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What Happens if a Contract Falls Through?

Business Lawyer

In the most ideal world, agreements would be made and both parties would be happy with their choice. Ideally, no disputes would come up and each party would benefit from the contract to the fullest extent. If you are in need of legal services regarding an agreement gone wrong, you can contact a breach of contract attorney for help. They understand that in the reality, business delays occur, financial problems arise and other events can prevent a contract from being carried out as promised.

Below we answer some common questions about what a breach of contract is, and what happens if an agreement falls through. For additional questions, please contact a law firm.

What is the Definition of a Breach of Contract?

When making a business contract, there are specific obligations both parties must fulfill. In legal terms, any party that fails to uphold their end of the agreement, is committing a breach of contract. A breach can also occur if a party fails to fulfill a duty within a time frame listed in the contract.

What Happens After a Breach is Committed?

If there is an alleged breach of contract, one of the parties can attempt to enforce the terms, or seek compensation for any loss of finances. If informal attempts at solving the problem do not work, then a dispute can be handled through a lawsuit. If both parties are able to solve the issues through mediation, it can prevent the stress and expenses of a lawsuit. Out of court attempts at fixing disagreements over a contract, can be referred to as alternative dispute resolution.

Damages for a Breach of Contract

A breach of contract can be remedied through awarding payment of damages. There are four different types of damages, and are briefly defined as the following:

  1. Punitive Damages – intended to hold the breaching party accountable for their actions through having to make payments to the non-breaching party.
  2. Compensatory Damages – aims to put the non-breaching party in a position they normally would have been, if the breaching party had fulfilled their agreements.
  3. Nominal Damages – if there was no financial loss due to the breach of contract, the court may issue a small award of a few dollars to the non-breaching party.
  4. Liquidated Damages – an amount both parties agreed upon in the contract that the non-breaching party can collect in the event their end is not upheld.

We do not recommend handling a breach of contract alone. Due to the complexity of contracts, most cases can benefit from representation of a breach of contract attorney who can explain how a business contracts lawyer in Sacramento, CA may help.

 


 

Thank you to our friends and contributors at the Yee Law Group for their insight into business law and breach of contracts.

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How Do Judges Determine the Amount of Bail?

If you have been arrested for a criminal offense, chances are that a judge may require you to post money bail in order to get out of jail. While judges do have the option to permit you to be released without posting a money bail, often called release on “personal recognizance,” many judges will require payment of some money bail in order for you to be released. Here are the factors that the judge will likely consider in setting the amount of the bond:

  1.     The seriousness of the alleged offense.

The judge will consider the seriousness of the alleged crime. For example, bail on a murder case is going to be significantly different than on a misdemeanor shoplifting case.

  1.     Prior criminal record.

The judge will take into account your prior criminal history, no matter how old. This generally includes offenses committed as a juvenile.

  1.     History of appearing in court.

If you have a history of failing to appear in court on prior cases, your bond will likely be set significantly higher.

  1.     Flight to avoid prosecution.

If you left the state or hid from the police in order to avoid prosecution, and they had to come after you for this arrest, it’s likely that your bail is going to be set fairly high.

  1.     History of substance abuse or addiction.

You don’t have to answer any questions about drug or alcohol use or addiction when you’re in court, but if your criminal history indicates a problem with substance abuse or addiction, bond will likely be set higher.

  1.     Mental condition.

If you have documented mental health concerns or a reputation for dangerousness, your bond will be set at a higher amount.

  1.     Probability of conviction.

The judge will consider the strength of the evidence against you. The stronger the evidence, the higher the bond.

  1.     Employment status.

Being employed is a bonus. Employment will likely result in the judge setting a lower bond.

  1.     Financial history.

The judge will consider your financial history for the purpose of determining whether you have the ability to post money bail. If you are indigent, the judge shouldn’t be punishing you and keeping you in jail simply because you are poor.

  1.  Ties to the community.

The judge will consider your ties to the community, including factors such as whether there are community members who will vouch for you, family ties to the area, and length of residence. The more ties to the community that you have, the lower the judge is likely to set your bail.

If you are going to be arraigned on criminal charges, you should contact an attorney, like a criminal defense lawyer Grand Rapids, MI looks to, to discuss the bond factors in your case.

 


 

Thanks to our friends and contributors from Blanchard Law for their insight into criminal defense.

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Tips for Getting Hired With a Criminal Record

A criminal conviction can follow you around long after you’ve finished a prison or probation sentence. Having a conviction on your record can make it especially more difficult to obtain employment. Many employers do background checks these days and may be weary about hiring individuals without clean backgrounds. However, that doesn’t mean that all hope is lost. Although you may have to jump through more hoops, it’s still possible to get a job. Here are some tips for getting hired with a criminal record:

Tell the Truth

If you have a criminal conviction on your record, you may feel embarrassed about revealing it to a potential employer. You know how just how judgmental people can be toward those with criminal records and don’t want that sort of thing to jeopardize your chances of getting a job. However, you should never lie about your criminal background. If you lie to an employer about your criminal record and he or she finds out about it later through a background check, you most certainly won’t get hired.

Be Brief

While it’s important to tell the truth about your conviction, you should be careful about revealing too much information. Just tell the employer how you got in trouble in the first place and what you got convicted of. If you go into too much detail, it could backfire on you.

Don’t Make Excuses About What You Did

The last thing an employer wants to hear when questioning you about your criminal background is an excuse. Instead of telling the employer you were young and naive or that someone talked you into committing the crime, accept responsibility for what happened.

Focus on the Positive

When asked about your criminal history try to focus on the positive as much as possible. For example, if more than 10 years have passed since you were convicted and you’ve stayed out of trouble since then, mention that to the employer. Also, talk about how you’ve worked to improve your life since then and what kind of accomplishments you’ve made.

Ask for Letters of Recommendation

If you bring letters of recommendation from respectable people, it may improve your chances of getting hired. For example, if you did a good job for your last employer, don’t hesitate to ask him or her to write a letter of recommendation that highlights your strengths, such as your punctuality and willingness to work hard.

Consider Expunging or Sealing Your Record

If you don’t want your criminal record following you around forever, it may be a good idea to talk to a criminal attorney about getting your record expunged or sealed. He or she can look into the details of your case and determine if you are eligible for either option. If your case is eligible for sealing or expungement, a criminal defense lawyer State College, PA residents rely on can help you with every step of the process.

Many criminal attorneys offer free initial consultations, so there is no risk to setting up a meeting with one.

 


 

Thank you to our friends and contributors at De Boef Lucchesi, P.C. for their insight into criminal charges.

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How to Simplify Your Executor’s Job

Getting named the executor of an estate can be a big honor. It shows that you trusted a person enough to put him or her ahead of managing your affairs when you can’t. Being an executor is also a huge responsibility that involves a lot of work. It can take time away from the executor’s job and other responsibilities. The good news is that there are several things you can do to make your executor’s job a little easier.

Here are some tips on simplifying your executor’s duties:

Make Sure Important Documents Are Easy to Find

One of the first things an executor has to do after the owner of the estate has died is look for important documents, including bank statements, the will, insurance policies, birth certificates and cemetery deeds. If these documents are not organized well, the executor might have a difficult time finding them and become stressed out. To help your executor out, consider placing these documents in a special binder.

Leave a Cash Account

When someone dies, there are a lot of bills to take care of, including medical expenses, funeral costs and lawyer fees. Make sure your executor has access to cash so that he or she can pay off these estate expenses easier.

List Your Wishes for a Funeral

It is difficult for people to make fast decisions about funerals when they are mourning the death of a loved one. That is why you should include your preferences for your funeral in your estate plan, such as is if you prefer cremation or burial. Doing this will help your family avoid a lot of disagreements and grief.

Determine Who Receives Little Items

It is likely that you listed who you want to receive your house, investments accounts and other big items in your estate plan. However, you might not have included who you want to inherit your smaller items, like your dining room set or souvenirs from family vacations. Believe it or not, many family members have gotten into arguments about small items like those after the death of a loved one. That can create a lot of unnecessary turmoil. To prevent fights, remember to specify who you want to receive each item you own.

Consider Giving Compensation to the Executor

Being an executor is a time-consuming job, so you may want to compensate him or her for all the hard work. However, if your executor is a family member, he or she may be hesitant to accept payment. If you believe your executor might not accept payment, there are ways to work around this. For instance, you could leave your executor money in a separate bank account or leave him or her a higher inheritance.

If you help make your executor’s job easier, he or she will appreciate it. If you have any further questions about your estate plan, consult with a qualified estate planning lawyer Memphis, TN residents trust as soon as possible.

 


 

Thank you to our friends and contributors at Wiseman Bray PLLC for their insight into estate planning.

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A Guide to Business Contracts

Do you need a business lawyer to review or draft a contract?

If you are starting a new business, contracts will be one of the most common legal transactions you’ll be involved in. This means it will be important to take time and learn about business contracts.

The Definition of a Contract

A contract is an agreement that is legally enforceable. It will involve at least two parties and creates an duty(s) for at least one party to do or not do certain things. A party can be an individual person, any sized company, an organization, or a corporation.

The Laws that Govern Contracts

Contracts are typically governed and enforced the legislation that has been set forth in the state  where the contract was agreed to. A contract could be presided by two different types of laws:

  • Common Law – Leases, employment agreements, and standard business agreements are usually governed by the common law of the state. Common laws come from the judicial decisions of the court and evolve overtime with each judge’s ruling or decision on a case.
  • The Uniform Commercial Code – Contracts that are for the sale of any service or goods is not controlled by common law, but rather UCC. This is a set of guidelines that control the laws of any commercial transaction. Most states have adopted the entire UCC, but some only partially. A business lawyer can explain more about the UCC, common law, and what type governs your contract during a consultation.

How a Contract is Created

  • An offer is made,
  • there is an acceptance of that offer, and;
  • reasonable consideration to make the contract valid.

The term consideration in this sense, is a legal term for the “bargained-for exchange” between all parties of the contract. Furthermore that the contract will benefit both parties in some way.

The Different Types of Contracts

There are a few common types of contracts. A business lawyer will know what contract you need for your situation and will be happy to explain the details of these contracts when you speak with him or her.

  • Bilateral Contract – A mutual exchange of promises between parties.
  • Unilateral Contract – A performance is requested, the performance is complete and a reward is given in return.
  • Express Contract – An explicit written or spoken contract which details the terms and conditions of an agreement.
  • Implied Contract – Established through the behavior of the parties, particularly when there is a clear intent to enter an agreement.
  • An express contract –  is formed by explicit written or spoken language, expressing the agreement and its terms.

When the Terms of a Contract Are Not Met

When a party does not adhere to the terms of a contract, it may be considered a breach. It is possible to enforce a breach of contract through dispute resolution or litigation. If you are involved in a contract dispute, please call a business lawyer for further advice.

Do You Have Questions About Your Business Contracts?

If you are involved with a high stakes contract, require a contract to be drafted, or are facing a dispute over a contract, do not hesitate to contact an attorney, like a business formation lawyer Roseville CA turns to, to ensure that you are in a proper position.

Call now to speak with an experienced business lawyer who will listen to your needs.


Thank you to the Yee Law Group for providing their legal insight on business contracts.

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How does a Parent’s Death Affect Child Support?

The death of a parent is a very difficult event for everyone to deal with. It can make it even more challenging when child support payments are needed and those left behind have to determine what the death means in regards of child support payments. To determine what the next step should be, it will depend on whether the deceased is non-custodial or the custodial parent. Every family’s case is different and difficult. It is recommended if you are going through the death of a child’s parent to consult an attorney to discuss specific advice. If you are having child support issues, do not hesitate to contact experienced attorney, like child support lawyers Plano, TX families trust, to assist you with your case.

There are ways to receive child support payments after one of the parents dies.

Death of a Custodial Parent

If the custodial parent dies, the main focus will be who will care for the children. This could result in guardianship from the grandparents, the non-custodial parent, friends of the family, or other relatives. If the non-custodial parent takes on custody, they could try to modify their child support. They could also seek to receive child support from the deceased custodial parent’s estate to help with the costs of rising the children.

If the non-custodial parent does not take custody of the children after the death of the custodial parent, the appointed guardian could seek child support from the non-custodial parent as well as from the custodial parent’s estate.

Death of a Non-Custodial Parent

When the non-custodial parent dies, the custodial parent may be wondering how they will be able to afford taking care of their children. There are a few different situations to figure out how to receive support after the non-custodial parent’s death:

  1. If the deceased parent had a life insurance policy that names the children as beneficiaries, the surviving parent can call the insurance company to start the process of collecting the insurance policy for the child.
  2. If the deceased parent had any assets including houses, bank accounts, and cars, the estate will become responsible for paying for child support.
  3. If the deceased parent was employed, the surviving parent may try to receive benefits for the children from the Social Security Administration.
  4. If the deceased parent has a partner, the partner will receive notices from family court to continue paying child support. In this case, the surviving partner must call the family court to explain their partner’s death. They will need to provide a death certificate so the court can verify the death.

Creating an Estate Plan

The most important step to remember once you have children is to set up an estate plan. By creating an estate plan, it will directly address what happens when one parent dies. It is also important to update your estate plan if you and your spouse get divorced. Keeping an estate plan updated will ensure your children are taken care of when you die. After a parent’s death, the obligation of paying child support does not end with them. No matter the relationship of the parents at the time of death, it is in the best interest of the child for the surviving parent to keep receiving support.


Thank you to Scroggins Legal for providing their insight and authoring this piece on child support.

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Contesting a Will

An estate planning lawyer can tell you that contesting a will may be unusual, but it is not unheard of. Under certain circumstances, the law allows for interested parties to contest a will. Many times, the risk of a will being contested can be minimized or eliminated with careful planning with the help of a knowledgeable estate planning lawyer. Call us today if you would like to discuss your concerns regarding a will, whether you are considering contesting one or would like to ensure that your will is unlikely to be contested.

 

Reasons for Contesting a Will

 

There are many reasons for why a person might wish to contest a will, though not all of them are legally recognized and so therefore do not have grounds for contesting a deceased’s will. For instance, just because you were friends with someone does not mean they were obliged to leave you money, even if they were affluent.

 

The deceased was not of sound mind and body when they wrote their will. The court understands that a person can be unduly influenced by others who wish to set themselves up to inherit assets, to the exclusion of others who otherwise would stand to inherit those assets. An estate planning lawyer can work with you to determine if there is sufficient evidence available to prove the deceased was not capable of understanding the consequences of what they wrote in their will.

 

The will is a forgery. An estate planning lawyer will have to present evidence that the will is forged and is therefore invalid. This usually requires the inclusion of testimony and documentation from experts such as handwriting analysts, archival document specialists, etc.

 

The will is not the latest will that the deceased left behind. If you and your estate planning lawyer can present a valid will that is more recent, you may be able to invalidate the previous will. If you have valid reasons for why you believe there is a more recent will though you have not yet located it, the currently recognized will can be held for a period of time as designated by a judge. However, this is only for a limited amount of time and will only delay the carrying out of the current will unless you can find a more recent version.

 

Protecting Your Will

 

With a clearly written will, possibly in conjunction with the use of other estate planning tools, we can help make sure that your heirs and others who are not included in the will, are not likely to have legal grounds for contesting your will. In the event that you need an attorney, like a wills and trusts lawyer Scottsdale, AZ relies on, do not hesitate to contact one to make sure you are in the best position to tackle your case.


 

Thank you to Arizona Estate Planning Attorneys for providing their insight and authoring this piece on estate planning.

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What do when eligible for Parole

If you or someone you know is soon eligible for parole, then there are a few tips you should know to prepare you for this parole process. The first thing is to make sure you have an experienced attorney representing you throughout your parole hearings. The Kentucky Parole board gives you the opportunity to plead your case once you have served the minimum required of your sentence, but again its an opportunity, not a guarantee. You will need an experienced attorney that will be able to craft a good and convincing argument on your behalf that will sway the board to grant your parole with as little conditions, if any, as possible.

The Parole Board will be the group of persons that will hear your arguments, or any statements made on your behalf regarding your early or conditional release. Parole does not guarantee complete freedom, that depends on the circumstances surrounding your parole and the nature of your offense. For example, A child sex offender may get early release, but it will be conditioned upon a him being placed on the sex offender registry, not being able to live within a certain distance from schools or parks, notifying the registry whenever he/she moves. Again, having an experienced parole attorney is important because they will be able to better argue on your behalf to mitigate the nature or number of conditions that may be attached to your release.

You must also understand that Parole is not a right, but a privilege. It can never be a guaranteed thing and should be taken seriously. The board will take in to account numerous factors when determining your case, such as criminal history, conduct and achievements while time was being served, and maybe most importantly the offender’s plan upon release. Having a plan of what you are going to do upon release will show the board that you are ready to take the steps towards being acclimated back into society.

If you are denied parole, you do have a chance to have that decision changed by requesting an appellate review. The request must be in writing and submitted to the review board no later than twenty-one (21) days after the final disposition is made upon the offender. (Ky. Rev. Stat. Ann. 439.340). This process, is also not a guarantee. The board may only grant a review for a limited number of reasons.

  • If there is an allegation of misconduct by a board member
  • If there is a significant procedural error made by a board member
  • If there is significant new evidence in your case that was not available at the initial hearing.

If you plan to appeal a parole board decision be sure that you are well equipped for what may happen next. There will be a significant burden placed on you to prove that you deserve an appellate review of your case. Make sure that you have an experienced attorney present with you during this process to ensure that you have all the documentation that will be needed for this step such as the criminal defense lawyer Newport KY locals turn to.

 

 

Thanks to authors at James Noll for their insight into Criminal Defense Law.

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Three Ways to Protect Your Personal Injury Settlement in a Divorce

Couples file for divorce for numerous reasons: adultery, cruelty, and disconnect. Laws regarding divorce vary by state, though some courts will grant a divorce on the grounds of irreconcilable differences, irretrievable destruction of the marriage or simply incompatibility.

Besides the inevitable heartbreak, the most significant issues resulting from divorce include:

  1. Alimony payments.
  2. Custody and visitation arrangements as well as child support payment schedules.
  3. Division of property can lead to issues in an otherwise smooth divorce proceeding. Courts usually ponder a few factors when discussing dividing property:
    1. Presence or lack of a prenuptial agreement.
    2. Property acquired prior to marriage.
    3. Each spouse’s individual contributions to the joint estate.

Personal Injury Settlements and Divorce

A personal settlement awarded during divorce proceedings may become contested property. Several criteria are considered by the court to decide whether an asset should be considered marital or nonmarital. This is how it is usually considered:

  • Whether the divorcing couple in a state favoring community property or equitable distribution.
  • Some courts designate personal injury settlements as the property only of the individual it was awarded to.
  • Sometimes the settlement gets broken down to determine how much each spouse should get and how much the personal injury victim can keep without sharing with their spouse.

The best way to prepare for any of these scenarios is to consult a divorce law attorney. They can provide insight into how the court will handle your settlement award.  

 

Three Methods to Protect Your Personal Injury Settlement in Divorce

  1. Get spousal consent to not claim all or a portion of your settlement. Especially if you live in a community property state, it is important to get the spousal consent in writing, dated, signed and notarized for legal purposes. This document can be incredibly valuable to you if the divorce becomes contentious.  
  2. You could open a separate bank account for the award of your personal injury settlement. In some jurisdictions, the award will be considered marital if you deposit it into a joint checking account. Keep your award in the separate account until the court has made a decision regarding asset distribution or when the divorce is finalized.
  3. Differentiate what percentage of your awarded damages belongs to you or your spouse and consider a Maryland personal injury lawyer’s guidance in discussing your asset distribution and personal injury claim.

 

Your divorce attorney is your best asset during proceedings. They can best advise you on your unique circumstances regarding your personal injury settlement and your asset distribution.


Thanks to our friends and contributors from the Law Firm of Frederick J. Brynn for their insight into personal injury practice.

 

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What Is Business Law?

Understanding legal aspects of business is the first step to success for any company. Business law refers to the regulations governing many aspects of running a company including these areas:

  • Sales
  • Taxes
  • Employment
  • Succession
  • Business operations
  • Bankruptcy

Hiring an attorney to help you with the transactional work is a good way to avoid possible litigation by complying with applicable business laws. While business regulations may differ from one state to another or from one country to another, here are some common universal business laws that will apply to your business:

  • Employment and Labor Law

Employees may be a critical component of your business. Labor laws require you to comply with minimum salaries and wages, overtime rules, child labor bans, and maintaining personnel records.

  • Workplace Safety and Health Law

Providing a safe work space free from hazards is not only a right for your employees, but it is essential for business success. We can help you access competent business attorneys who will help you develop company policies to meet compliance.

  • Finance Law

Finance is the heart of business. Financial laws are meant to protect your business, customers, and investors should your business be forced to file for bankruptcy.

  • Privacy Law

The law requires that any business that collects sensitive information about their customers should ensure confidentiality by putting in place a sound security plan. Privacy laws can also affect employee-employer relationships as well. If an issue about privacy or the legalities surrounding this area, seek the trusted guidance of an business law attorney.

  • Intellectual Property Law

Protecting the intellectual property of your business is essential. Left unprotected you leave your company vulnerable to competitors and unscrupulous parties. Do you have a great product or idea? File for a patent to protect it. You can also apply for a trademark to protect your company’s business name, symbols, and logos. A business law attorney can draw up and file the necessary paperwork on your behalf.

  • Advertising and Marketing Law

Effective advertising and marketing is key for any successful business. However, commercial companies are expected to provide “truth in advertising.” A business is legally required to be truthful in advertising and marketing claims.

  • Online Business Law

The internet provides enormous opportunities for your business to make sales and generate revenue. There are also laws which regulate this space, some of which are in flux. When meeting with a business lawyer, discuss which laws that focus on online Internet sales might affect your company.

Understanding business law is important for every company but not everyone has a mind for the complexities of law. However, even mistakenly breaking a law still leaves an individual or a company vulnerable to repercussions. This can include fines or even jail time. There many benefits that can be obtained by seeking the appropriate legal counsel. If you need help, reach out to an experienced business lawyer today such as the top business formation lawyer Folsom CA locals know.

Thanks to authors at Yee Law Group PLLC for their insight into Business Law.

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The Severity of a DUI

Driving under the Influence is never a wise choice. Many people who have been charged with DUIs were not aware that they had overindulged. Having a few cocktails after work may seem completely innocent, but if you aren’t careful, there can be a number of consequences. A DUI can range in severity depending on the factors at play and how many offenses you have on your record. An attorney who has experience in representing people who have been charged with DUIs may be helpful during this trying time. A DUI can result in a range of emotions that include: shame, guilt, sadness and anxiety. An attorney will be helpful in supporting you through the court system so that you are able to move forward with your life.  If you are charged with a drinking and driving related offense, you should contact an experienced DUI lawyer as soon as possible. Successfully defending these cases requires immediate action.

Unexpected Impacts of a DUI
It can be nerve wracking to sit with a DUI charge. It’s likely that you will have a number of questions when it comes to how the DUI will impact your life once the legal process is complete. Working with an attorney may be helpful as they can outline for you the unexpected elements to a DUI. There will be a number of unknowns, which will likely leave you feeling lost in terms of what you should expect. Aside from the traditional consequences a person may experience through the court system, there may also be other ramifications. The following outlines the hidden consequences to a DUI charge:

A DUI conviction will show up in a background check conducted by a current or potential employer. This could impact your ability to gain employment or maintain your current job.
Your auto insurance can sky rocket from a DUI conviction. In some cases, rates can double as a result.
The Motor Vehicle Administration can suspend or revoke your license, could force you to have an ignition interlock installed, or severely limit when and where you are able to drive.
Your reputation could be impacted. If you are charged with a DUI, the information will be made available to the public. Receiving a DUI is not something that anyone is proud of. The last thing you want is to have this information on display to people in your community.

Unfortunately, a DUI charge has the ability to haunt you for quite some time. This can be frustrating if you have already paid the consequences through the legal system. An attorney will be vital in helping you to learn all that lies ahead in the event you have been charged with a DUI.

DUIs Range in Severity
The consequences of a DUI are contingent upon a number of factors like the number of offenses you have on your record. Hiring an experienced DUI attorney is very important if you have been charged with a DUI, especially if this is not your first infraction. Depending on how many DUIs you have had, there are a variety of consequences you could face:

Jail Time
Suspension of Your License
Permanent Loss of Your License
Permanent Mark on Your Record
Heavy Fines (This ranges depending on whether this is your first charge)
Required to attend alcohol education courses

A DUI charge is the last thing that you should have to face alone. Contact a DUI attorney who can help represent you and advocate for you throughout the legal process.


 

 

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“Force” in Allegations of Child Sexual Abuse

The district attorney is often not required to show proof that physical force was used when prosecuting allegations of child sexual abuse.  This is important because a potential response to these types of allegations is that the alleged victim initiated and participated in the sexual activity – no force was used. However, depending on the particular charges the accused person is facing, the prosecutor may not be required to show force at all.  And, even if there is a required showing of force, it can be very minimal.

In many instances there is no requirement of force when a person is accused of a sex crime against a child.  For example, in most jurisdictions, there is no requirement that force be used in order to substantiate or prove a charge of child molestation, statutory rape or aggravated child molestation.  With these types of charges, the prosecutor only need show that the alleged act (the touching or sexual contact) occurred, that sexual gratification was involved, and the age of the alleged victim.  

With these types of charges, if the alleged victim is below the legal age of consent, there is often no requirement to show that the alleged acts involved force, as a Decatur criminal lawyer can explain.  For example, if a twenty-year-old is alleged to have had sex with a fourteen-year-old, in many jurisdictions this can be charged as child molestation or statutory rape.  There is often no additional requirement that the fourteen-year-old was “forced” to participate in the act. In other words, a person could possibly be convicted of child molestation or statutory rape even if the alleged victim willingly participated in or even initiated the sexual contact.  This is because, according to the law, a person under the age a certain age (typically fourteen or sixteen, depending on the jurisdiction) is incapable of giving consent to sexual activity.

A common exception to this is the charge of forcible rape.  In Georgia for example, before a person can be convicted of rape the prosecution must show proof that force was used.  This additional requirement applies even if the alleged victim is below the legal age of consent. So, in order for the prosecution to successfully prosecute a charge of rape there must be some showing of force.  

However, even in these instances, the law often allows a very broad interpretation of what constitutes force.  Physical force is often not required. Even verbal threats can constitute force. Also, even under this exception, if the child is extremely young (ten years old or younger), force will be assumed and the prosecutor does not need to prove it by showing specific acts or threats.


Thanks to our friends and contributors from Andrew R. Lynch, P.C. for their insight into criminal charges.

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Post-Conviction Petitions

The law of most states and the federal government provides a means for prisoners and those under court supervision to challenge the legality of their convictions, even after their direct appeals have been exhausted, as a criminal defense lawyer Rockville MD trusts.

For many years, this kind of challenge was made under the title of habeas corpus. Although habeas corpus still exists in Maryland, in the late 1950s the state legislature consolidated a number of existing remedies into one unified statute, the Uniform Post Conviction Procedures Act (“UPPA”). Although the UPPA did not create any new rights or remedies,  it did change the procedures by which those rights would be litigated. Over the years, the law has been amended a number of times, and the courts have interpreted the Act.

An inmate seeking to challenge his conviction must file a petition for post-conviction relief with the circuit court in the county where the trial took place. There are a number of rules that have been promulgated by the courts that set out the requirements of what must be stated in the petition. Among other things, the petition must state the name and identification number of the prisoner, where he or she is being held, and specify the issues that the inmate wants the court to address.

An inmate can address a number of issues in a post-conviction petition, such as constitutional violations that may have occurred at the trial (e.g., violations of Double Jeopardy, or the Confrontation Clause), but the most common allegation is that the inmate received ineffective assistance of counsel. Almost any error that occurred at a trial can be framed in terms of ineffective assistance of counsel since an attorney is supposed to object when the correct legal procedures are not observed by the court. If the court does something it shouldn’t do, or fails to do something it should have done, the attorney is supposed to object. Thus, post-conviction proceedings frequently raise a wide range of errors made by the court in areas such as admission of inappropriate evidence, improper jury instructions, and prosecutorial misconduct. Another frequent complaint is the failure of trial counsel to properly investigate and prepare for trial. Many inmates complain that they only saw their attorneys once or twice before trial, and the attorney seemed unaware of the facts of the case.

A court is required to hold a hearing on a post-conviction petition. It cannot simply deny it without a hearing. A court is also required by the UPPA to issue a written decision addressing each of the issues raised in a post-conviction petition. If a court doesn’t do so, this is grounds for reversal on appeal. For this reason, decisions on post-conviction proceedings sometimes take months to be issued. They also, typically, take many months or in some cases years before they come to a hearing. Some of the courts are very slow at scheduling post-conviction cases.

Statistically, a post-conviction proceeding is almost always an uphill battle. Most inmates do not receive the relief that they seek. Judges tend to uphold the status quo. However, some petitioners do manage to beat the odds, usually by great effort and involvement in their cases. They study the law, review their transcripts, and persevere in their struggle to regain their freedom.


Thanks to our friends and contributors from Law Office of Daniel J. Wright for their insight into post-conviction petitions.

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Should One Attorney Represent Two or More Persons Forming a New Business

Attorneys representing Idaho clients must not only adhere to the legal requirements that apply to all Idaho citizens, but must also follow the ethics rules that apply to attorneys. These rules are known as the Idaho Rules of Professional Responsibility Conduct. Failure to follow these rules can result in an attorney being disbarred. Among these rules are provisions that forbid an attorney from representing a client where it would pose a conflict of interest with another client.

For more comprehensive answers to your legal questions, contact a business litigation lawyer business owners can rely on.

For example, assume attorney John Smith is approached by a landlord to evict a tenant (Mary Smith) for non-payment of rent. If attorney Smith is presently representing Smith in a personal injury case, Smith must reject the potential landlord/tenant case even these cases involve different areas of law. An attorney is strictly barred from suing an existing client.

Under certain circumstances, Idaho Bar rules also forbid an attorney from representing two or more persons at the same time, even if these persons are not suing each other. For example, if two neighbors are fighting over the location of a fence line for their properties, it would normally be a conflict of interest for one attorney to represent both of them. However, this rule would not prevent the attorney from acting as a Mediator, hired to act as a neutral to help two or more parties to resolve their differences.

Nevertheless, the Idaho Bar rules do permit an attorney to represent multiple persons if this can be done in a way that does not prejudice any of the interests of these persons. For example, a portion of Rule 1.7 contains the following language:

“For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

But, because dual representation is permitted, does that always mean that it is wise? Short answer – No.

For example, assume Patricia Greene and Rose Johnson wish to form a partnership to start a catering business. Assume that Greene is a wealthy person and Johnson has more modest financial means. Under the Idaho laws of partnership, both partners can be held liability for debts and liabilities of the partnership. This fact means that Johnson may have little to lose if the business fails, but Greene could put at risk her entire fortune. Under these circumstances it would be more product for the two women to have separate attorneys representing them in forming the partnership.

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Information to Prepare You for Child Custody Case

In the event that someone is facing a custody case of their child, often turn to the legal services of a child custody attorney to represent their case. Firms have proudly built a legal portfolio, and have helped many clients get to a place of peace and acceptance during such an emotionally trying time.

In order to properly prepare you for what is to come, we have listed some questions and answers that may help you during the child custody trial. However, we highly recommend seeking a child custody attorney, so you have a professional to represent you during the proceedings. Standing alone may be detrimental to your case.

What May a Judge Take into Consideration when Deciding Custody?

  • If there is a child preference as to which parent they live with
  • If there is a history of drug addiction and/or abuse
  • If there is a history of domestic violence in the home
  • Which parent encourages regular visits by the other parent

What are the Types of Child Custody?

Joint Custody: Both parents make decisions when it comes to the welfare and wellness of their children.

Sole Custody: One parent is assigned the primary role of making decisions for the welfare and wellness of their children.

What Kinds of Decisions Will the Parent Holding Custody Make?

  • Activities and/or groups they will participate in outside of school (camps, sports, travel, vacations, etc.)
  • Where they will go to school or for child daycare
  • Who their children’s primary doctors will be (dentists, physician, therapist, etc.)
  • Where the children will be living

Why Should I Hire a Child Custody Attorney?

  • Legal Experience: You will have a kind and understanding, yet knowledgeable professional who can assist with every step of the trial. Choosing a child custody attorney such as the child custody lawyer Phoenix AZ locals turn tomay be able to make the process easier for you.
  • Honest & Straightforward: We can aim to protect your assets, strive to maintain strong communication, and work for the resolutions you are hoping for.
  • Objective Party: This may be a very emotionally upsetting time for you, and we can offer legal words of wisdom when you feel confused and frustrated. We can work for your best interest and future.

Finding the right attorney is key to winning your case, and we believe a member of our legal team can offer you the service you are looking for in your child custody case.

 

Thanks to authors at The Hildebrand Law Office for their insight into Family Law.

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