments, but overall, the data shows a trend downwards in violent crimes.
Reduction in crime rates is not exclusive to Los Angeles or California. Throughout the United States, crime has been down. The FBI data shows crime rates at 1960 levels. All of this is good news for those who advocate for criminal justice reform. Reducing prison populations will save money, combat recidivism, and put convicts in a position where they can re-assimilate.
Communities have been damaged enough from aggressive policies of over-incarceration. Let's hope that the data continues to reflect the benefits of changing how we, as a state, handle crime.
An older law, passed in 2011, also helped reverse the rapid increase of state inmates. "Realignment" put non-serious, non-violent, non-sex offenders in county jail rather than state prisons. Instead of being put into the care of parole, these non-violent inmates were placed into the custody of county-based probation programs. This helped the overloaded parole board. Also, violations resulted in county jail terms, rather than prison terms.
The opposition to Realignment had rational arguments, but so far their fears and concerns have been proven wrong. Despite their claims that crime would surge, citizens of California knew that the status quo was hurting their state and took the purported risk. It was worth it.
Now, the San Diego Tribune is reporting that Realignment does not harm safety. Since Realignment, crime has remained relatively low. Both in 2013 and 2014, crime rates dropped. Property and violent crimes are now at historic lows. Some experts believe that it is too early to make judgments, but overall, the data shows a trend downwards in violent crimes.
Reduction in crime rates is not exclusive to Los Angeles or California. Throughout the United States, crime has been down. The FBI data shows crime rates at 1960 levels. All of this is good news for those who advocate for criminal justice reform. Reducing prison populations will save money, combat recidivism, and put convicts in a position where they can re-assimilate.
Communities have been damaged enough from aggressive policies of over-incarceration. Let's hope that the data continues to reflect the benefits of changing how we, as a state, handle crime.
Saturday, September 19, 2015
Motorcycle Accidents Have Become More Frequent and More Dangerous
An article from the Inland Empire pointed out that motorcycle
accidents are occurring more often. It is obviously very dangerous for
those who ride motorcycles, but it is also dangerous for everyone on the
road. Incidents have occurred where drivers of regular cars suddenly
swerve lanes to try to avoid a disabled motorcycle.
Motorcycles are smaller, lighter in weight, and afford less protection, i.e. airbags, seat-belts, protective engineering. People involved in motorcycle accidents die at a much larger rate than people involved in a motor vehicle accident. Cars are larger and safer. It goes without saying that motorcycle helmets are a must. The National Highway Traffic Safety Association (NHTSA) provided interesting statistics:
(1) Helmets, when worn, reduce the risk of death by 29 percent;
(2) Helmets, when worn, are 67 percent effective in preventing traumatic brain injury; and
(3) From 1984 to 1995, helmets saved the lives of more than 7,400 motorcyclists.
Besides wearing helmets, motorcyclists can remain cautious and attentive. Indeed, a lot of accidents involving motorcycles are caused by sleeping motorcyclists! The same laws for motor vehicles are applicable to motorcycles. Use common sense and be careful.
But what should you do if you, a motorcycle rider, are involved in an accident because of the fault of a motor vehicle? You should contact a personal injury attorney and open a claim immediately. It is important that everything is documented properly. Take pictures, make sure that the police are called to write a report, and be mindful of your pain.
Moreover, some bikes are custom, meaning that it is important for the owner to collect evidence of the value of the motorcycle if it is damaged. The property damage claim that will be made usually is disposed of prior to the bodily injury claim. Also, do not hesitate to contact your attorney with questions; it is important to communicate on a regular basis.
Like all accidents, motorcycle accidents are potentially harmful, inconvenient, and time-consuming. Motorcyclists should be ready to seek the advice of the attorney if necessary. But remember: wear a helmet, it can save your life.
Motorcycles are smaller, lighter in weight, and afford less protection, i.e. airbags, seat-belts, protective engineering. People involved in motorcycle accidents die at a much larger rate than people involved in a motor vehicle accident. Cars are larger and safer. It goes without saying that motorcycle helmets are a must. The National Highway Traffic Safety Association (NHTSA) provided interesting statistics:
(1) Helmets, when worn, reduce the risk of death by 29 percent;
(2) Helmets, when worn, are 67 percent effective in preventing traumatic brain injury; and
(3) From 1984 to 1995, helmets saved the lives of more than 7,400 motorcyclists.
Besides wearing helmets, motorcyclists can remain cautious and attentive. Indeed, a lot of accidents involving motorcycles are caused by sleeping motorcyclists! The same laws for motor vehicles are applicable to motorcycles. Use common sense and be careful.
But what should you do if you, a motorcycle rider, are involved in an accident because of the fault of a motor vehicle? You should contact a personal injury attorney and open a claim immediately. It is important that everything is documented properly. Take pictures, make sure that the police are called to write a report, and be mindful of your pain.
Moreover, some bikes are custom, meaning that it is important for the owner to collect evidence of the value of the motorcycle if it is damaged. The property damage claim that will be made usually is disposed of prior to the bodily injury claim. Also, do not hesitate to contact your attorney with questions; it is important to communicate on a regular basis.
Like all accidents, motorcycle accidents are potentially harmful, inconvenient, and time-consuming. Motorcyclists should be ready to seek the advice of the attorney if necessary. But remember: wear a helmet, it can save your life.
Friday, September 4, 2015
DUI Checkpoints Are Legal
The other day an individual challenged his DUI in court without the representation of an attorney. In open court, in front of the other defendants and attorneys, he started to yell at the presiding judge. "They violated my constitutional rights!" The judge was annoyed but let the man finish. "A DUI checkpoint is unconstitutional! There was no probable cause to stop me!" After he was done, the judge responded: "This is an arraignment. All you need to do is enter a plea of guilty, no contest, or not guilty."
Besides the procedural mistake (one does not argue the merits of a case at an arraignment), the pro per defendant was wrong on the law. DUI checkpoints are not unconstitutional. To the contrary, both the United States and California Constitutions' allow DUI checkpoints.
The rationale behind "mobile" or "roadblock" DUI checkpoints lies in public safety. Due to the state's strong interest in preventing injury from DUI accidents, minor inconveniences are allowed. This does not mean that law enforcement can use checkpoints as an excuse to perform general or broad investigations. Police officers must follow strict guidelines when conducting a DUI checkpoint.
California has enacted legislation with respect to checkpoints. California Vehicle Code section 2814.2, subsection (a) states: "[a] driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop."
Nevertheless, a California Supreme Court case in 1987 (Ingersoll v. Palmer), enumerated the guidelines that must be followed by officers executing a DUI checkpoint. They are as follows:
a) Supervising officers must make all operational decisions;
b) Criteria for stops must be neutral;
c) Checkpoint must be reasonably located;
d) Adequate safety measures must be taken;
e) Good judgment must be used when determining the checkpoint's time and duration;
f) There must be sufficient notice to drivers that the checkpoint is for official purposes;
g) Drivers must only be stopped for a minimal amount of time; and
h) Checkpoints should be publicly advertised in advance of execution.
If these guidelines are not followed, it is possible that a DUI charge, arising from a checkpoint, could be challenged. There are never guarantees, however.
A checkpoint also does not mean officers' can perform an extensive investigation without probable cause. A brief stop can lead to an investigation when there is evidence, sufficient probable cause, of intoxication --for example, when a person has alcohol on his breath, blurred eyes, or slurred speech.
In summary, on holiday weekends, like Labor Day Weekend, make sure that you avoid situations where you will have to drink and drive. Use a designated driver or taxi service if you drink. It is not only against the law, it is extremely dangerous. With that, have a good weekend!
Besides the procedural mistake (one does not argue the merits of a case at an arraignment), the pro per defendant was wrong on the law. DUI checkpoints are not unconstitutional. To the contrary, both the United States and California Constitutions' allow DUI checkpoints.
The rationale behind "mobile" or "roadblock" DUI checkpoints lies in public safety. Due to the state's strong interest in preventing injury from DUI accidents, minor inconveniences are allowed. This does not mean that law enforcement can use checkpoints as an excuse to perform general or broad investigations. Police officers must follow strict guidelines when conducting a DUI checkpoint.
California has enacted legislation with respect to checkpoints. California Vehicle Code section 2814.2, subsection (a) states: "[a] driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop."
Nevertheless, a California Supreme Court case in 1987 (Ingersoll v. Palmer), enumerated the guidelines that must be followed by officers executing a DUI checkpoint. They are as follows:
a) Supervising officers must make all operational decisions;
b) Criteria for stops must be neutral;
c) Checkpoint must be reasonably located;
d) Adequate safety measures must be taken;
e) Good judgment must be used when determining the checkpoint's time and duration;
f) There must be sufficient notice to drivers that the checkpoint is for official purposes;
g) Drivers must only be stopped for a minimal amount of time; and
h) Checkpoints should be publicly advertised in advance of execution.
If these guidelines are not followed, it is possible that a DUI charge, arising from a checkpoint, could be challenged. There are never guarantees, however.
A checkpoint also does not mean officers' can perform an extensive investigation without probable cause. A brief stop can lead to an investigation when there is evidence, sufficient probable cause, of intoxication --for example, when a person has alcohol on his breath, blurred eyes, or slurred speech.
In summary, on holiday weekends, like Labor Day Weekend, make sure that you avoid situations where you will have to drink and drive. Use a designated driver or taxi service if you drink. It is not only against the law, it is extremely dangerous. With that, have a good weekend!
Subscribe to:
Posts (Atom)