Archive for ‘Protecting Yourself’

What Happened With Miranda?

By htsyl, 3 June, 2010, No Comment

You might have missed it this week, what with the official start of summer and the oil gusher in the Gulf, but the US Supreme Court handed down a big decision affecting your Miranda rights on June 1st. In a case called Berghuis v. Thompkins, the Court decided that you must expressly invoke your Miranda rights, and if you don’t, you have waived them. In other words, when the cops say “you have the right to remain silent and the right to an attorney even if you can’t afford one…” you have to SAY “I don’t want to talk” or “I want to remain silent” or “I want a lawyer” in order to take advantage of your Miranda rights. After this, the police must stop questioning you (or palling around with you or using whatever technique they have been using to get you to talk up to that point).

This case was decided with a 5-4 vote, with Justice Kennedy writing the opinion and Justice Sotomayor writing the dissent (joined by Justices Stevens, Ginsburg and Breyer). One of the reasons that Justice Sotomayor disagreed is that she thought it was counterintuitive to say that someone is “required to speak” in order to “remain silent.” It is a contradiction, but let’s take a lesson from the decision and the contradiction.

Obviously, it is important that you know your rights. And it is also easy to assume that Miranda rights don’t apply to you and never will. That’s just not true…it might not be you, but it might be someone in your family or a friend. So, LISTEN UP – here is the lesson. SPEAK UP AND INVOKE YOUR RIGHT TO REMAIN SILENT, SAY YOU DON’T WANT TO TALK, SAY YOU WANT A LAWYER!

Why? You are innocent – why not talk, help them out? What you probably don’t know is that the police are allowed to use all kinds of techniques to get you to talk, they can wear you down by going on for hours, they can promise you things if you just “confess a little,” they can lie to you (yes, it’s in the manual).  At some point, you may even believe you did do something wrong, and there you go sliding down that slippery slope, when all you had to do to avoid it was to not talk. It may get you locked up for a while but it will be worth the wait. The convicted murderer at the center of the case at hand was being “mostly silent” during his interrogation and then the police asked him if he “wanted to pray for that boy he shot down” and he said “yes.” Bingo – confession!

Remember, this is not a discussion about whether this guy is guilty of murder – this is a question of what his rights were – what your rights are. Don’t forget this — You have the right to remain silent – BE SILENT…You have the right to an attorney even if you can’t afford one – ASK FOR AN ATTORNEY. One more reminder – if you forget this advice and start talking and then you change your mind – speak up at any time and invoke your rights – you can get them back and they have to stop questioning you.

It’s simple – you can deal with whether you have a good attorney later.

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Child Custody – Malpractice or Expensive Appeal?

By htsyl, 25 May, 2010, No Comment

The most stressful legal dispute you can find yourself in is a divorce or family law matter involving custody of and/or visitation with your children. If you should find yourself in the unfortunate situation of having an attorney who is unprepared or inattentive to your case, or a judge who just cannot seem to comprehend the concept of “best interest of the child,” the outcome can be unthinkable. Losing custody or visitation with your kids because your lawyer “screwed up” seems unimaginable, but it happens.

What do you do? What can you do? If you remember back to previous discussions here, you know that claims of legal malpractice are based on two important things…that the outcome would have been different if your attorney had not made the “mistake” AND that you have measurable monetary damages. Therein lies the problem in suing an attorney for legal malpractice in a custody matter. What are the financial damages? Now I understand that you cannot put a “price” on your children’s custody, and that’s the problem. The only legal recourse in these situations may be an appeal, and then, if the appellate court sees that there were serious legal mistakes or oversights in your case, you may get a new hearing back in family court. And then, you might be able to sue your original attorney for all the attorney fees and costs that you incurred because of their incompetence, but that is a long, expensive and extremely stressful road to take.

The best protection against a bad outcome in a child custody matter is the same as with your medical care. If you feel like something is “not right,” get a second opinion. You do need to be careful when doing this, however. Don’t go to another attorney asking them to criticize one of their colleagues. Don’t try to get a “free consultation” for your second opinion. Be up front about your concerns, pay for their opinion, and be completely honest with the attorney about the circumstances. In other words, don’t “forget” to tell the attorney that you actually bring to the table a “little problem” with drugs or alcohol. If things are not “going your way” as a consequence of your own problem, and not because of your attorney or the judge, don’t shop for a second opinion in an attempt to get yourself out of hot water.

Seeking this opinion may cost a bit of money, and based on the outcome of the consultation, you may decide to change your legal representation. This decision, too, can be expensive, depending on how far into the case you are with the first attorney, in fees and time. But, it is about your kids, and once again, don’t check  your common sense at the door…trust your instincts about what is best for you and your children.

And one more thing to remember — your children have two parents and the fight is not about you — it’s about what is best for your kids.

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Settlement & Mediation – Are You On Drugs?

By htsyl, 29 April, 2010, No Comment

We have talked before about how settlement conferences or mediations work and what to be aware of (Settlement-Mediation-Arbitration and Managing Your Money). One of the concerns is whether or not you are physically up to sitting in a conference room for up to an entire day. The reason that you are in a lawsuit is because you were injured in an accident (or possibly because of medical malpractice). You may be taking narcotic medications on a regular basis to manage your pain. It is even possible, sad as it may seem, that you have become addicted to narcotic pain medications as a result of your injuries. If this is the case, and you are aware that you have a problem, you need to get help, and the treatment for your addiction may add to your monetary damages in the underlying case. But, I digress.

My point here is that your attorney may ask you to NOT take any pain medication on the day of your mediation. Your attorney will explain that you need to have a “clear head” and that the mediator will ask you if you are taking any medications or are under the influence of any substance or being coerced in any way. However, this demand for you to stay “off your meds” may have dire consequences for you. A day of mediation is exhausting, mentally and physically, for someone in the best of health. If your pain is not managed, you will be less able to think clearly, not more. As the day wears on, and you get more and more uncomfortable, you will be more likely to give in to an inadequate offer of settlement. You will be more easily “convinced” by your attorney (whose possible motives we have already questioned) to accept an inadequate settlement.

In my opinion, you should not give in to a demand that you don’t take pain meds unless you really believe you will be okay without them. If you cannot sit an entire day, or more than an hour at a time, you need to tell your attorney that you need to have a 15-minute break every hour, that you absolutely cannot go more than half a day at a time, or whatever limitations you need in order to get the job done. If you know that you function perfectly well while on your meds (and your doctor agrees) then you should take your meds and be honest about it. And if you need another dose after the requisite period of time, take it. You are not required to “suffer in silence” to get the case settled. Stand up for yourself and let your attorney know what your needs are. Don’t be bullied…don’t check your common sense at the door.

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