Criminal Defense
Misdemeanors and Felonies
Let’s first start with a discussion about what kind of criminal violations exist. The first category is misdemeanors. This is a relatively minor (though still very serious) offense. It includes all minor traffic violations, such as speeding or improper lane change, and also other things like theft of less than $1,000 (This amount may vary between different states. Please contact us about your particular circumstance). DUI is USUALLY a misdemeanor, though there are some exceptions. The second category of crimes are know as felonies. These are serious crimes, such as murder, rape, and arson. These are crimes for which you should expect to serve a considerable prison sentence if you are either found guilty or if you plead to it.
The Initial Encounter With Police
The most important thing to remember whenever you are dealing with the police is that they cannot arrest you for anything without probable cause. Probable cause is based on the facts and circumstances surrounding the incident. A key distinction is that police do not need probable cause to, for example, pull you over or to ask you questions. In order for the officer to pull you over all they need is what’s called a reasonable suspicion. This is also heavily dependent on the facts and circumstances around your case. Common reasons to pull a car over include headlights and taillights that are not functioning, so check them regularly.
The Arrest and Early Procedure
Once you have been arrested, you will be taken to the police station where they take a picture (mugshot), fingerprint you, take your belongings, and then place you in a cell. Typically, if an arrest is executed pursuant to a warrant, the state has up to 72 hours for an initial appearance to be scheduled. If you were arrested in the absence of a warrant, the state has 48 hours to have an initial appearance scheduled. At the initial appearance, you will find out if bail will be set and how much it will cost. For most crimes, you will receive a bail amount. There are a handful of circumstances in which bail is denied, but even then, you may be able to get bail if you can show that you are not a flight risk, have connections to the community, and are not a threat to commit additional crimes. You can post bond by either paying cash, contacting a bondsman, or posting property in an amount equal to or greater than the bail amount. It’s important to understand the consequences of this. If you post money or property to cover your bail, and you don’t show up to court, you will forfeit that money/property.
Arraignment and Motions Practice
Arraignment is a hearing at which you are formally read the charges you face. It is possible that you can waive formal arraignment, but it is an important aspect of the criminal process. We generally don’t recommend waiving it, because it provides an important opportunity to speak with the solicitor or the district attorney assigned to your case, to exchange discovery information possibly, or to potentially get a good plea deal from the prosecution, so that your case and the anxiety surrounding it will end. Either way, this process used to be more important than it really is today, but it is still a good opportunity for your attorney to try to handle your case and potentially even get it resolved. After the arraignment, an important deadline approaches. If you would like to file a motion to suppress evidence, it must be filed within ten days of your arraignment. It’s difficult to overstate the importance of this. If you don’t challenge the evidence that the state has, it is possible that it could be used against you. However, if you do file the appropriate motion prior to this deadline, you could get vital evidence the state has against you to be excluded from your trial and thereby increase your likelihood of an acquittal, or even get the charges against you dismissed.
Trial
This is the part of the process where you have an opportunity to defeat the charges you face. It is important to remember that the state has a high bar to clear to get a conviction. They must show that you committed the crime you were accused of beyond a reasonable doubt. If they don’t do that, you will be acquitted. The state has the burden of proof here. You don’t technically have to prove anything. However, you will have the opportunity to bring your own witnesses and evidence and cross examine those of the state.
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Personal Injury/Car Accident/Slip and Fall
The incident: try to remember as much about the incident as possible.Contact an attorney as soon as possible. Evidence is how cases are won, and it’s critical to collect as much as possible as shortly as possible after the incident. Try to collect the contact information of any witnesses, if you’re able. If you contact us, we will do it for you. These are key people we will want to speak with, to discuss the incident, and they may help win your case at trial.
Remember to seek medical attention if you are injured. It is important to start treatment immediately. Medical treatment will help prove that the incident occurred as you said it did. It is vital to your case that you maintain a consistent treatment record and follow the directions of your doctors. Failure to do so can lead to the conclusion that your injuries are not as bad or severe as you claim they are.
Insurance: An important aspect of automobile accidents and slip and fall cases is, whether, or how much insurance, the other driver has. The minimum car insurance in Georgia is what’s called a $25,000/$50,000 policy. In many accidents, this is a sufficient amount, however in some, it is not nearly enough. This is why having uninsured motorist insurance is so critical. It will protect you if the other driver did not have insurance or had low insurance amounts.
Med Pay: Med pay is a rider to your own automobile insurance policy which allows an injured individual to recover money from an accident from their own insurance carrier. They are reasonably priced additions to an insurance policy which could save you money out of your own pocket.
UM Coverage: Uninsured or Underinsured Motorist coverage is another rider to your own automobile insurance policy. This coverage is most useful in an accident in which the at-fault driver does not have sufficient coverage to compensate you for your injuries. In this case, a UM policy can provide a bridge to cover your injuries. Med Pay and UM coverage are useful, modestly priced additions to your automobile policy, which can provide meaningful supplements in the event of an injury.
Timeline of a Case: In Georgia, you must file your complaint within two years of the date of the accident. However, before you can file, you must serve the insurance company with a demand letter stating the amount you want to settle the case prior to trial. The typical timeline for an injury usually looks like this: injury, then emergency or urgent care treatment, then ongoing treatment to ensure that the injured party is as close to their pre-accident self as possible, then a demand letter is issued, then negotiation with the insurance company and opposing attorney, and finally, hopefully settlement. If not, then we move on to litigation and a jury trial.
Nature of a settlement: The components of a settlement involve what are called economic and non-economic losses or damages. Economic losses are those involving things that can be quantified – things like lost wages from being out of work, or doctor’s bills, or even mileage from driving to see the doctor. Non-economic losses are those losses which cannot be quantified – think things like pain and suffering, or the loss you might experience, if there’s a scar on your face, or loss of mobility in your shoulder. We take into account all of those factors, as well as things such as the inability to have a normal relationship with your spouse or family. Once we have made a total calculation of your damages, we negotiate with the insurance company to get that amount of compensation. This can range from thousands of dollars to millions of dollars. Contact us for a free compensation estimate.
Wills and Probate
A will is a document which enables you to distribute your property to the people or organizations of your choice. It also enables you to control how you are buried and grants some powers to your executor, the person responsible for carrying out your wishes. A will is a critical, perhaps the most critical, aspect of your estate plan.
Before we discuss how a will works, let’s discuss what happens if you don’t have a will. If you die without a will in Georgia, you are what we call intestate. It simply means without a will. If that happens your estate is governed by the laws of intestacy, which will dictate how your property is distributed. Those laws will control everything, including your home, your personal property, and most importantly for some, what happens with your children. This is why it is so critical to have a will, even if you’re someone who doesn’t think you need one. For many people, there is some important keepsake that they want someone to have, or they have someone who they would like to care for their children.
So, how do you set up a will? The first thing is to decide how you want your property to be distributed. Perhaps you have heirloom china you want to pass to a particular person, or perhaps you have a coin collection you want to give to someone. These things may have monetary value, but more important is their sentimental value. You want to be able to get the things that mean the most, to your friends and family. It’s important to write out a list of what you have and how you would like for those things to be distributed. Another thing to consider is what you would like to have done with your home. Perhaps you would like for your family to continue living there, or perhaps you’d like it to go to someone else. Consider whether there’s a mortgage on it, how much that mortgage is, and whether the person you’re giving it to can afford it. If they cannot afford a mortgage, you may want to secure a life insurance policy with that person as a beneficiary for the purpose of paying the mortgage.
Another thing to consider is who you want to care for your minor children should something happen to you. This person is known as a guardian. You have the ability to appoint this person in your will. It is important to discuss with the person you appoint as guardian, the responsibilities of holding that position. You should always have a backup in mind too, if that person dies or otherwise changes their mind. In fact, have a backup in mind for everything in your will, including the executor and beneficiaries. The next thing to consider is who you want to have serve as your executor. An executor is the person who is responsible for distributing your property according to your will. Pick a person that you trust will do what you want them to do, because they will have access to all your property. Have a backup in mind too if the person you chose, can’t or won’t serve.
Other things to consider in creating your estate plan. Things like life insurance or bank accounts or 401(k) accounts can pass through probate if a beneficiary is not named in those documents. However, these items don’t need to pass through probate if you appropriately identify beneficiaries with the financial institution that holds them. This is important for a number of reasons. First, not going through probate is faster. Your beneficiary will get the asset more quickly than they likely would if it passed through probate. You may hear people selling you on keeping things out of probate, because it’s slow and expensive, and to some degree that’s true, but in Georgia our process is relatively quick and inexpensive. However, it’s still important to get things out of your estate for other reasons, and one of those is to keep the asset away from creditors.
Another way to keep assets out of probate is to create a trust, which is simply an instrument which gives title to a piece of property to a third property but another person retains use and possession of it. These can get complicated and most people probably don’t require one, but it is something to consider. A trust avoids probate because the property is owned by the trust and not you as an individual anymore.
Probate
You will need to fill out the proper documents to probate a will and provide notice to the proper parties. A petition to probate a will will be either in common or solemn form. The distinction between the two holds legal consequences that are very important, and we suggest you contact us to discuss the petition that will best fit your circumstances. The probate process can be quick, or it could be slowed down, if arguments arise between the heirs.
Advance Directive for Healthcare
Formerly, this document was known as a living will. It covers medical decisions that will be made on your behalf, when you cannot make them yourself. This could be important if you are in a car accident, a coma, or are going into surgery. In your medical directive, you can choose whether you want to be placed on life support, whether you will be resuscitated if your heart stops, and whether you will receive food, water, and medicine. For women, you also will make decisions in advance about your unborn child, if you are pregnant and in a coma or serious accident. You will also appoint someone to make other less critical medical decisions on your behalf if you can't make them.
Durable Power of Attorney
A power of attorney is a document that allows someone to make financial and other important decisions on your behalf. When assigning someone as your attorney in fact, you must have absolute trust in them, as they will have access to your money, property, and finances. The document is called a durable power of attorney, because it remains active even if you are not able to make decisions for yourself, such as being in a coma or in surgery. Among other things, the attorney in fact can buy, sell, and mortgage real estate, write checks, use credit cards, withdraw money from bank accounts, pay bills, make decisions about inheritances, and change or withdraw money from a 401k, IRA, or other retirement account. You can pick and choose which aspects of your finances an attorney in fact may have in your power of attorney.
Foreclosure
Foreclosure is a process in which a lender with a secured interest in a piece of property can sell that property to satisfy the outstanding debt. If you borrowed money to purchase real estate, you almost certainly signed a mortgage, security deed, or deed of trust, which is what creates the lender’s interest in the property. The mortgage outlines the process that the lender is required to follow in order to conduct the foreclosure sale.
Non-Judicial Foreclosure in Georgia
The first thing that must be present is noncompliance with the loan. Usually, noncompliance is in the form of nonpayment on the mortgage. The borrower has fallen behind on payments. When that happens, the lender sends a default letter stating the exact reason for the default and what must be done to cure the default. After a period of time, usually 30 days, the lender then can accelerate the debt and make the entire amount outstanding on the loan due. Then they must send you a copy of the notice of sale not less than 30 days prior to the sale. That same notice must also run in the legal organ – a news paper that you probably won’t read and haven’t heard of – four times not less than 7 days apart. After that has run, the lender can conduct the foreclosure sale. They always happen on the first Tuesday of every month at the Superior Court of the County in which the property is located. Because there is no judge or jury involved, the process can happen very quickly. In other states, such as Florida, a lawsuit is required and an order from a judge must issue before the sale can be conducted.
Collections
First, let’s distinguish the collections process from the process of getting a judgment. In the case of collections, we assume that the plaintiff has gotten a judgment against the defendant. Once that happens, the plaintiff has to go through a process in order to get paid. Generally, a defendant has 30 days after the entry of a judgment to pay the plaintiff what he owes him. The first thing a plaintiff can do is get a Writ of Fi Fa issued against the defendant, which is a lien on all property the defendant has in the county that issued the judgment. A plaintiff can get a Writ of Fi Fa recorded in any county in Georgia by having a second original issued and then recording it in the county where you believe the defendant owns property. The next part is issuing post-judgment interrogatories. The usual reason for issuing these is to gather information about what kind of assets the defendant has, where he works, what bank accounts he has, etc. This is useful information because it allows a plaintiff to conduct a garnishment on the defendant, and in order to do that, you have to know certain information about the defendant. The interrogatories are answered under oath, and if they are not answered, the plaintiff can eventually have the defendant incarcerated, because the defendant is held in contempt of court for not answering the interrogatories. The garnishment comes in two forms: the one time garnishment and the continuing garnishment. The continuing garnishment is the one most people have heard of and it allows the plaintiff to get at a person’s income before he gets it from his employer. The one time garnishment allows a plaintiff to capture assets from a bank or other person or business who is holding or owes the defendant money. The continuing garnishment runs for six months and must be renewed after that.
Bankruptcy
Bankruptcy is a process that allows a person to have their debts either forgiven or reorganized. For individuals, the two types of bankruptcies are chapter 7 and chapter 13. Chapter 7 is a one time forgiving of all debts in exchange for turning over all assets to a person called a trustee. The only people who can qualify earn less than the median income amount or can pass the means test, in which certain calculations are done in order to find out whether you can pay any of your debts. Click here to arrange your free means test calculation. If you can, you will have the option of a chapter 13 bankruptcy in which you will be required to make payments during the life of the bankruptcy. At the end of the term, your remaining debts are forgiven. It is important to understand that you can only file for a bankruptcy once in a seven year period and that it will damage your credit. But it will also stop all collections, including the collections process above and also a foreclosure.
Divorce
Typically there are four main aspects to a divorce action:
Custody of children
The court will look at the best interest rule, to determine what will benefit the children most and which parent can provide that. Factors considered include the choice of the child, the school, closeness with other siblings, whether other family is nearby, such as grandparents, cousins, aunts, and uncles, which parent provided most of the care and support for the children. Custody may be granted jointly, where the children spend time with each parent. If there is evidence of physical abuse, substance abuse, or other trouble, one parent may only get visitation with the children.
Child support
When determining child support, the court will consider income, health insurance, child care costs, and deviations due to exceptional costs incurred by either party. If one of the litigants does not work, the court will assign them imputed income, when calculating child support.
Alimony
Alimony is awarded when one of the litigants in a divorce has been removed from the workforce in order to care for the family during the time of the marriage. The court will look at the education of that spouse, the time it would take to get that spouse reacclimated to working daily or up to date on education and award alimony in an amount and for a long enough time to make that possible. Many other factors are considered in alimony calculations, and you can contact us for a free consultation.
Property (Real and Personal)
In a divorce, property, money, and debts are divided equitably. Property that was acquired in an individuals name prior to marriage, is considered separate property. Property acquired during the marriage is marital property. Only the marital property is divided in a divorce. This distinction varies from state to state, so contact us to make sure you know how this will apply in your circumstance. When awarding the marital residence, the court will look at when the property was acquired, how much equity there is, whether kids are in school in that district, whether the custodial parent can afford to stay there. The court may require one spouse to quitclaim their interest to the other. The court may also require the property to be refinanced. Last, the court will divide personal property, which includes all of the possessions, the bank accounts, the retirement accounts, and the debts.
Timing of a divorce in Georgia
A divorce follows the following timeline: filing of the petition of divorce, service of summons and petition, answer, discovery, temporary hearing, and final hearing. During discovery, the parties will request from each other income information, bank info, tax filings, 401(k) values, among other things. This is the chance to dig up all of the facts the other spouse doesn't want anyone to know about.
Temporary hearing
This is a tool that can be used to get the following worked out prior to trial: child support, custody, and alimony. The hearing also sets the stage for how things will look at trial and in the final divorce decree.
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