If you are representing yourself ("pro se" or "pro per") in a lawsuit, your opponent will likely serve you with a set of interrogatories — requiring that you prepare responses and assert any applicable objections.
Additionally, you may want to prepare your own set of interrogatories to discover important information from your opponent — to help you at trial. This might include: witness information, documents, versions of events, facts underlying their claims, and more.
Whether you're the party sending out interrogatories or the one responding to them (you’ll likely be both at one point or another), this article discusses the basics of interrogatories, providing a general definition, tips on responding to (answering) interrogatories, and steps to help you craft your own.
Attorneys seeking practical litigation experience will also benefit from the discussion of interrogatories in this article.
In legal terms, interrogatories are formal written requests — in the form of questions — issued by a party in a lawsuit to another party.
Requirements and rules for interrogatories differ among jurisdictions. Here are some general characteristics of interrogatories to keep in mind:
There are several ways to use interrogatories to your advantage in your case. Interrogatories can be used to:
Understanding the discovery process is critical to the success of a lawsuit. Learn more.
We've shared some of the valuable purposes of interrogatories, but there are some disadvantages — especially if you are representing yourself in the case.
Although written interrogatories do have some drawbacks, they can still provide crucial information, including key facts, positions, and identification of witnesses and documents. Just do some research to learn everything you can about the discovery process first.
If you’ve been served with a set of interrogatories, you must respond within the time limit provided by your state’s laws or rules so you don't face a motion by your opponent or monetary sanctions for failing to respond. Make sure you know the time-frame allotted in your jurisdiction, and don't wait until the last day to start preparing responses.
Although state laws do differ (make sure you follow them!), here are three common ways that parties might respond to written interrogatories, four if you count asking for an extension to respond.
Learn more about responding and objecting to interrogatories.
These sample questions are provided as examples in a fictitious case:
Sample question #1: Identify all persons who witnessed John Doe slip on a banana peel on October 24, 2019.
Sample question #2: State the name, job title, and duties of all employees or contractors in charge of maintaining the floor where John Doe fell on October 24, 2019.
Sample question #3: Identify all documents relating to maintenance or cleaning of the floor where John Doe fell, from October 1, 2019 to October 24, 2019.
If you are representing yourself in a lawsuit, sending out interrogatories can help you gather facts for your case. Always keep one goal in mind: to win your case. You'll want to prepare interrogatories that are polished, professional, and proper.
If you'd like to learn more about how to write excellent interrogatories with sample interrogatories (and sample responses), we've put together Written Discovery: Investigating and Proving Your Claims and Defenses.
The video-driven litigation tutorial dives deep into the discovery process and can help attorneys (representing a client) and parties who are representing themselves in a lawsuit gather the evidence they need to prevail at trial.
]]>Whether you are a plaintiff filing a complaint — or a defendant considering how to respond to a complaint— you must understand the practical effects of motions to dismiss, how they work, and the standards for prevailing on (or defeating) a motion to dismiss.
In legal terms, a motion is a formal request (often in writing) by a party in a lawsuit — asking the judge to take a specific action in the case.
A motion to dismiss asks the judge to dismiss the complaint (or certain claims of the complaint) because it lacks legal sufficiency to go to trial. If the judge grants the motion, the complaint (or some of its claims) will be dismissed.
Depending on the circumstances, the plaintiff may be granted permission (“leave” in Legalese) to amend the complaint and thereby get a “second bite at the apple.” Permission to amend the complaint is more often granted where the defects are capable of being fixed (“cured” in Legalese) by amending the complaint.
Check out Motions: Practice and Procedure to learn more about the importance of motions in a lawsuit:
Grounds for filing a motion to dismiss differ among jurisdictions. Make sure you follow the rules in your jurisdiction. These may include the following (or other) grounds:
In general, when a motion to dismiss with prejudice is granted, the plaintiff cannot re-file or file another complaint relating to the same events or set of facts.
EXAMPLE #1: Herb v. Fran
Plaintiff Herb sues Defendant Fran for breach of contract for failure to repay a $15,000 personal loan. Fran files a motion to dismiss arguing that the statute of limitations has already expired and that the claim against her is therefore barred.
The judge grants the motion to dismiss with prejudice. Herb’s lawsuit is now dismissed and he cannot re-file it or another lawsuit based on the same set of facts.
[Note: this article is not state-specific. Make sure to read and follow the rules in your jurisdiction].
At a motion to dismiss hearing, the parties will stand before a judge who will decide whether to grant the motion or deny it. Note that in many federal (and some state) courts, motions to dismiss may be decided solely “on the papers” without requiring an actual hearing with the parties.
Each jurisdiction has its own rules regarding motion procedures and requirements. Make sure you follow the rules in your jurisdiction.
Generally, at a motion to dismiss hearing, the defendant who filed the motion will be present and may have an opportunity to address the court and present oral argument. The plaintiff may also have the opportunity to address the court with arguments in opposition to the motion.
When ruling on a motion to dismiss, the judge generally must assume that the allegations in the complaint are true, and with that in mind, evaluate the complaint to determine whether it is legally sufficient to support a claim against the defendant. [Remember to read and follow the rules in your jurisdiction].
In other words, the judge looks to see whether the facts alleged in the complaint add up to to a valid legal basis to maintain the lawsuit. Judges generally may not consider whether the claims are plausible or even credible, and must focus on the facts as alleged in the complaint.
If the judge determines that the complaint does not support a valid legal claim, he or she may dismiss the case.
On the other hand, if the judge determines that the plaintiff has stated a valid claim in the complaint, the judge will deny the motion to dismiss and allow the case to proceed.
EXAMPLE #2: Celine v. Harold
The judge may also dismiss one or more claims but not the entire complaint.
For example, let’s say that Plaintiff Celine files a complaint alleging two claims against Defendant Harold based on: (1) breach of contract; and (2) fraud.
Defendant Harold files a motion to dismiss the entire complaint (both claims). The judge considers the motion but rules that that the breach of contract claim is dismissed because there was no valid contract; however, the judge denies the motion to dismiss as to the fraud cause of action, determining that Celine has stated a valid claim for fraud and may proceed with it.
This is an example of a motion to dismiss that gets rid of one or more claims, but not the entire lawsuit.
This is why it is crucial to evaluate the legal merits of your claims before filing a lawsuit. Learn more about planning, preparing, and filing a complaint in a lawsuit.
If you've been served with a lawsuit naming you as a defendant, you may have the legal ground to file a motion to dismiss. This depends on the laws and rules in your jurisdiction, and on the strengths and weaknesses of the plaintiff’s complaint.
Whether you are representing yourself in court “pro se” or “pro per” (or are an attorney representing a defendant), you will do well to carefully evaluate the plaintiff’s complaint for deficiencies and develop a strategic response to the complaint — if you want to start your defense on solid ground.
Not every complaint is subject to a motion to dismiss — but when it is possible to get rid of a lawsuit early on and spare the headaches and hassles of a lengthy lawsuit — you may want to carefully consider a motion to dismiss.
Learn more in Getting Sued: How to Respond to a Lawsuit:
If you are on the other side of the legal battle as a plaintiff — and your opponent has filed a motion to dismiss — you need to act quickly and efficiently.
There are limits on how much time you have to respond to a motion to dismiss. If you do not file a response (aka opposition or reply) to the motion to dismiss — the court will assume you have no objection to the motion or cannot come up with a valid argument — and the motion to dismiss will likely be granted. Case closed.
If you don't properly and adequately respond to the motion to dismiss — you will likely end up with your lawsuit (or at least some of the claims in your complaint) dismissed.
If you'd like to learn more about motions generally, and motions to dismiss in particular, we highly recommend you take a look at our litigation tutorial Motions: Practice and Procedure.
The video tutorial will help equip you to understand how motions work. Plus, you'll learn strategies and other tips to help you respond to a motion to dismiss as well as educate you on other potential motions that you may consider filing (or have to oppose) in your lawsuit.
]]>You must be prepared to address this kind of objection if you want to get your evidence admitted at trial so that it may be seen and considered by the jurors in their deliberations.
A lack of foundation objection occurs when an attorney or self-represented party tries to enter evidence (like witness testimony or a document) at trial without demonstrating an adequate factual or legal basis for allowing it into evidence.
Every court in the United States operates under a strict set of rules that determine what evidence is — or is not — admissible at trial. Federal courts follow the Federal Rules of Evidence (FRE).
State courts often mirror the FRE, though there are differences from jurisdiction to jurisdiction. Always be sure to follow the rules in your jurisdiction.
Rules of evidence exist to help ensure a fair trial for all parties involved in a lawsuit. They aim to limit the evidence used at trial to facts and documents that are relevant to the case and are not speculative or unreliable.
Learn more about rules of evidence.
If the opposing attorney makes an objection based on lack of foundation, it can be a simple problem to fix (so long as the evidence is admissible at trial according to the rules of evidence in your jurisdiction).
You might hear a lack of foundation objection when you are questioning a witness but have not shown the court that the witness is qualified to answer the question. Typically, this happens when it has not been shown the witness has personal knowledge or a basis to offer certain testimony.
To recover from this objection, you must lay a proper foundation for the testimony — i.e., demonstrate that the witness has personal knowledge on the topic that qualifies her to answer the question.
You can do this by slowing down, backing up, and asking the necessary questions to lay the proper foundation.
For example, say the witness testified that he is a retired professional tennis player. Next, you ask him how much rubber is in a tennis ball.
The opposing attorney will likely state an objection that your question lacks foundation. Why? Because your line of questioning has not demonstrated that the witness is qualified to evaluate the composition of a tennis ball.
To lay the foundation, you'd need to back up your questioning to elicit the necessary testimony showing the tennis player is qualified to discuss the rubber content in the ball.
Remember the purpose of the rules of evidence: to ensure that the jury hears facts in the case, not speculation or guesses. If the tennis player has no knowledge about the manufacturing of tennis balls, his testimony might not be reliable.
However, if further questioning reveals that the tennis player had worked as a floor supervisor at a tennis ball manufacturing company for 20 years, it would show that the witness (tennis player) was qualified to answer the question of how much rubber is in a tennis ball.
If you'd like to see the dialogue that demonstrates this exact scenario, including the objection and rephrasing, take a look at 5 Common Objections in Court You Should Master.
It is crucial to learn how to respond to a lack of foundation objection if you want to get your evidence admitted at trial.
Not only will you need to know how to address this and other objections, but you'll also need to know when to make your own objections — especially if you don't want the opposing attorney to take advantage of your lack of courtroom experience.
To help you on your journey, we've put together Trial Objections 101: Making and Responding to Objections. In this video tutorial, we discuss 18 common courtroom objections, including hearsay, argumentative, leading questions, asked and answered, badgering the witness, misleading questions, etc.
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Before you rush into a civil lawsuit, consider these five reasons why writing a formal demand letter might be a better first option.
Whether you hire an attorney to represent you or you are representing yourself in a lawsuit, there is nothing easy about the process. It is a lengthy ordeal from start to finish. You'll have to file a complaint, attend court hearings, possibly pay for depositions before the case goes to trial, gather evidence, build your case, file and oppose motions, and do a lot of waiting.
And, somewhere during the process — your case will probably settle outside of court anyway — just like 95% of lawsuits filed in the United States. Some of these cases even settle after the trial is over but while an appeal is pending
You might be able to avoid all these hassles by presenting your legal demands in a letter to your opponent before you file your lawsuit.
No one wants to get sued. If you're not sure why: see #1.
It is even possible that your opponent doesn't know that you have an issue that needs resolving. You might be steaming mad over the money you lent to your great uncle Sam, the rent deposit you didn't get back, or the unpaid invoices you've sent out — but the offending party may have forgotten all about it.
A formal demand letter can stir up the memory and remind the offending party that you have a legitimate claim against them — and that you are willing to take them to court if necessary to recover the damages.
Learn more about four common kinds of demand letters.
Not only are lawsuits a hassle, but they can also be extremely costly — especially if you plan to hire an attorney. Attorney's fees can range anywhere from $150 to $450 an hour — or more. And you will likely pay for every action your attorney takes, including consultations, filing the complaint, gathering evidence, conducting depositions, filing motions, negotiating settlements, and more.
Plus, if the case ends up at trial, your attorney's fees could get out of control.
A demand letter, if written well, may be able to get the same outcome as a trial — or even better — without the extra expense of attorney fees.
If you are intent on hiring an attorney (which is usually beneficial), you can have your attorney write a demand letter for you. If, however, you plan to represent yourself to save attorney's fees, consider investing some time learning how to draft a compelling and effective demand letter. You don't want to rely upon the poorly written demand letter samples circulating the Internet.
When you file a lawsuit and your case goes to trial, many factors will be outside of your control. You won't be able to control witness testimony, attempts to discredit your character, rules of evidence that might make your key evidence inadmissible in court, and more.
Ultimately, you are leaving the outcome of your case up to the judge or jury and numerous unknown factors. Also, a trial gives your opponent time to gather evidence that might weaken your case.
If you write a formal demand letter asking for fair and reasonable damages, you may be able to have more control over the outcome of your requests.
When you put your demands or requests in writing, it instructs the opposing party that you are serious about seeking damages. They will know that you are willing to take them to court if necessary — something they will want to avoid for the same reasons listed above.
Lawsuits are a hassle. Your opponent knows that attorney's fees are costly, and they probably don't want to leave their fate in the hands of a jury.
A persuasive and well-written demand letter can save you both a lot of time, money, and inconvenience.
If you want to learn crucial elements to consider including in your pre-lawsuit demand letter that can increase your chances of getting a favorable result, check out Writing a Pre-Lawsuit Demand Letter.
The video tutorial will show you how to write a compelling and effective demand letter geared towards avoiding a costly trial. Plus, it includes a PDF guide and sample demand letter written to help you get started with the process.
]]>Courts have strict formalities and procedures that everyone is expected to follow — including parties who represent themselves in court ("pro se" or "pro per").
If you are representing yourself, you do not want to ignore these court formalities or take them lightly, or you could:
We've put together a list of five common (and embarrassing) mistakes that we've seen from parties who are representing themselves in court — so you can avoid them.
The workplace and world may have relaxed its dress code in general, but the courtroom has not. If you are representing yourself in court, you will need every advantage over your opponent.
Not only will your clothing be scrutinized by the judge and jury, but so will your grooming, jewelry, visible tattoos, hair, and more.
Dressing appropriately and presenting yourself in court is vital to making a good impression on the judge and jury.
It is even possible, if your clothing is inappropriate, that the judge may send you home to put on something that is more fitting for the courtroom. Not only is that embarrassing, but it could significantly delay your case and affect the judge’s impression of you. Not worth the risk!
Interrupting the judge is a big no-no! And you will most likely get reprimanded in front of everyone in the courtroom. Judges are particularly hard on self-represented parties — perhaps because they are often more prone to breaking this rule.
Even if you disagree with the judge — believe he or she misunderstands an aspect of the case — or is misstating the law or the facts, do not interrupt. Wait until the judge has finished speaking, and then politely respond, unless of course, the judge indicates that you should stop talking.
This principle also applies to the opposing party, counsel, and witnesses. You may hate what they are saying — but do not interrupt. Wait until they are finished speaking and the judge asks you to respond. If the judge does not offer you a chance to comment, you can politely ask the judge to allow you to speak.
One further tip: If you are ever admonished or criticized by the judge, never be disrespectful or raise your voice.
You must treat the judge and your opponents with courtesy and respect at all times — even if you disagree with what they are saying. If you break this cardinal rule, you may face an embarrassing reprimand by the judge. If it happens during trial, it will only give the jury cause to question your character—and may affect your chances of prevailing in your case.
Here are a few words and terms you can use to keep your language respectful:
And always refer to the judge as "Your Honor."
If you'd like to learn more about courtroom procedures, how to dress for court, and how to address the judge, take a look at Courtroom Introduction: Etiquette, Procedure, and "Who's Who?":
Motions are crucial "vehicles" that drive your lawsuit forward and get the judge to make rulings in your case.
If you don't understand:
You could end up in the courtroom hearing the judge say, "Case dismissed" before you present a shred of evidence to support your claims.
Many self-represented parties lose their cases due to a lack of knowledge of motions.
Two common types of motions are summary judgments and motions to dismiss. Either one of these motions could end your lawsuit before it ever goes to trial.
If you want to avoid this embarrassing mistake, you'll need to study up on how motions work. Learn more.
The most harmful and embarrassing mistake when representing yourself in court is showing up unprepared.
Not only do you need to understand all the rules of courtroom etiquette in your jurisdiction and how motions work, but you also need to understand:
You don't want to go to trial without being prepared.
If you'd like to learn how to better prepare yourself for court, we've put together a comprehensive tutorial that covers just about everything you need to know about how to represent yourself in court ("pro se" or "pro per"). Learn more.
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Even more importantly, you'll need to learn what to do when the opposing attorney objects to your questions, claiming that you are leading the witness.
Though leading a witness is both permitted and useful in cross-examination, it is generally not allowed on direct examination — and an objection by your opponent is likely to be sustained by the judge.
It is essential to be prepared to overcome objections to leading questions on direct examination. But before you can do that, you have to be able to identify what a leading question is. A legal definition is a great place to start.
Black's Law Dictionary defines a leading question as "a question put or framed in such a form as to suggest the answer sought to be obtained by the person interrogating."
In other words, the examiner has embedded the answer that he is seeking inside the question.
Here are some examples of leading questions:
Example #1
Examiner: “You were at Seagull’s Pub the night of October 31st, right?”
Example #2
Examiner: "Didn't you only drink water all night while the plaintiff had four pints of beer?"
Example #3
Examiner: "You told the bartender that you would follow Jim home, didn't you?"
Do you see the answers embedded in these questions?
According to the examiner, the witness:
Isn't that so?
Objection. Leading the witness.
In all three examples, the opposing attorney should (and probably would) state an objection.
You might be wondering: what is wrong with leading a witness?
Leading questions can be problematic because they allow the examiner to unduly influence or control the witness’ testimony. Non-leading questions provide a more “natural” flow of testimony based on the witness’ personal knowledge and recollection of the events.
Rules of evidence are designed to promote reliability and fairness at trial. When attorneys (or self-represented parties) are allowed to use leading questions to "tell the story" by simply asking the witness confirm or deny statements of fact, the potential for unreliable testimony increases.
If the opposing attorney objects to your question — claiming that you are leading the witness — there is usually a simple fix.
We will show you how to overcome these leading questions with examples.
One of the easiest ways to overcome the objection is to rephrase the question to get the testimony you need without putting words in the witness's mouth.
Example #1
Original: “You were at Seagull’s Pub the night of October 31st, right?”
Rephrased: "Where were you on the night of October 31st?"
Example #2
Original: "Didn't you only drink water all night while the plaintiff had four pints of beer?"
Rephrased: "What did you drink during your time at the Pub?"
Follow up: "What did the plaintiff drink?"
Example #3
Examiner: "You told the bartender that you would follow Jim home, didn't you?"
Opposing attorney: "Did you say anything to the bartender before you left that night?"
Follow up: "What did you say to the bartender?"
Can you see the difference?
The leading question assumes an answer that the examiner is hoping to confirm. Whereas, the non-leading form allows the witness to offer a range of responses from their own recollection of the events — and is therefore non-leading.
What should you do if your opponent objects to a leading question?
First and foremost, do not panic!
If the judge sustains an objection to a leading question, focus on rephrasing the question so that it no longer suggests an answer.
In other words, try for a more "open-ended" question.
Often (but not always), it helps to think like a journalist and rephrase the question to begin with one of these “w’ or “h” words:
Look again at the above examples of leading questions — and their alternatives — to see how we rephrased the questions using these words so they would no longer lead the witness.
To learn more about trial techniques, procedures, and how to be an effective courtroom advocate, take a look at Trial Essentials, where you'll learn all about representing yourself (or your client) at trial — from jury selection through verdict.
Or, if you just want to learn more about objections at trial, take a look at Trial Objections 101: Making and Responding to Objections:
Learn more by following Legal Seagull on Facebook, Twitter, and subscribe to the YouTube channel!
]]>If you are an attorney or a party in a lawsuit representing yourself ("pro se" or "pro per"), you'll probably need to introduce one or more trial exhibits into evidence at trial to support your claims or defenses. These may include documents, letters, emails, notes, maps, diagrams, etc.
Evidentiary foundations need to be properly laid to get your exhibits admitted into evidence so that the jury may consider them in deliberations. But before we dive into HOW to introduce an exhibit at trial, let's back up and discuss the basics of exhibits.
According to Black’s Law Dictionary (11th ed. 2019), an exhibit (in court) is a “document, record, or other tangible object formally introduced as evidence in court.”
In this article, we will focus primarily on document exhibits. In simple terms, exhibits provide an easy way for the court to categorize and keep track of the evidence in a case.
In this article, we use the terms court exhibit and trial exhibit interchangeably.
But for curiosity sake, there is a slight nuance between the terms court exhibit and trial exhibit — even though many use the terms to mean the same thing.
A trial exhibit would be presented strictly at trial, whereas a court exhibit might be used at trial or in a court hearing (e.g., evidentiary hearing) that occurs before trial.
Here are some examples of exhibits that might be used at trial:
This list is not exhaustive — but it should provide a good idea of the types of items or evidence that could be used as an exhibit at trial.
An exhibit list is a court document that lists all the exhibits that you intend to (or may) use at trial. You'll need to check your jurisdiction to find out precisely what information an exhibit list in your district includes or requires.
It will likely include the exhibit number, description of the exhibit, and information on the court, case number, whether the exhibit list is for the plaintiff or the defendant, and other information to help identify, organize, and prepare the exhibits for trial.
In some courts, you may also need to disclose exhibits that you plan to use for demonstrative purposes — which we'll discuss below.
As the name suggests, demonstrative exhibits are intended to “demonstrate” an important fact or set of facts in your case, usually through a visual depiction. A demonstrative exhibit can be helpful to establish context or provide a reference point for events that occurred.
Demonstrative exhibits can include timelines, illustrations, graphs, simulations, sketches, and the like. They recreate or represent something in the case so that jurors can visualize or reconstruct the events (or order of the events) of the case in their minds.
Check your local rules to determine which demonstrative exhibits are allowed in your jurisdiction's courts. Regardless, you will need to follow the applicable rules of evidence and properly lay a foundation if you intend to include a demonstrative exhibit at trial.
Now that we have discussed courtroom exhibit basics, we can dive into HOW to present exhibits at trial — and lay a foundation to get them admitted into evidence by the judge.
First, some (even many) exhibits may be agreed upon (“stipulated” to) by the parties, in order to save time — especially with non-controversial items. Or, occasionally, the judge may issue a ruling before trial (during a pre-trial hearing) that certain exhibits are admissible.
Learn more about pre-trial court hearings and court etiquette here.
If you want to introduce an exhibit at trial, here are six common steps for introducing exhibits (remember to follow your jurisdiction's laws and court rules):
For video litigation simulations covering ways to introduce various exhibits at trial, check out Trial Essentials:
Let's break down the general components of laying a foudnation for an exhibit, and answer some of the questions you might have.
There are a few ways that you can mark exhibits for court. One way is to mark the exhibit with a marker or ballpoint pen. Other options include using exhibit stickers or having the court clerk label the exhibit. It all depends on the jurisdiction — rules differ.
You'll probably want to keep the exhibit labels marked in consecutive order so they are easy to identify (A, B, C, or 1, 2, 3).
But as always, check your court rules.
Laying an evidentiary foundation (or simply "laying a foundation") for an exhibit involves proving to the judge that the exhibit you want to introduce is relevant and complies with the local rules of evidence.
You typically accomplish this by questioning a witness, asking them to confirm that they:
You will probably also need to establish additional elements through the witness' testimony to show that the exhibit complies with the local rules of evidence and is reliable and relevant.
Laying an evidentiary foundation is crucial when introducing exhibits at trial. Without a proper foundation, the court may refuse to admit certain exhibits and you could find that your key evidence is inadmissible at trial.
Here are two common reasons parties fail to get exhibits admitted into evidence at trial because of lack of foundation:
Learn more about rules of evidence here.
If you can't demonstrate that the court exhibit is admissible under the applicable rules of evidence, you will not be able to enter your exhibit into evidence for the jury to consider.
For that reason, you must have a firm understanding of the evidentiary foundation for introducing your trial exhibits — well before you go to trial.
Again, we can't emphasize enough how important it is to learn rules of evidence long before you present your case at trial.
More and more parties are forced to represent themselves in court simply because they can't afford the substantial costs of hiring an attorney. If you don't want the opposing attorney to eat you alive at trial, you'd better understand evidence.
To help level the playing field, Legal Seagull has created HD video litigation tutorials that can help you learn important evidence law concepts so you can get your exhibits admitted into evidence at trial — and be your best advocate on your day in court.
Learn more about rules and concepts of evidence to help you get your trial exhibits admitted into evidence.
Learn more about trial basics, with video simulations that demonstrate how to introduce exhibits into evidence at trial.
]]>If you are:
Then this article can help you gain practical deposition knowledge and techniques.
Here is a list of common questions and topics people ask about depositions:
We will answer each of these questions (or topics) below. Feel free to jump to the question that is most useful to you. Or read all the questions and answers to gain a good grasp of what a deposition is and what to expect when you appear for depositions in your case.
We provided a brief definition above: A deposition is a question-and-answer session — under oath — used to gather evidence and testimony to use at trial.
During a deposition, all testimony by the deponent (party or non-party witness) is recorded in a document called a deposition transcript. A court reporter transcribes all the questions and answers with a machine called a stenograph.
Lawyers (and self-represented parties) may use the testimony and evidence from the transcript to prove their claims and defenses at trial. We'll talk more about this below.
As a general rule, you should always hire an attorney when you can afford to do so. That being said, millions of Americans simply cannot afford to pay an attorney and are left to represent themselves (“pro se” or “pro per”).
Generally, attorneys conduct depositions on behalf of their clients. Attorneys are typically present when their clients (or witnesses involved in the case) are deposed.
However, you must always read and follow the rules in your jurisdiction.
For tips and strategies on preparing for, conducting, and participating in depositions, check out Depositions 101: Techniques and Strategies.
Due to the substantial costs of hiring an attorney, more and more litigants are forced to represent themselves in civil lawsuits without an attorney ("pro se" or "pro per"). And many self-represented parties are wondering, "Can a pro se litigant conduct a deposition?"
The simple answer is: Yes, as long as it is permitted by local rules.
However, some factors must be taken into account before a pro se litigant conducts a deposition. Here are a few things to consider:
As a pro se litigant, conducting a deposition can significantly help you gather testimony and evidence for your case — if you know how to do it skillfully. If you try to “wing it” you may find that you wasted your time, money, or worse —damaged your chances of prevailing in the lawsuit.
We provide further study on how a pro se litigant (or attorney) can gain the necessary skills here.
What to expect at a deposition will depend on whether you are asking the questions or answering them.
If you are asking the questions, you can expect your opponent to have an attorney present who can object to any questions that violate the rules of evidence — or are otherwise irrelevant or improper. And they may instruct their client (or witnesses) not to answer specific questions. You'll want to be prepared for these objections and know when you have legal grounds to continue pursuing your line of questioning, rephrase, or move on.
If you are answering the questions, it is equally important that you learn about deposition procedure and review your local rules of evidence. Preparation is essential!
Other things you can expect:
If you'd like to prepare for your deposition, we recommend the video litigation tutorial Depositions 101: Techniques and Strategies. It will show you what to expect and how to prepare for a deposition. Learn more.
We've mentioned one purpose of a deposition previously: to uncover witness testimony and evidence that can help in your case.
However, a deposition may serve multiple purposes. In fact, a single deposition can — and often does — serve more than one purpose.
Here are the primary purposes for conducting a deposition:
Learn how you can use depositions to your advantage in your case.
First, you need to set up a strategy and game plan to get the evidence you need to prevail in your case. If conducting a deposition fits into that strategy, you'll need to send out notices to the witnesses and parties that you want to depose. You'll set up a time, secure a location, hire a court reporter, and write up a list of questions.
Then on the set day, you'll show up with your list of questions, have your witness sworn in, and begin the process of skillfully asking the questions to get the testimony you need.
Simple.
Okay, not so simple.
But it is doable.
Especially with the help of Legal Seagull's Depositions 101: Techniques and Strategies.
The video tutorial will SHOW you how to conduct a deposition through a simulated lawsuit of Patterson v. Don's Moving Company.
Patterson, the plaintiff in the fictitious lawsuit, represents himself pro se at a deposition against a seasoned attorney. He questions witnesses and answers the opposing attorney's questions under oath. Plus, real litigation attorneys, experienced in depositions, provide critical commentary, strategies, and instruction to help you form a plan for your deposition.
You'll discover lots of tips and strategies for depositions. Learn more.
A deposition is not as formal as an appearance in a courtroom — but you should still err on the side of caution. While you don't necessarily need to wear formal attire, this may be your first opportunity to make an impression on your opponent.
You can be sure the opposing attorney is going to look for every opportunity to discredit your testimony (if it is harmful to their case). And what you wear may provide clues as to your credibility as a witness.
Present yourself well. Dress appropriately in business or business-casual attire.
The most important thing you can wear is your credibility.
When you are the person who is answering the questions at a deposition, that means you are being “deposed.”
The person who is being deposed is also called a deponent. If you are involved in a lawsuit (or are a witness), you will likely hear these words used interchangeably.
There are also things you should avoid at a deposition. Most of all, you should avoid lying or testifying untruthfully or inaccurately in any way.
When you are deposed, you are under oath to tell the truth. And you will sign the transcript under penalty of perjury.
Here are a few other things to avoid at a deposition:
A transcript is a written document created during a deposition that records all the questions and answers by the attorney, self-represented party, or witness.
Once the deposition is complete, the deponent (person answering the questions) will have the chance to look over the transcript before making any necessary changes and signing the transcript under penalty of perjury.
Yes. A deposition is taken under oath. Before answering questions, the court reporter will "swear in" the deponent under penalty of perjury. Because it is conducted under oath, it is vital to tell the truth at a deposition.
Many parties make the mistake of guessing when they are not sure of an answer. Guessing is not a good idea. Just stick with the facts. And if you truly don't know an answer, you can always say that you do not know.
In our video litigation tutorial Depositions 101, you can watch a party impeach (discredit) a witness in a fictitious lawsuit after the witness changes his testimony at trial — so that it is inconsistent with his sworn deposition testimony. If your case might be headed to trial — you'll want to take a look. Learn more.
If you are a pro se litigant in a lawsuit, then you will be responsible for finding a location to accommodate your deposition.
In some jurisdictions, the local court will make a room available for pro se parties to conduct depositions. Additionally, court reporting services may have space available for pro se litigants, such as a hotel conference room.
If those options are not available, you could try renting a room in an office building or even at the library.
We hope this article has helped you grasp the essential elements of what a deposition is.
If you want to learn more, we encourage you to take a look at Depositions 101: Techniques and Strategies.
In addition to showing simulations of depositions, this tutorial includes commentary, tips, and insights of experienced litigation attorneys.
You'll learn:
Your first inclination might be to rush to the courthouse to file a lawsuit. You believe you are in the right. They owe you.
The problem is that a lawsuit can be costly. And you probably can't afford to hire an attorney — which means you may need to represent yourself in court. And your opponent may hire an attorney, decreasing your chances of getting what you are after.
A simple solution to your problem could be writing a demand letter. If the demand letter you write is successful in resolving your dispute, you could avoid going to court, which would save you time, money, and a big headache.
The landlord who owes you money or the person who damaged your property may be willing to pay your demands. They may not even know you have a claim — and chances are they don't want you to take them to court.
Here are five common types of demand letter samples that people might write before filing a lawsuit.
There are many reasons for writing a demand letter for payment. You might write a demand letter requesting payment in one of the following situations:
The above demand letter sample scenarios are legitimate reasons to take someone to court. By writing a demand letter, you may get the same result — but without the stress of a lawsuit.
Writing a demand letter can be a little tricky. There are things you should say — and things you should not — especially if you want to resolve the issue without going to court.
There are specific guidelines you ought to follow when writing a pre-lawsuit demand letter.
For example:
Unfortunately, many lousy sample demand letters are circulating the Internet. Be cautious of making a mistake that could destroy your chances of settling — or worse — damage your case or reputation (especially if your case goes to trial).
If you'd like to learn how to write a solid demand letter that will protect you and help you persuasively make your demand to those who owe you money or property, Legal Seagull has produced a mini-course on writing a demand letter.
In Writing a Pre-Lawsuit Demand Letter , attorneys Neer Lerner and Elliott Malone provide video instruction, a PDF guide, and a sample demand letter that you can use for inspiration and guidance in your pre-lawsuit demand letter.
Learn more about Writing a Pre-Lawsuit Demand Letter.
]]>You've no doubt seen a few sensationalized, Hollywood-style courtroom objections on television — or even witnessed a few trial objections in a real lawsuit. And you're wondering if you'll be able to handle common objections in court when you face your opponent.
Courtroom objections are an essential component of trial. Lack of experience with courtroom objections could destroy your chances of winning your case. You don't want to give your opponent in court free rein to introduce improper evidence (or ask inappropriate questions of witnesses).
Plus, if you want introduce valid evidence or testimony — and your opponent keeps objecting because you don't know how to handle common objections in court — you'll never have the chance to introduce important evidence supporting your version of the facts to the judge or jury.
Mastering common objections in court is as much a skill as it is an art. This means that you CAN learn how to:
In this article, we'll provide a list of objections that you should try to master before your trial date. And if your trial is tomorrow — you might want to pull an all-nighter.
There is a high probability that you will encounter these five common evidentiary objections in court. Reading through this list of objections will help you learn how and when to object — and how to handle objections by the opposing attorney.
When you hear the words, "Objection! Argumentative," you might think it means the attorney is accusing you of arguing. But that's likely not the case.
Argumentative is a legal term that means something similar to "drawing conclusions." For the sake of simplicity, we'll refer to them as an argumentative objection.
That means if you hear an argumentative objection, the questioner (attorney or self-represented party) is likely trying to offer a conclusion of what the evidence means rather than simply asking for the facts of what actually happened.
It is the jury's responsibility to decide whether to believe or find any testimony or evidence credible or persuasive. During the case-in-chief (includes questioning of witnesses), the witnesses, attorneys, self-represented parties, defendants, and plaintiffs are only allowed to recite the facts, not draw conclusions about the facts (until closing arguments). To do so is argumentative.
Generally, a party in a lawsuit is only allowed to "argue" the facts of the case (i.e., draw conclusions) in closing arguments. Learn about trial basics here.
Argumentative objections are often made when the questions directed to the witness attempt to influence the witness' testimony by inserting the attorney's (or self-represented party's) interpretation of the evidence into the question.
Sample Argumentative Objection
Here is an example of an argumentative objection to help you see how it might work in a courtroom:
Attorney: How often did you get your brakes checked prior to the accident?
Witness: Twice a week.
Attorney: You expect this jury to believe that you got under your car, twice a week, every week, to check your brakes?
Self-represented Party: Objection! Argumentative.
Judge: Sustained.
You'll notice the words: "You expect this jury to believe…." Those words tip you off that the question is argumentative (and objectionable) because the attorney is stating what the jury should be expected to believe about something. Plus, the attorney takes the testimony beyond what the witness actually said.
The witness never said he got under the car twice a week — only that someone checked the brakes twice a week.
If you'd like additional tips on how to identify questions that may be objectionable as argumentative, you can check out Trial Objections 101: Making and Responding to Objections.
Speculation is a legal basis for objecting to witness testimony on grounds similar to the argumentative objection — because the evidence is not considered reliable or factual. A witness' testimony is limited to their personal knowledge of events (estimating is allowed, but most opinions are not). Speculating is even worse. It's akin to guessing — and it's not permitted.
We certainly wouldn't want a jury to decide a case based upon someone's guess. That's a primary reason we have rules of evidence: to establish a fair trial that is based on facts, not speculation. Learn more about rules of evidence (the backbone of evidentiary objections).
Lay witnesses (i.e., non-experts) may testify as to their personal knowledge in a case. But generally, they are not permitted to testify as to matters outside their first-hand knowledge.
A common reason for objections that call for speculation (or speculation objections) in court is when a party asks a witness to interpret someone else’s state of mind. No one can read another's mind.
Sample Objection for Speculation #1
Here is a specific example of a speculation objection so you can see how it might occur in a court of law:
Witness: A man with a glorious ponytail came in and bought a newspaper with his credit card.
Attorney: Why did the man use his credit card instead of paying with cash?
Self-Represented Party: Objection. Calls for speculation.
Judge: Sustained.
Attorney: Why did the man have a ponytail?
Self-Represented Party: Objection, calls for speculation — and irrelevant.
Judge: Sustained. Counsel, move on.
Sometimes courtroom objections based on speculation can be overcome by rewording a question, particularly in state of mind conclusions. A witness may not testify to a state of mind, but they can testify to what they saw.
Sample Objection for Speculation #2
Here is a second example of a speculation objection where the party is able to reword a question to get the desired testimony.
Self-Represented Party: Was the man with the ponytail thinking about killing the cashier for not refunding his money?
Attorney: Objection! Calls for speculation.
Judge: Sustained.
Self-Represented Party: What did the man with the ponytail do when the cashier did not refund his money for the newspaper?
Witness: His whole body tensed up, he slammed his fist on the counter, and raised his voice saying, "I'm not going to forget your face."
Evidentiary objections such as assumes facts not in evidence are closely related to foundation objections (which we will discuss in number 4).
If a question references a fact that has not yet been presented or accepted as evidence, it can be objected to on that basis — because it assumes a fact that has not been established.
Sample Assumes Facts Not in Evidence Objection
Attorney: Where were you at the time of the accident?
Witness: I was standing at the bus stop right near the southeast corner of the intersection of Main Street and 7th Avenue.
Attorney: What did the driver of the black van throw out of the window?
Self-Represented Party: Objection. The question assumes facts not in evidence. And it’s a leading question.
Judge: Sustained.
Here, there was no testimony prior to this question that: (1) there was a black van, (2) the witness could see the driver, or that (3) the witness saw the driver throwing something out of the window.
When you are questioning a witness and your opponent objects to your question because it assumes facts not in evidence, it is usually a simple problem to fix.
We thoroughly discuss the solution in Trial Objections 101: Making and Responding to Objections.
Plus, below, we've provided an example of one way to get back on track. See example two of foundation objections (objections that are made because a question lacks foundation).
As mentioned above, foundation objections are related to assumes facts not in evidence objections.
A common lack of foundation objection occurs when a party asks a question, but has not shown the court why the witness is qualified to answer the question. Basic foundations that need to be established before the question is permissible might include personal knowledge and familiarity with the topic.
Lack of foundation objections can occur when the examining attorney is going too fast and not asking preliminary questions to demonstrate the witness’ familiarity with the facts.
Example #1 of Foundation Objections
Here is a sample foundation objection dialogue that might happen at trial:
Attorney: Are you a tennis player?
Witness: Yes.
Attorney: What percentage of a tennis ball is made of rubber?
Self-Represented Party: Objection. Lacks foundation.
Judge: Sustained.
In this lack of foundation example, there was no prior testimony establishing that (1) rubber is used in the production of tennis balls; or (2) that the witness has any knowledge regarding the manufacturing or composition of tennis balls.
Why would he, based on what you have just read? All we know is that the witness hits tennis balls — not manufactures them.
The attorney had not yet sufficiently laid a foundation for the question (in other words, she was going too fast in her line of questions).
Example #2 of Foundation Objections
Now, let’s assume that the attorney resumes her line of questioning to lay a proper foundation.
Attorney: Do you know what tennis balls are made of?
Witness: Yes.
Attorney: How do you know that?
Witness: Before retiring in April, I worked as a floor supervisor at a tennis ball factory for 20 years.
Attorney: As part of your duties as a floor supervisor, were you involved in supervising the manufacture of tennis balls?
Witness: Yes.
Attorney: Did you become familiar with the materials used to manufacture tennis balls?
Witness: Yes.
Attorney: What materials are used to manufacture tennis balls?
Witness: Mainly rubber, with some wool.
Attorney: What percentage of a tennis ball is made of rubber?
Witness: I’d say about 85-90%.
See how she slowed down. Asked the right questions. And laid the legal foundation to get the testimony she needed in her case.
When your opponent objects for lack of foundation, DO NOT PANIC!
Just back up and ask the necessary foundational questions.
The non-responsive objection is a common objection used in court when a witness is not responding properly to questions asked under oath. Using this evidentiary objection is crucial when you have a witness who skirts around your question, rambles on and on, or gives testimony that goes beyond the scope of what you asked them.
It's critical to make these kinds of courtroom objections quickly because the witness may inadvertently (or intentionally) say something that is harmful to your case. Thankfully, with a little skill, you can have harmful testimony stricken from the record — you can watch an example in Trial Objections 101.
Sample Non-Responsive Objection
Here is an example of a non-responsive objection:
Attorney: In what year did you meet Bozo?
Witness: We’ve known each other since we were students at clown school. A lot of people don’t know that Bozo was quite the ladies’ man . . . anyway, when he got back from his second tour in Afghanistan, after his divorce, I . . .
Self-Represented Party: Objection. Non-responsive.
Judge: Sustained. Mr. Pennywise, please answer the question.
Witness: Huh? What was the question?
Attorney: How long have you known Bozo?
Witness: 12 years . . . I’ve known him since the very day he won his third-straight hog-wrestling contest, and I’m telling you, no way Bozo is guilty of any of these charges . . .
Self-Represented Party: Objection. Non-responsive.
Judge: Sustained.
Non-responsive witnesses can be a source of frustration for self-represented parties as well as seasoned attorneys. There are ways to counteract these kinds of witnesses which we discuss in Trial Objections 101.
That concludes five common objections in court, but there are many more evidentiary objections you'll want to study if you want to be your (or your client's) best advocate in court so you can increase the chances of getting the outcome you desire at trial.
Knowledge of five common objections is a great start.
But if you don't master (or at least begin to master) all of the common courtroom objections, you will likely have difficulty proving your claims or defenses in court.
Without the ability to properly make (and respond to) objections at trial — you may not have the chance to present significant facts and testimony to the judge and jury. Or, the opposing party may destroy your case by taking advantage of your lack of practical objection skills.
If you'd like to learn about 13 additional common courtroom objections that you will likely face at trial (and how to handle them), like: hearsay, improper character evidence, unfair prejudice, leading questions, badgering the witness, and more — check out the video litigation tutorial — Trial Objections 101: Making and Responding to Objections.
It's clear. Concise. Easy to understand. And includes HD video simulations of a self-represented party who stands before the judge making and responding to objections when necessary.
Nothing cements the basics of making solid objections in court like seeing the objection process in action. You'll be growing in confidence as you internalize objection skills and make them your own.
In the tutorial, you'll learn much more than how to make objections in court. The courtroom objections course will provide the confidence you need to identify objectionable testimony and other evidence, the insights to know when to object, and ways to handle the objections of the opposing attorney.
You can read more about Trial Objections 101 here.
We hope you will master common trial objections for your day in court.
Learn more by following Legal Seagull on Facebook, Twitter, and subscribe to the YouTube channel!
]]>Rising attorneys’ fees continue to make legal representation less and less affordable, leaving millions of Americans each year with the important decision of whether to represent themselves in court without an attorney.
Should YOU represent yourself in court? Well, it depends (classic lawyer answer). First, find out whether you CAN represent yourself in court under your jurisdiction’s laws and court rules.
If you can in fact represent yourself in court, you must then address the more important question: should you represent yourself in court? Again, the answer is: maybe.
This article and video is not state-specific. Each state has its own laws and court rules regarding when you can represent yourself in court. We do not recommend either way whether you should represent yourself in court. Only you can make that determination. This article and video are designed to point you in the right direction as to what factors, among others, you should consider.
Even if you are inclined to represent yourself in court, consult with an attorney first. Many attorneys offer low cost or free initial consultations. You might as well, right? You may even learn something about the litigation process, potential claims and defenses in your case, and some of the obstacles you may face.
Some attorneys offer reduced fees, payment plans, and work on a contingency fee (in certain matters). These could help you keep down your legal bills or make payment terms easier.
Here are some important factors to consider before committing to represent yourself in court as a pro se / pro per party without an attorney:
Obviously, the more complicated the case, the more difficulties you are likely to face if you represent yourself in court. But how do you know how “complicated” your case is going to be?
In reality, it is difficult to quantify how complex your case will be, and things can change in an instant.
And, even if it was simple, cases often take unexpected (sometimes unfortunate) turns. Interesting legal issues may pop up. Witnesses, parties, and even attorneys can be uncooperative, stubborn, or even hostile.
With that in mind, here are a few factors to consider when evaluating how complex your case is:
Does your case involve technical, scientific, or otherwise complex subject matter? If so, you will need to not only learn and understand the relevant legal standards for proving your case, but also the necessary scientific and technical concepts and workings.
This is especially true in actions for product liability, professional negligence (e.g., doctors, attorneys, architects, engineers, etc.), and intellectual property (e.g., trademarks, patents, copyrights, etc.). But this is not a complete list … use your judgment!
This all depends on the knowledge you bring into the lawsuit and what you need to learn to prove your case. Will you need to learn some medicine? How toaster ovens are built? The standards of professional conduct for accountants?
How many parties are involved in the lawsuit? Are they businesses, individuals, government entities, non-profits, or some combination? Are they able to fund their legal fees and mount a strong opposition to you?
If you’re suing a government entity or official, there are special rules and restrictions (including sovereign immunity), and you will need to read the rules and court rules in your jurisdiction to ensure that you comply with these stringent requirements.
As a general rule, the more parties are involved, the more complicated the case will be. This is because each party has the right to conduct discovery, file and oppose motions, and represent its interests at trial. And, if your opponents have a war chest of cash to pay attorneys to make your life more difficult, that will almost certainly make your case more complicated.
If you or your opponent(s) have already filed a lawsuit, is it venued in state court or federal court?
If a lawsuit has not been filed, where is it likely to be filed? Generally speaking, actions in federal court tend to involve more procedural requirements and disclosures and to be stricter with enforcing court rules and deadlines.
That being said, whether you are in state or federal court, always abide by deadlines and procedures and never assume that your court is “relaxed” when it comes to enforcing deadlines!
The vast majority of lawsuits filed each year are in state courts. Certain cases MAY be filed in federal court; and some cases MUST be filed in federal court. Do your research!
This is not to say that if your case is (or belongs) in federal court, you should not represent yourself. Indeed, countless pro se / pro per parties represent themselves in federal courts every year. However, this is an important factor (among others) you need to consider.
The more your case is worth (or for a defendant, the most your opponent’s case is worth), the more strongly you should consider hiring an attorney. Of course, valuing your case can be difficult, and cases can greatly increase or decrease in value based upon developments in the lawsuit. For example, a helpful deposition of a witness could improve the value of your case. The opposite is true as well.
Despite these difficulties, do your best to come up with a realistic value for your case. Research what money damages are available in your jurisdiction for this type of case. Are you or your opponent entitled to compensatory damages? General damages? Punitive damages?
If you are entitled to attorneys’ fees, it may make even more sense to consider hiring an attorney.
Why does the value of the case matter? Well, the more your case is worth (or more it is worth to your opponent), the more you stand to lose if things go wrong. And, the harder your opponents may fight.
For example, if you’re suing your tenant for $800 in unpaid rent, it might not make sense to pay an attorney hourly at the rate of hundreds of dollars per hour.
On the other hand, if you’re being sued for $300,000 in fire damage caused to your neighbor’s apartment when you lit fireworks in your living room, you may prefer to hire an attorney to represent your interests. Or not … it all depends on your particular circumstances!
If you’re lucky, your lawsuit will resolve quickly with a settlement. However, many (even most) cases take weeks, months, or sometimes even years to resolve. All this requires an investment of time on your part.
Here are some examples:
At the end of the day, time is money. Even if you’re saving money on attorneys’ fees by representing yourself, your time has a value. What are YOU losing by dedicating time to litigating the lawsuit?
Are you losing wages? Missing out on opportunities to network and develop your professional contacts and business? Losing precious time with your family?
Give some thought to what you would be giving up by taking on the responsibilities of representing yourself in a legal action.
How well do you deal with pressure? Some people really thrive under pressure. Others don’t. Some find that a little pressure is good for them: it makes them more productive and gives them a sense of purpose.
For others, pressure has the opposite effect, causing them to shut down or worse, panic.
Almost everything in litigation has a deadline. Among other things, discovery responses, disclosures, status reports, and motions all have deadlines. And deadlines can be uncompromising and strict!
Are you the type of person that is good at keeping track of and meeting deadlines?
Furthermore, your health is the most important asset you have. If acting as your own attorney will negatively impact your emotional health, strongly consider hiring an attorney instead of representing yourself pro se / pro per.
This article and video applies only to CIVIL lawsuits. If you are a defendant in a CRIMINAL case or accused of a crime but not formally charged, it is NEVER recommended that you represent yourself in court.
In criminal cases (unlike civil), the Sixth Amendment of the U.S. Constitution requires that the state appoint an attorney for you at its expense if you can’t afford to hire an attorney.
Criminal cases involve the possibility of money fines or even imprisonment, and therefore the stakes are simply too high. Moreover, with legal representation available to you for free if you can’t afford it, representing yourself without an attorney in a criminal case is simply NOT recommended.
There are a few categories of cases where you should give a second (or even third or fourth) thought to hiring an attorney. That is not to say that you can’t represent yourself effectively and well, but the cases listed below are more document-intensive, (generally) more complex, and require some knowledge of scientific and technical matters that may be difficult for non-attorneys (and sometimes even for attorneys!):
If you decide to represent yourself in court, check out Legal Seagull’s video litigation tutorials:
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]]>If your opponent obtains a judgment against you, he can probably pursue your personal assets to satisfy the judgment. This may include bank accounts, wages, real estate, vehicles, boats, personal items, and more.
In this article, I will discuss five steps you can take to protect your assets before you get sued. Once you get sued (or, depending on the state, threatened with a lawsuit), things get a lot trickier. In many (if not all) states, courts have power to declare certain transfers of money and property to be fraudulent or otherwise invalid. These laws are designed to prevent defendants from evading their responsibility to pay judgments. 43 states have passed laws similar or identical to the Uniform Fraudulent Transfer Act (UFTA), which invalidates certain transactions that occur during an active or imminent lawsuit. For this reason, you should start your asset protection plan well before you get sued—as in right now.
Be mindful that laws pertaining to personal liability and judgment collection differ among states. Make sure you read this disclaimer before continuing this article. Do yourself a favor and consult with an attorney licensed in your state to make sure you do everything you can to protect yourself.
For most people, the two most important insurance policies are: Automobile liability insurance and homeowner’s insurance (renter’s insurance if you do not own a home). For each policy, make sure you thoroughly understand what your policy limits are, what your policy covers, and which exclusions apply.
Automobile liability insurance covers you in the event you negligently cause someone injuries, death, or other damages (e.g., property, loss of wages, etc.). It is mandatory in almost every state.
Every insurance policy has policy limits. These are limits on the amount the insurance company will pay for a specific loss. For example, let’s say Daphne Driver has the following policy limits: $50,000 for bodily injury and $10,000 for property damage.
While texting and driving, Daphne smashes into Mario Motorcycler, shattering half the bones in his body. Mario’s medical bills are $70,000 and his $13,000 motorcycle is destroyed. The most the insurance company will pay is $50,000 for Mario’s bodily injuries (out of $70,000) and $10,000 for his property damage (out of $13,000). This means that Daphne may be held liable to Mario for the $23,000 difference ($20,000 for bodily injury; $3,000 for property damage). Daphne would have been better off getting a policy with higher limits; however, she would have paid more in premiums (i.e., payments). Insurance is always a tradeoff. Higher premiums mean less risk—and vice versa. It is up to you to evaluate your needs and appetite for risk and to select the appropriate insurance policy. It is not always an easy decision!
In addition to verifying that you have adequate policy limits, make sure you read and understand the exclusions in your policy, if any. Exclusions are provisions in the policy that eliminate insurance coverage for certain losses. What this means is that the insurance company will not pay under these circumstances. Every policy has its own exclusions, but I will go over two important exclusions: (1) excluded drivers, and (2) business use.
Let’s start with excluded drivers. I am often shocked to see how many people do not realize until after an automobile collision that their own children are excluded drivers under the policy. Read your policy thoroughly and/or contact your insurance agent to find out if anyone is excluded under your policy. If someone is excluded, they must NEVER drive your car, not even for a short drive to pick up tacos. No taco is worth personal liability!
The second exclusion is the business use exclusion. If you use your car for work (e.g., pizza delivery, dog grooming, transporting people), make sure your automobile policy does not exclude business use. If it does and you get in an accident, there is a high probability the insurance company will refuse to pay. You may need to purchase additional coverage to insure you for potential business-related accidents.
Beyond covering the structure and contents of your home, homeowner’s insurance has the added benefit of providing you with liability coverage for a wide array of potential claims. Here are a few examples of claims that might be covered:
As with any other insurance policy, make sure you have sufficient policy limits and that you understand the exclusions to the policy. If you operate a business out of your home (e.g., day care) make sure you are either covered under your homeowner’s policy (this is rare) or get a separate business/commercial insurance policy.
A trust is a legal entity that holds assets for the benefit of beneficiaries. It is managed by a trustee, who has all the legal obligations and control over the trust’s funds and property, and must govern it according to the terms of the trust, and for the benefit of the beneficiaries.
There are several types of trusts that can be used to protect your assets from creditors (e.g., asset protection trust, qualified personal residence trust, life insurance trust, etc.). Generally, to protect your assets from a judgment, the trust must be irrevocable. What this means is that you cannot “cancel” it or have any control over the assets.
Typically, for a trust to shield your assets, a trustee (other than you) must have the discretion to make any and all disbursements. When creating the trust, you would specify the terms and parameters in the trust document, and the trustee then governs the trust according to those terms.
Forming a trust can be complicated. Strongly consider consulting an attorney licensed in your state to evaluate your circumstances and determine the best options for you.
If you own all or part of a business, whether as a sole proprietor or in a general partnership with someone else, you may be exposed to unlimited personal liability for the business’s debts. If you are in a general partnership, you could be liable for the poor business decisions of your partners. You may even be liable for fraud and criminal acts committed by your partners. For these reasons, a general partnership can be very risky—exposing you to a great deal of personal liability.
To protect yourself from personal liability, consider forming a corporation, limited liability company (LLC), or limited partnership (LP) for your business. Doing so will, in most cases, reduce your exposure to your business investment. Before you do anything, research your state’s laws or consider hiring an attorney or accountant specializing in entity formation and taxation.
Need another reason to contribute money to a retirement account? Retirement accounts (401(k), 403(b), IRA, etc.) have certain protections that prevent creditors from reaching them. This is especially true for plans governed by the Employee Retirement Income Security Act (ERISA), which covers an overwhelming majority of employer-administered plans.
Qualified plans governed by ERISA enjoy an unlimited protection from creditors (except the IRS and child support). There are also protections for retirement plans not governed by ERISA, though these are somewhat less extensive. Non-ERISA IRAs, for example, have a protection cap of $1 million (adjusted for inflation) from bankruptcy proceedings.
Homestead exemptions protect the equity in your principal residence (not investment properties) from seizure by creditors. Homestead exemptions differ from state to state. In a small number of states, homeowners enjoy an unlimited homestead exemption. Check the law in your state to determine whether you are one of those lucky few!
Depending on your state’s law and your personal financial situation, it might make sense for you to pay additional principal on your mortgage rather than keeping it in your bank account. For example, if you have put $50,000 into your house (down payment, mortgage payments, etc.) but your state has a $100,000 homestead exemption, it may make sense for you to invest available funds in your home rather than a bank account, which can be seized by creditors.
Lastly, check to see how your house is titled. Some states allow for married couples to take title as tenants by the entirety. Under this ownership structure, each spouse has an indivisible share of the property. This means that both of you must consent to any sale or conveyance. If a creditor obtains a judgment against you, he may not be able to force you to sell the house without your spouse’s permission. However, if both you and your spouse are sued, this protection would not be particularly helpful.
Protecting your assets will require some time investment and planning—but it is achievable. You may need to spend some money to consult with an attorney, accountant, or to obtain additional insurance coverages.
There is no magic trick to guarantee that no one will ever seize your assets. As with everything in life, it is impossible to anticipate every possible scenario. Nevertheless, if you plan ahead and do your homework, you can put yourself in the best possible position to protect your assets from creditors.
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]]>As a general rule, the answer is yes: you CAN represent YOURSELF in a civil lawsuit, subject to a few exceptions. (And of course depending on the laws and court rules in your jurisidiction). This is separate and apart from the more important question: Should You Represent Yourself in Court?
Here a few common exceptions to the general rule that a party can represent himself or herself in court in a civil lawsuit pro se / pro per:
While you generally can represent yourself in court, most (if not all) states prohibit a non-attorney from representing a corporation, limited liability company, or certain other business entities.
Although you can usually represent yourself in court as a pro se / pro per self-represented party, you would almost certainly not be able to represent a corporation (or certain other business entities), even if you are the only owner of the business.
Most (if not all) jurisdictions prohibit a non-attorney from representing a trust or estate. If you have been appointed as a trustee, executor or administrator of an estate, or even a court-appointed guardian, you will almost certainly need to hire an attorney. Read the laws and court rules in your jurisdiction.
Different jurisdictions may have laws barring minors (i.e., under 18 years old) from representing themselves in court until they reach the age of maturity.
Likewise, if you have been adjudged by a court of law as mentally incompetent or otherwise incapable of making legal decisions on your own behalf, you will likely not be able to represent yourself in court pro se / pro per.
Deciding whether to represent yourself in court is a very important decision that should never be taken lightly. There are many factors you need to consider, including: the strength of your case; your financial condition; your abilities to devote the necessary time to litigating your case; and, much more.
To learn more about whether you should represent yourself in court pro se / pro per in a civil lawsuit, learn more below:
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]]>Many jurisdictions define the term “business” very loosely to encompass a wide range of entities. This may include also non-business entities, non-profits, religious or educational institutions, etc.
This article and videos are not state-specific and do not constitute legal advice or opinions. You must always read and follow the laws and court rules in your jurisdiction. Please read Legal Seagull’s disclaimer before proceeding.
To fully grasp the business records exception, you must first understand the hearsay rule, which generally forbids out-of-court statements that are offered for the truth of the matters asserted. Each jurisdiction may have its own version of the hearsay rule (and business records exception), but many jurisdictions model their rules (partially or fully) on Rules 801-807 of the Federal Rules of Evidence.
Before learning how to lay a foundation using the business records exception, you MUST be familiar with the rules in your jurisdiction regarding how to properly introduce an exhibit into evidence.
To learn more about the hearsay rule and its many exceptions, and evidence law in general, check out Legal Seagull's video litigation tutorial Introduction to Evidence Law:
A document is inadmissible hearsay unless it qualifies as an exclusion or exception to the hearsay rule. For that reason (and others), understanding the business records exception is critical for anyone considering taking a case to trial!
Once you have followed the steps for introducing your exhibit, you may then proceed to ask the necessary foundational questions for the business records exception. Again, these will differ depending on your jurisdiction.
Under the Federal Rules of Evidence, for example, a party must show that:
Confused? No worries! Check out Trial Essentials for video simulations depicting introduction of business records through the business records exception:
Once you have laid the necessary foundational questions and offered the record into evidence (assuming the judge accepts it), you can then ask specific questions about the contents of the record.
It is important to remember that even if you get a document admitted into evidence with the business records exception, you could still run into a problem with double hearsay (AKA hearsay within hearsay) if the document contains other hearsay statements (e.g., witness statements, handwritten notes, etc.).
In that case, you will likely need to find a valid basis for admitting those internal hearsay statements. This includes showing that the statements (1) do not fall under the relevant statute’s definition of “hearsay”; or (2) fall under a valid exception or exclusion to the hearsay rule.
Ready to take the next step in your case? Check out Introduction to Evidence Law and Trial Essentials. Want it all? Sign up for an LS Membership!
]]>Humans have kept dogs as pets for over 12,000 years. For at least that long, dogs have been biting people. In the United States, there are 70-80 million dogs—that’s almost 1 dog for every 4 people.
Although many dog bites result in minor injuries, serious injuries can and do occur. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these, roughly 20% require medical attention. The Healthcare Cost and Utilization Project notes that “Common principal diagnoses for dog-bite related hospitalizations included skin and subcutaneous tissue infections; open wounds of extremities; open wounds of head, neck, and trunk; and fractures of upper limbs.” (And I thought only elephants had trunks…)
Dog bite injuries can be very expensive to treat. The average claim rose to almost $40,000 in 2015!
Here is a brief review of the legal doctrines concerning dog bite injuries:
Although very rare today, many states used to apply the “one-bite” rule, which held that an owner was not legally liable for dog bite injuries unless he had prior knowledge of the dog’s “dangerous propensities.” This really depends on the laws of each state, but often means that the dog previously bit someone. In other words, the owner gets one “freebie” bite. After that “freebie,” he is considered to be on notice of the dog’s dangerous propensities and may be held liable for future injuries.
While the one-bite rule is used in a small minority of states, many states have modified versions of the one-bite rule (again, this is very state-specific). Two other legal theories are more common: negligence and strict liability.
To prove liability for a dog bite injury under a theory of negligence, the victim must prove that the owner had a legal duty to use reasonable care to prevent injuries to other people—both in public and those lawfully on his property. The general rule is that a dog owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability for injuries to people trespassing on the property. The definition of “trespasser” differs tremendously among states, and may depend on such factors as whether:
Next, the victim would have to prove that the owner breached the duty by failing to use reasonable care to prevent the attack. As with everything, this depends on the state’s laws, facts of the case, dog breed, size, and history of aggression and prior attacks. It may involve some or all of the following:
As with any action for personal injury, the victim will need to prove that the breach of the duty of care caused the victim’s injuries.
Many states have dog-bite statutes that impose strict liability for dog bites. Under this much harsher standard, an owner is liable for dog bite injuries even without proof that he or she failed to exercise reasonable care to prevent the attack. In other words, even if you took all precautions to prevent the attack (e.g., leashing, confining, controlling, etc.), you may still be liable, unless you can establish a legally-recognized defense. Defenses are discussed below.
In some states that apply the strict liability standard, the victim must also prove that prior to the attack, the owner knew (or should have known) that the dog had dangerous propensities. This may include:
Mere barking, chasing cars, or even jumping on people, are generally insufficient to prove knowledge of the dog’s dangerous propensities.
The defenses available to you will depend on your state’s laws. Here are a few common defenses to dog bite lawsuits (note that they may overlap):
Statutes of limitation place a time limit on a party’s right to file a lawsuit. If the victim sued you after the expiration of the statute of limitations, you can move to get the case dismissed.
If you are sued—or even threatened with a lawsuit—research what the statute of limitations is for dog bite lawsuits in your state. If you have any doubts, contact an attorney and set up a consultation.
Under this defense, the victim was negligent and caused or contributed to his own injuries. Here are some examples:
When evaluating whether a victim was negligent, children are often held to a more lenient standard because they are less likely than adults to appreciate the danger that a provoked dog may attack. In most states, children below a certain age cannot be held negligent under any circumstances.
If the jury finds the victim partially or wholly negligent, the victim may be barred completely from recovering anything, or have his award reduced by the percentage by which he was negligent.
Under this defense, the victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include, for example, approaching a dog known to be dangerous (growling, foaming at the mouth, history of aggression, etc.) or ignoring the owner’s warnings.
Generally, people who work in professions where dog bites are likely and foreseeable (dog groomers, kennel workers, animal control, veterinarians, etc.) are considered to have assumed the risk of injury by working in close proximity to dogs.
If a jury determines that the “victim” provoked the dog into attacking him, that may absolve the owner of liability. “Provocation” may include:
Under these or similar circumstances, you may have a defense to assert, even in states with strict liability.
If your dog bites someone and you have homeowner’s (or renter’s) insurance, contact your insurance company right away to report a claim. You may also need to submit a written declaration or affidavit. Many insurance policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident occurred outside of your property. Most policies require “prompt” notice of a potential claim, so do your best to notify your insurance company right away.
Once you have filed the claim, the insurance company will determine whether you have valid coverage. If the victim files a lawsuit or threatens you with legal action, your insurance company will conduct an investigation, including interviewing the victim, witnesses, and reviewing any photographs, documents, and medical records presented. It will then determine whether to settle the claim or defend you in a lawsuit.
If you have valid coverage, the insurance company will most likely appoint an attorney to defend you. Although it depends on your policy and the amount of your deductible, the attorney’s fees and litigation costs will typically be paid by the insurance company.
If you did not disclose your dog on your insurance application, or have a breed that is excluded under your policy, the insurance company may deny coverage. In that case, you will need to consider hiring an attorney or representing yourself.
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If you died tomorrow without a will, who would inherit your assets? Who would be your children’s guardian? What would happen to your remains and who would carry out that unenviable task? How would your debt and final expenses be paid?
Do you really need a will, even if you’re broke? What if you just want everything to go to your spouse?
Our guest in this episode is trusts and estates attorney Adam Becker. Adam answers all these questions—and more—to help you plan for the inevitable.
Please read The Legal Seagull’s disclaimer before proceeding with this article. Although we discuss wills and trusts generally, certain aspects may pertain specifically to California law. This article is neither legal advice nor a substitute for an attorney’s advice or services.
Here is a transcript of the interview, slightly edited for reader comprehension and enjoyment:
NL: Let’s start with the basics. What is a will?
AB: A will is a legal document that lets you decide who gets what, and at what time after you’ve passed away.
NL: What other terms are there for a will?
AB: Sometimes you’ll hear people refer to a living will. That is a different document that has more to do with healthcare decisions. You will also hear people refer to a trust, and there is a lot of confusion sometimes between what is a will, and what is a trust. The truth is that they’re related documents that usually work together.
NL: You mentioned living wills. What is it called when you simply have a will that deals with your assets, and what will happen to them when you die?
AB: We’d probably call that a testamentary will. That just means when you die there’s this piece of paper that tells people: “Here’s what I want done when I die. Who gets my assets, who is in charge of giving away those assets, who is going to look out for my children,” that’s a guardian named in a will. That’s what you typically would think of in a will that you might see in a movie or in a TV show.
AB: Anybody who has assets needs a will, and certainly anyone who has children needs a will.
NL: A lot of people . . . have said to me, “well I’m broke, I don’t have anything to give.” Or they’ll say, “I don’t care, I want my wife to get everything.” Would you agree that if you’re broke—or if you’re married—you don’t need a will?
AB: No. I think nowadays there are online services that can do a good job of providing just a will very cheaply. Surprisingly, you can also write out your own will. I’ll speak for the State of California where I practice. If you take a piece of paper, and in your own handwriting write it, date it, and sign it, that is a legal document that would express who gets what when you pass away. Now, there’s drawbacks to doing things by yourself, and writing things out can often have mistakes, but I would say it’s better than nothing in some cases.
NL: Specifically, for people who just want their spouse to inherit everything they have, do you think it’s important for those people to draft wills?
AB: Well, there are ways around a will. For example, a bank account. I can name my spouse on my bank account, or as the beneficiary of the bank account. Then, when I die, she just shows up with my death certificate and claims the assets. So, we didn’t need a will in order to transfer that asset. I could put her on the deed to my house. I can get around having a will if I want to give everything to my spouse. But if I have other people that I want to make distributions to, or if I forget one of those assets, I forget to put her on one of those assets, then I will wish that I had a will, because that can transfer to her after I die.
NL: What happens if there’s a conflict between the person you listed as your beneficiary, and your bank account, and what’s written in your will? I can’t remember who I listed for my bank accounts. I hope it’s you Olivia, but I probably need to go back and check.
OL: You’re in big trouble if it’s not!
AB: That’s a more complicated question, but I tell people to look out for this all the time. We draft a will, then the next step is to make sure that all our beneficiary designations line up with what we’ve said in the will. Because if there is a difference [and] that company that has the beneficiary designation on file, they are going to get the death certificate when you die, and they are going to say, “Sorry Neer, it says here that your mother is supposed to get this asset. Either go to court and tell us otherwise, or we’re paying this to your mother.”
AB: Like I mentioned earlier, there are online services that would help you to prepare a will. Usually they have a series of questions that you answer, and it fills out a will for you, so that would be one way. There are good wills that you can get online. [In California and some other states], you can also write a will yourself in your own handwriting, or you can go to an attorney, and have an attorney assist you through the process of preparing a will, or an estate plan.
NL: When should you consider getting an attorney, versus . . . going to one of these online services, or getting a “fill-in-the-blank” printed form?
AB: If you have children, I would certainly want to run my will by an attorney to make sure it was done correctly; to make sure that they are going to be taken care of by the people that you use; and, that the assets are going to get to them in the way that you want. If you have substantial assets, and by that I think I would say anything over $150,000, I’d want an attorney to review it. But I know a lot of attorneys who will just prepare a will for a very reasonable price, not much different from what you could pay for it online.
NL: Let’s talk a bit about blended families where you have children that are the children of both people in the relationship, and then maybe they have children from prior marriages, or prior relationships . . . I want to bring up a hypothetical to illustrate, and flesh out these issues . . . Bob doesn’t have a will. Bob is married to Heather. They have two children together, and Bob has two children from a prior marriage. Bob would like everything to go to his wife, and he figures that’s what will happen. If Bob gets run over and killed by an ice cream truck tomorrow, what happens to his assets without a will?
AB: So, Bob is married, but he’s got two children from a different marriage, and two children with Heather. If he dies tomorrow and he’s living in California, which is where I practice, everything would not go to his wife, Heather. Some people would be surprised to learn that. No will is there, so he can’t say who gets what. California law says that one-third of his assets would go to his wife, and two-thirds would go to his other children.
NL: That’s clearly not what he intended for here . . . Assuming he had drafted a will, how could this have prevented the problem?
AB: With a will, he could choose who gets what in any amount that he wants. Now, there’s some complications with community property and separate property. But just keeping things very simple, in a will, Bob gets to say “This is who I want to have my assets—and here’s the way in which I want them to get them.”
NL: Does the age of the children make a difference as far as planning whether or not you should get a will, and what the will should provide?
AB: It certainly does. If you have minor children, they can’t receive the assets until they’re 18 years old. Someone can pay for them, and provide for their needs, but they can’t get the assets until they’re 18 . . . I have a friend I was speaking with, and he told me this story of a client of his who came to him and said, “My son is the beneficiary of a wrongful death lawsuit. His mother had passed away when he was very young because she had been hit by a driver, a city employee who was drunk.” They settled the lawsuit, and now he was going to inherit from the city a couple million dollars. He said, “My son is 17 and a half, and I don’t want him getting all this money, what can we do?” Well, sadly, there’s nothing you can do. The child is going to get that money, because the contract is between the city and the child.
But my friend said, “I met with [the father and child] in the hopes of convincing the child to put some of these assets into a trust, or some other vehicle where the money wouldn’t be spent. Because who wants their 18-year-old to receive a couple million dollars? So he said, “I met with him, and we convinced him the right thing to do was to put this money up in a trust until he’s at least age 25. But his education would be paid for, his health would be paid for, if he needed money for groceries and things like that, that would be available. But he wouldn’t touch the money until he’s at least 25.” At the end of their meeting [the son] said, “Okay dad, that sounds like a good idea, except I want to keep enough money to buy a condo in Vegas and a Ferrari.” That illustrates to our clients why receiving a lot of money at a young age is usually not a good idea for children.
NL: In effect, what you’re saying is that sometimes you want to protect your kids from themselves?
AB: Correct. I always talk about two types of creditors with clients. One, up to a certain age, you want to protect people from themselves—they are their own worst creditor. Then, generally after a certain point, we’re worried about other outside creditors, and there’s ways we can help protect against those. But most people agree that until some age, 25, 30, 35, children are going to need guidance in how their money is spent, and you can set that up with the use of estate planning documents.
NL: Let’s say that: Bob’s son, Bobby Jr. . . from a prior relationship . . . [and Heather] have an on-and-off-again relationship—a very tense relationship—because Bobby Jr. and Heather just don’t get along. Bob really wants to make sure that Bobby Jr. is taken care of. What can he do as far as planning, crafting a will that will protect Bobby Jr., and make sure that he gets some money as well?
AB: This is a common question that I hear from persons in a blended marriage, where they have children from a prior relationship. They say, “Adam, how do I take care of my children from that first relationship. I know my spouse . . . [is] not going to take care of them after I go . . . what do I do to provide for them?” There’s a couple things you can do. First, you could give assets directly to those children when you die. So, in your will, you would say, “Upon my death, Bobby Jr. gets X.” But unless you have a lot of money, oftentimes those assets are going to be needed for your spouse.
You could give the assets to your spouse, and just hope that she does the right thing in this scenario and gives them to Bobby Jr., but in my experience, that doesn’t usually happen. Other “good reasons” come up for why Bobby Jr. doesn’t need that money anymore. I’ve found that a simple solution can sometimes be a little bit of life insurance. You buy some life insurance, name Bobby Jr. as the beneficiary upon your death. If you want to be a little more sophisticated you’d put that into an insurance trust. Then, when you die, that money is there for Bobby Jr., and he gets it, he’s paid out. The second spouse can go her way, and provide for your joint children as she sees best.
AB: A will is just a piece of paper until you die. One of the big differences between a will and a trust is that a will is only effective upon your death. A trust, on the other hand, can be created while you’re alive. It’s created by transferring assets (like a bank account or the title to your home) to the name of the trust. Now it’s funded, it’s called a living trust because it works while you’re alive. A good reason why you might want a will while you’re alive is if you become incapacitated. Then, somebody you’ve named in the trust, called a trustee, can step in and manage your assets for you in the event you’re incapacitated, you’re in a coma. Who can manage the family business, who could sell your home, who could cash out bank accounts, who could provide for you and your family if you’re not able to do that, that’s a trustee. If you just have a will, we have to wait until you die until we can step in and manage those assets.
NL: If instead of dying, Bob ends up in a coma or a vegetative state, what happens? Who makes the decisions for him if he didn’t have a will?
AB: . . . If he had a power of attorney that would let somebody act on his behalf in financial matters. If he had a healthcare directive in California they could make decisions for his healthcare. But if he doesn’t have any of those things then somebody is going to have to go to court to get what’s called a conservatorship. It’s expensive, and there’s fees. You’ve got to pay the attorney, pay the court, you’ve got to pay an accountant maybe to prepare an accounting of his assets. A conservatorship would then allow somebody to act on Bob’s behalf, to now make financial decisions, and decisions about his person, about his body, what happens, what kind of healthcare is he going to receive . . . We wish he would have had a power of attorney document, or a healthcare directive, or even a trust to manage his assets.
NL: It seems that whatever money he saved by not drafting a will is now going to cost his family a lot to hire an attorney, and go through this conservatorship procedure—which is not cheap—so it does seem that even though a will is an investment, you’re saving money later on, or saving money for your family in the event that something goes wrong.
AB: Definitely. You’re also saving frustration, from having to wait on the conservatorship to be approved. You’re saving time, and making it much easier for your family to provide for you if you do become vegetative. You’re making it much easier for your family to provide for you if you are in a coma.
NL: How long does it take for you to establish a conservatorship, and what happens to Bob in the meantime? I mean, he’s chilling in the hospital bed.
AB: If everyone gets along, the procedure shouldn’t take too long. But in our scenario, where we had Heather and Bobby Jr., who were at odds with one another, if Bobby Jr. is going to contest this conservatorship, to say that he’s in a better position to care for his father, then [Heather], who is now looking around or something like that, it could take quite a while to resolve this conservatorship matter. So again, if Bob had set these things up ahead of time, there wouldn’t be that issue facing the family.
NL: Do you want to be kept alive artificially? Do you want your heart to be restarted? Can you talk a bit about what important end-of-life decisions one might want to take into account, and how a will can provide for that?
AB: There’s a lot of important end of life decisions. But I think there’s generally three big ones that people are concerned with the most.
First, what do you want to have happen with your remains? Are you going to be cremated? Are you going to be buried? Do you have specific instructions? I had a friend tell me one time he wanted to be cremated, but then I was to take his ashes and scatter them in center field of Dodger Stadium, to which I laughed. I definitely don’t think that’s possible, but those are the directions he wanted.
[Second] is organ donation. You can say in advance, especially if you’re younger and healthy, “If I die, I want my organs to be donated.” Now, your family doesn’t have to make that decision. Is that something they object to, they would want to do on your behalf? You can just tell them ahead of time.
Third, the end-of-life choice. Do you want to be kept alive as long as possible? Do you want to have your life taken off of life support as soon as they can? Or, like you mentioned, do you have other specific measures? “I want to receive water—but not food.” “I want painkillers—but not something else” All of that you can spell out in a healthcare directive so your family doesn’t have to try and figure it out.
NL: When it comes to the remains that’s also something to consider. Because I, for example, don’t care. If there’s anything that can help someone—whether it’s my eyeballs, corneas, ears, heart—they are welcome to take it. But I totally understand—and I respect—that for a lot of people, there’s parts of their body that are very personal, and that they wouldn’t want to give up.
There are obviously the eyes and facial features. They do facial transplants now, and that could be very weird for your family, or uncomfortable knowing that your face is on another person. Likewise, for people who have experienced horrific accidents, they have genital transplantations, which I think most people would find kind of weird and would want to make a specification either way in their will. So, I think that’s definitely something you want to include as well, as far as what should be donated, and what should they not take from you.
AB: In a living will, or a healthcare directive, you can be as specific, or as broad as you want. You can just say simply “I agree to all organ donation,” and now your family gets to make those decisions. Or, you can say, “I agree to organ donation, but I want to keep my eyes, and a few other parts too.” So, ahead of time, you can tell your family what you’d like done. We were saying during a break, I think it was Olivia, one of the important things is not to have any surprises. You don’t want to surprise your family with any strange requests once you’ve passed away.
NL: Too late for that, my will is drafted. Actually, Adam, I wanted to ask you . . . You did the will for Olivia and I, and I recall there being a conversation about what parts of the body to donate. Olivia specifically…
OL: Your heart belongs to me!
NL: Okay. Well, what I was thinking was that I recall [Olivia] saying that [she] didn’t want [her] brain transplanted into another person. Adam, is that a real thing? Can they do brain transplants yet? If you don’t want to get in the middle of this lover’s quarrel, I completely understand.
AB: Well, Neer, I don’t know if Olivia is going to want your brain, but whether or not they can do a brain transplant, you’d have to speak with a neurologist. To answer it from the legal perspective, you can put whatever restrictions you want into your healthcare directive.
NL: . . . Let’s get back to Bob quickly. Let’s kill Bob again . . . he’s dead and now there’s no will, so there’s no provision as to what should be done with his remains. Bob wants to be cremated—that’s what was done with his parents’ remains—that’s just what he wants to do. Heather, on the other hand, has strong beliefs that when someone dies they should be buried. Bobby Jr. watched a really cool YouTube video about how some people are being frozen so that in the future—if it’s possible to resurrect them—they are kept intact. Now we have a dispute: There’s Bob’s wish, which is not written anywhere in a will. There’s Heather’s belief that people should be buried. Then, there’s Bobby Jr., who wants to deep-freeze dad. What happens under the law in this scenario?
AB: Well Neer, I’ve had several people tell me that they want to be frozen—like Walt Disney or Ted Williams—when they die. I’ve always said, “That’s fine, but how are you going to pay for it?? I don’t think freezing is free yet, so someone has to pay for that. So, I’d probably say to Bobby Jr., “Unless there’s enough money in this estate to pay for a frozen father, your idea is no good.” Ultimately the answer, as you know with all legal things, is: If you can’t decide, then you end up in court, and the judge will tell you what to do. So, in this case, they’re just going to have to work it out. The family will have to compromise. This is another good reason of why having a will, or a healthcare directive would avoid this dispute.
NL: What happens if they just can’t compromise? Heather and Bobby Jr. each have their own opinions, they try settling, mediating, nothing is happening, they just can’t agree.
AB: Then they’re going to end up in court explaining to the judge why their reason for Bob being buried or cremated is the most important, and the judge will make a decision.
NL: In your law practice, when do most people come to see you for a will?
AB: I’ve joked that if we were to ever advertise, we should do it in a travel magazine. Most people come to see me right before they’re going to take a long trip. I guess they’re thinking [that] if the plane goes down, they want to be prepared. The second most common time people come to see me is after somebody they know has died, and now it’s on their mind.
I guess the third most common would be children who are just concerned about the ailing health of their parents; they want to make sure the affairs are in order before anything happens to mom and dad. But really, if we did it right, everyone should do this early. It is much easier to get things in place earlier in your life than to wait at the end when you have more complicated family arrangements, and a more complicated maze of assets.
When you have a child, or are about to have a child is a great time to get your affairs in order. You need to choose a guardian. My wife and I took three years to decide who was going to be the guardian. Now, I don’t care so much that I have children, but before the first one came, we just could not decide who would be the guardian of our children, and made it much more complicated than we needed to.
Before you buy a home is a good time to do your estate planning. Once you own a home, the post-death administration is more complicated because you owned real estate than before you bought the house.
Before you inherit assets is a good time to set up an estate plan that is going to provide for your own family. I’ve also found recently with children going to college away—out of state or in a foreign country—is a good time to have that child set up a very simple will, or to at least give you power of attorney for their own healthcare, and their own financial decisions.
NL: . . . Obviously, when you’re dead it’s too late to get a will, and if you’re incapacitate completely, or if you’re in a coma. But is there anything in between where it’s just too late, you just have to wait it out?
AB: One of the hardest areas for us as estate and trust attorneys is determining when somebody has lost the capacity to sign a will or a trust. It’s a very gray area, it’s heavily litigated. To avoid any of that litigation, you want to have documents signed well in advance—so there’s no questions as to whether or not your parents—or you—had capacity.
NL: Can you give an example of when someone has questionable capacity, something that could be challenged in a court of law?
AB: Someone who is not able to make decisions for themselves. They live with the assistance of others, they have a documented diagnosis of dementia or Alzheimer’s. Now, that doesn’t mean they can’t sign a legal document, because they can have moments of clarity. It just means you’re in for a probable lawsuit to try and prove that they did have capacity.
–END OF INTERVIEW—
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If you would like to learn more about living wills and health care directives, we did a separate episode on that topic:
]]>When it comes to uncomfortable conversations to initiate with your spouse-to-be, few discussions are more dreaded than that of whether to get a prenup. Will he think I’m greedy and obsessed with money? Will she think I don’t trust her? Will he doubt that I love him?
Please read The Legal Seagull’s disclaimer before proceeding further. This article is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.
Some people worry that getting a prenup kills the romance by planning for a divorce before the wedding, at a time when the couple is madly in love and planning a future and family together. Others believe that a prenup is a self-fulfilling prophecy: Plan for a divorce and that is what you will get.
For others, prenups do not necessarily present a moral or philosophical dilemma. They simply do not believe they will get divorced. This is not all that surprising. People tend to be optimistic—and love and passion sometimes cloud rational decision making. While most people know the frightening statistics—between 40-50% of marriages in the United States end in divorce—no one expects his or her marriage to fail.
Many people never consider a prenup because they believe (mistakenly) that only the rich and famous need them. We’re both broke, why should we waste money we don’t have on something we won’t need? This is another common misconception. As discussed below, prenups can even be drafted to protect someone from his or her spouse’s debts, and to protect the spouse who is less financially stable.
Marriage is like a business. You need to plan how to pay bills; feed yourselves; save money; manage debt; afford a home; and, eventually, start a family (not necessarily in that order). If you do not bring up the “M-word” (money) prior to marriage, it will come up after. I can personally guarantee that.
Even if you ultimately decide not to get a prenup, strongly consider meeting with an attorney to discuss whether a prenup is in your best interests. Many attorneys offer free consultations for that purpose.
There are two different systems for distribution of assets upon divorce—community property and equitable distribution. As of 2017, community property is the law in Arizona, California, Idaho, Nevada, New Mexico, Texas, Louisiana, Wisconsin, Washington, and Alaska (optional). This amounts to about 25% of the population of the United States. In community property states, income, assets, and debts obtained during marriage are split equally (50-50) between the spouses.
In the remaining states (the majority) of the United States, the prevailing law is equitable distribution. Under this system, the judge has broad authority to distribute assets and liabilities in an equitable (fair) manner. Depending on the state, the judge may consider, among other things:
If you have assets you acquired prior to marriage, you probably want to protect them. This may include bank accounts, stocks, bonds, real estate, vehicles, personal items, jewelry, or a trust fund. This is especially important in community property states.
Here is an example: Peter and Lois are about to get married. They live in a community property state. Peter has $25,000 he inherited from his mother and another $30,000 he saved while working at the local ice cream parlor.
In theory, the assets acquired prior to marriage are Peter’s separate property and Lois would not be entitled to them upon divorce. The problem arises when assets get commingled, making it difficult to trace the source of the original assets. For example, Peter and Lois may:
As the months and years go by, it becomes more and more difficult to determine what portion of the assets originated from Peter’s premarital assets. A well-drafted prenup may protect Peter from a contentious and expensive divorce and from losing a significant portion of his premarital assets.
Depending on the state, a prenup can protect income you earn during marriage and even limit the amount of alimony your ex-spouse can collect.
Here is a simple (perhaps over-simplified) example to illustrate this point:
Tarzan and Jane live in a community property state. Prior to marriage, Tarzan had $10,000 in savings, which he maintained in a separate account throughout the marriage. During their 20-year marriage, Tarzan refused to work, spending every day swinging on trees, eating bananas, and pounding his chest ferociously. With Jane working three jobs, the couple managed to save $200,000. When Tarzan filed for divorce, he kept his $10,000 premarital savings and half ($100,000) of the couple’s joint savings.
I am NOT suggesting that Tarzan should not be entitled to anything because he did not work. Many families consist of one wage-earning spouse, with the other primarily responsible for raising children and managing the household. In some families, a spouse cannot work due to disability, illness, or incapacity. In this particular scenario, however, Tarzan does not appear to be contributing much of anything. A prenup could have eliminated Tarzan’s share of Jane’s wages, or at least limited it (e.g., 15% instead of 50%).
You might be reading this article and thinking, “When I die, my will already spells out who gets what.” Keep in mind that a will can be contested. If the will is successfully contested and invalidated by the court, your assets may be distributed in accordance with a prior will or your state’s intestate succession law. Here is an example:
Martha and George are a childless married couple living in the State of Atlantis. Before they married, Martha had $50,000 that she won in the Atlantis lottery. Martha’s will states that upon death, the $50,000 should go to her sister Abigail. Martha is killed in a duel. George challenges the will on grounds that it did not comply with Atlantis law because it was not signed and there was only one witness instead of two. The judge sides with George and invalidates the will. With no valid will, Atlantis’ intestate succession law applies. George inherits everything, including the $50,000.
Wills can be contested on numerous grounds, including but not limited to:
If Martha and George had negotiated a prenup listing the $50,000 lottery prize as Martha’s separate property, George would not be entitled to that $50,000 upon her death. The moral of the story: Before participating in a duel, make sure your affairs are in order. Just kidding, do not participate in a duel! The real moral of the story: A prenup can serve as a “backup” if your will is found to be invalid.
When negotiating a prenup, soon-to-be spouses anticipate potential points of disagreement and determine in advance what will happen to their assets (and liabilities) if they divorce.
When you are in love and planning a future together, discussing the division of your assets upon divorce can be a very uncomfortable conversation. But if you think that is hard, imagine that same conversation during a bitter divorce proceeding where each of you is represented by an aggressive attorney. Did I mention that each attorney bills at a rate of hundreds of dollars per hour?
In law and love, nothing is certain; however, a well-drafted prenup can eliminate or reduce unpredictability, conflict, and financial loss. The few hundred—or thousand—dollars you save by not getting a prenup could cost you tens—or even hundreds of thousands—in attorney’s fees alone.
Children from a prior relationship can introduce uncertainty and tension into your upcoming marriage. If I get divorced, will my spouse take money that I saved for my kids? If your soon-to-be spouse has children, he or she may have the same concerns.
Whether you discuss it with them or not, your children may also be anxious. Will dad’s new wife get all of my future inheritance through divorce or death? What will happen to Grandpa’s priceless watch?
A properly-drafted prenup can substantially reduce uncertainty, protect your children’s financial future, and allow everyone to breathe a sigh of relief.
A prenup can help protect the business you worked hard to create and grow. Even if you built a successful business prior to marriage, you could still face a claim by your ex-spouse that he or she is entitled to partial-ownership or some interest in the business. This is especially true in community property states if joint efforts were invested to support and build the business.
To prevent or reduce the likelihood of this scenario, a prenup can specify that some (or all) of the business is your separate property—even if your spouse contributes money and labor into the business.
If you have business partners, they will probably be thankful that you did some planning. Imagine this scenario:
Mario and Luigi are general partners in a plumbing business. Mario owns 60%; Luigi owns 40%. Mario’s wife, Peach, files for divorce, and ends up owning half of Mario’s share. Now, Mario owns 30%; Peach 30%; Luigi 40%.
Neither Mario nor Luigi can stand Peach, who does not know a darn thing about business or plumbing, and who left Mario for Toad, a young Salsa dancer. Because the three do not always agree on company decisions, they are often deadlocked, with no one holding a majority. Every month, the brothers must write Peach a check for her share of the business’s income. Mario and Luigi rarely enjoy each other’s company anymore. Mario cries himself to sleep most nights and wishes he had negotiated a prenup with Peach.
Generally, a person is not liable for debts incurred by his or her spouse prior to marriage (again, read the disclaimer!). Nevertheless, if you and your spouse end up commingling your assets (e.g., joint bank accounts, etc.) it may be difficult to determine who owns (or owes) what. Moreover, if you decide to refinance or consolidate your debt, things get even murkier. The last thing you want is to be liable for your ex-spouse’s gambling debts, alimony from a previous marriage, back taxes, and more.
Consider including a provision in the prenup that all debt acquired prior to marriage will remain separate and that each spouse will not be responsible for debts acquired by the other during the marriage.
Each state has its own laws regarding the division (or non-divisibility) of degrees and licenses upon divorce. Degrees and licenses are inherently expensive—often costing over $100,000. They are also extremely valuable because they significantly improve earning potential and employment prospects.
Oftentimes, a person will sacrifice his or her career to financially support a spouse in obtaining a degree or license. This leaves the supporting spouse vulnerable in the event of a divorce. On the other hand, the spouse who obtained the degree will continue benefiting from it for the rest of his or her life.
Here’s another hypothetical: During her marriage to Mark, Cleopatra earned her nursing degree. Most of her tuition was paid for by her parents and some money she inherited from her grandparents. They decide to get divorced. Mark claims that based on their state’s laws, he is entitled to a portion of the nursing degree’s value (in addition to Cleopatra’s future income) because the degree was obtained during marriage.
A decent attorney could have anticipated this problem and drafted a prenup specifying how the degree should be valued and divided upon divorce.
It is not uncommon for a person to sacrifice his or her career to raise children or benefit a spouse’s career. This may include relocating, quitting a job, or giving up a career.
Take this example: Josephine and Napoleon fall in love and decide to get married. Josephine quits her job as an advertising specialist in Los Angeles (with a salary of $80,000 per year) to move to Cleveland and start a family with Napoleon. Before she quit, Josephine was on track to be promoted to junior vice president and get regular increases in her salary. Napoleon just started his career as an architect, also making $80,000 per year. With Napoleon as the breadwinner, Josephine focuses on raising their two children, Genghis and Khan.
Ten years pass, and the couple decides to divorce. Now, Napoleon earns $250,000 per year and has a promising career. Josephine, on the other hand, sacrificed her career years ago and must now start from scratch, probably making significantly less money than Napoleon—and less than she was making before.
Without a prenup in effect, Josephine is at a significant disadvantage and may have a hard time supporting herself.
If you are planning to get married, hopefully this article has not scared you away from the altar. Prenups are not for everyone; however, a sensible prenup can protect your financial future, reduce or eliminate uncertainty, and make divorce less contentious and expensive.
Even if you think divorce is unlikely, do yourself a favor and consult with a family law attorney to determine whether a prenup is right for you.
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Defenses to DUI / DWI Cases: Drunk Driving, Drugs, and the Law from The Legal Seagull on Vimeo.
Driving under the influence of alcohol or drugs (DUI) is illegal in all 50 states. Some states refer to this as driving while impaired or driving while intoxicated (DWI).
I interviewed Deputy Public Defender Omid Haghighat about the ins and outs of a DUI / DWI case, including potential defenses. Although we covered many common DUI / DWI issues (that may be applicable in your state), parts of this article pertain specifically to California law. Please read The Legal Seagull’s disclaimer before proceeding with this article.*
Here is a transcript of the interview, slightly edited for reader comprehension and enjoyment:
NL: Omid, welcome to the show.
OH: Glad to be here.
NL: What are the different types of DUIs? We all know about the 0.08% blood alcohol content level. A lot of people tend to think that’s pretty much the prime ingredient in most DUI convictions. What are the different types?
OH: In any alcohol DUI charge basically you’re dealing with two charges. You’re dealing with one that says that you were driving and you had a blood alcohol level of over 0.08%. You have another charge that says you were driving and you were too impaired by either drugs, or alcohol, or a combination of both, to drive safely. It’s a little more complicated than that, but those are essentially the two types of charges.
Let’s assume that we’re just talking about alcohol right now. Let’s say someone is driving, they get pulled over, they do a breath test ultimately, and they have a 0.14% blood alcohol level, according to the breath test machine. They can be charged with both driving with over a 0.08%, and being too impaired by alcohol to drive safely. If we’re talking about your blood alcohol level we’re talking about having tested it with either a breath test machine, or a blood test. So insofar as you’re using some scientific method to test your blood alcohol level, those are scientific.
When it comes to being too impaired, or rather driving under the influence without the requirement of a blood alcohol level, there are a number of tests that officers use that are not testing your blood, or your breath, but in fact are testing your ability to do certain field sobriety tests, or otherwise. This is all regulated by the National Highway Traffic Safety Administration. Some of the tests that they have designed are said to be scientifically validated. So insofar as those tests are done correctly, and are scientifically validated, many prosecutors and officers will say that those are scientific tests as well.
NL: So we’re going to get into this whole area of the field sobriety tests, which is one of the things that most people know about, the whole “touch your nose,” “recite the alphabet backwards,” “try and walk in a straight line,” we’ll get to that. But it sounds like there might be some dispute over whether these tests are all valid, or that they successfully measure impairment. Let’s walk through the entire process. Let’s start with the time when someone is driving a car, they’ve left a bar, or their home, wherever it is that they’ve been having a good time, and they get pulled over. Now, there’s one of two ways this could happen. One is that they get pulled over the way everyone is probably used to getting pulled over, and then there’s the DUI stop. So why don’t we start with that. Take us through it. What happens at that point?
OH: Well I just want to add that sometimes it’s not that they’re pulled over, but sometimes they get into a car accident. Then, when the police officers arrive and do a little investigation they start to realize that maybe one of the individuals in the car was under the influence. So that’s another way that essentially someone can have an officer initiate a DUI investigation.
NL: Let’s start first with the whole DUI stop. The type that many of us in L.A. are used to, where you’re driving and all of a sudden you see a sign that there’s a sobriety checkpoint. What are your rights essentially when you see a sobriety checkpoint ahead? Is it illegal to turn your vehicle around to try to avoid it? I’m not suggesting that anyone should do that, but only to see what are the rights that are available to you as of the time that happens.
OH: Well as far as I know, a DUI checkpoint isn’t like a black hole. If you come within the vicinity you aren’t required to be sucked into its oblivion. If you do turn around, however, an officer can see that, and oftentimes they do have officers in the outskirts of those checkpoints looking for people who are turning around. If the officers do see you turning around, that can raise their suspicions, and they can attempt to pursue you, and see if you commit a Vehicle Code violation, and then pull you over and initiate a DUI investigation. Otherwise, if you drive into the DUI stop—you’re there—and you have to comply with the officer’s requirements.
NL: Now once you’re either pulled over, or you come to a DUI checkpoint, or it’s an accident, there comes a point when the police officer suspects you’ve been drinking, or at least claims to have suspected that you were drinking. What types of questions are they allowed to ask at that point in the investigation?
OH: Well an officer can ask you anything. This is assuming that you’ve come into a legal checkpoint, or if you’ve legally been pulled over. An officer can ask you anything. The kind of questions they’ll ask is:
OH: The “Where are you coming from” is a question meant to see if you’re coming from a bar, and that will make them suspicious. But essentially they’ll ask these questions of anyone if they’re slightly suspicious of a DUI, but they don’t really begin to trigger their DUI investigation, I think, until they see what I consider the Holy Trinity of objective symptoms of drinking.
NL: What’s the Holy Trinity?
OH: I call it the Holy Trinity, they’ll put this in the report:
NL: I have read, without exaggerating, about 5,000 to 10,000 police reports in my career thus far. I strongly believe that there must be some bank that they draw these from, or that they’re copy-pasted, because I cannot tell you how many times I’ve seen this described the exact same way. “I detected a strong odor of alcohol emanating from his person.” Do you have any idea how this happens, that all these police officers tend to describe this in the exact same way?
OH: I have some opinions. I’ve seen this happen, and I think there are two reasons for it. You’re never going to see a police report without these three things, because no officer is going to do a DUI investigation over someone that doesn’t seem like they’ve been drinking alcohol, so you’ll never see that police report. But on the other token, officers need to justify the DUI investigation, otherwise the results of their DUI investigation can be suppressed in what is called a suppression motion. That’s a Fourth Amendment violation motion. Because they can be said to have no reasons to prolong what should have been a routine traffic stop, and initiate a DUI investigation. So it depends on how cynical you are, really.
NL: This gets us to one of the main points here. So a police officer needs probable cause, is it, or reasonable suspicion of alcoholic impairment before they resume with any type of investigation, or asking you to submit to testing?
OH: If a police officer pulls you over, all he needs is some reasonable suspicion to pull you over, that you committed some Vehicle Code violation, or that you might be under the influence. Let’s just talk about that. What does it take to be pulled over? Some people get pulled over for very obvious “under the influence” reasons. They are straddling lanes, maybe they’re in between two lanes. Maybe they’re swerving within their own lane. Maybe they’re drifting into another lane. Some of them are speeding, or maybe some of them are just driving erratically. People can be stopped for other reasons. I’ve had many DUI cases where someone was stopped because they had no seatbelt, they had an expired registration, their tail light was out. I even had an individual pulled over because his trailer hitch covered a tiny portion of his license plate number. So once they get pulled over all that’s required is reasonable suspicion.
If the officer approaches the vehicle, and he smells the alcoholic breath, sees red, watery eyes, and he hears slurred speech, that can be enough for him to have further reasonable suspicion that you may be under the influence, and he can initiate a DUI investigation. They have that right. Now they don’t necessarily need probable cause until they arrest you. You’re not technically arrested, according to the police, until the end of a DUI investigation. So while they do need probable cause to arrest you, and take you to the station, the entire process, including the field sobriety test, the questions that they ask you, and even the preliminary alcohol screening breath test that they give you on the field, that’s all part of them establishing whether or not they have probable cause to arrest you, and take you to the station.
NL: One of our past episodes of The Legal Seagull, Episode 2, You Have the Right to Remain Silent, was about Fifth Amendment rights, the right to avoid self incrimination by not speaking to the police under many circumstances. Do you have the right at the time you’re pulled over to refuse to talk to a police officer?
OH: Absolutely. You obviously don’t want to be a jerk about it, because you’re not going to help your case. No one got out of a traffic stop, whether or not it’s a DUI, or just getting pulled over for a ticket, by being a jerk to the police officer, I can tell you that for sure. But you’re very much within your rights to say, “Excuse me officer, if you don’t mind, I’m going to decline to answer any of your questions.” If the officer thinks that you smell like alcohol, or that you’ve got slurred speech, then he can still initiate his investigation, despite you saying anything. You can remain silent, but that doesn’t mean that he can’t continue his DUI investigation.
NL: Even if you don’t smell like alcohol though, and you were to say to the police officer when he or she asks where you’re coming from, “Officer, I’m exercising my Fifth Amendment rights not to incriminate myself.” Couldn’t the mere refusal to answer a simple question like that be the basis for an officer’s reasonable suspicion that you must have been drinking?
OH: Not in court. If an officer puts in his police report that he pulled someone over because they weren’t wearing their seatbelt, it was late at night so he asked them, “Have you had any drinks?” Then the individual responded that, “You know, Officer, I’m not going to answer those questions, I don’t want to incriminate myself.” Without the other facts, the Holy Trinity, if you will; the breath, the slurred speech, the bloodshot eyes. If he was to initiate a DUI investigation, and take you back to the police station, and let’s say he takes your blood, and you have a 0.15% blood alcohol level, very likely in court that wouldn’t stand up. Because essentially he had no reason, he had no articulable facts to believe that you were under the influence of alcohol. He can’t use your Fifth Amendment right to remain silent as reason that you’re guilty.
NL: The most popular question that’s asked is, “Have you been drinking tonight?” to which it seems like everyone always responds, “I had two beers with dinner, Officer.” At that point, what happens next?
OH: Well, it really depends. Look, the officer has a great deal of authority in that moment. A lot of the better trained officers kind of look into your objective symptoms, just by standing right in front of you, and decide, you know what, I don’t think this person is under the influence of alcohol, and they can let you go. What we can assume for your hypothetical is that the officer is absolutely hell-bent on doing a DUI investigation on you, and whether or not he’s allowed to based on that. So if you do admit that you’ve had drinks, even absent the objective symptoms, that may be enough for him to initiate his DUI investigation.
NL: Now let’s talk about these field sobriety tests, as we discussed earlier. What is the state of the legality of these types of tests, and their admissibility into court in California? I imagine that this might be similar in other states, but as you answer this I’m aware, and the audience should be aware, that you’re speaking about California law.
OH: Well, they’re certainly legal. These are tools in the officer’s tool belt with which for them to decide whether or not you may be under the influence of either alcohol, or drugs, or both. It’s all for developing probable cause that you’re under the influence. They’re absolutely legal, and it really depends on who you ask whether or not they are useful.
NL: Can they be refused?
OH: That’s a good question. An officer will never tell you that these tests are voluntary. However, you may absolutely refuse them in California without any consequence. But just know that if you refuse those field sobriety tests, and the officer does believe that you might be under the influence, you’re pretty much asking for a trip to the police station.
NL: Let’s assume, for purposes of this discussion, that in the first scenario, you agree to do these field sobriety tests. What are the different types of tests, and what is their reliability, or scientific basis if you will?
OH: There is an entity called the National Highway Traffic Safety Administration. They essentially are the ones who are behind a lot of the rules, and regulations, and a lot of the uniform field sobriety tests that happen around the nation, amongst other things. They have spent lots of money, and there has been lots of money poured into them, to scientifically validate certain studies. While there may be many field sobriety tests that people talk about, there’s actually only three scientifically valid field sobriety tests.
The first one is a mouthful. It’s called the horizontal gaze nystagmus test. It’s essentially a test, without getting into too great of detail, where the officer is testing to see if you’re under the influence by looking at the behavior of your eyes as they track a stimulus; sometimes a pen light, sometimes just a pen, that the officer is holding out in front of your face. What the officer will essentially do is he’ll instruct you to stand up straight, put your arms at your side. He’ll hold the stimulus about 12 to 15 inches from the bridge of your nose, and he’ll move it from left to right. He’ll essentially be looking for nystagmus, which is a jerking motion in your eyes. There are a couple of clues that the officers actually look for. In fact, there are six clues that they look for. The science has shown that this is, actually, if done properly, one of the best field sobriety tests for predicting whether or not someone is under the influence.
There are actually scientific studies which lawyers are often trying to keep out of court that say that if it’s done properly, you may even be able to assign a blood alcohol level to certain results of this Horizontal gaze nystagmus test. The problem arises, however, because a lot of officers don’t know how to do it correctly. It requires precision. It requires precision with how far the instrument is held from your face, how far to the side you hold the stimulus, and so on and so forth. One thing that is ripe for cross examination in trial is whether or not the officer conducted the test properly. The science is clear: If they do not conduct the test properly then the results are drawn into question.
OH: The next test is the walk-and-turn. The officer has no obligation to give you these tests in any order. But the walk-and-turn is probably the most commonly known field sobriety test. The walk-and-turn test, the officer instructs you to stand with your feet one in front of the other, touching heel to toe, keeping your arms at your side. Then they tell you to count nine steps, tell you to do a turn. They instruct you on how to do the turn, and then to walk nine steps back. They are also looking for a number of clues. Those clues include whether or not you actually were able to touch your heel to toe on every step, whether or not you actually kept your arms at your side. Whether or not you stumbled, or whether or not you were falling from side to side. How you performed the turn, and in general, whether or not you were able to listen to the instructions.
The point of these field sobriety tests is that they are simulated, divided attention tasks. The idea is that driving is a divided attention task. You’re looking forward while you’re pressing the gas, while you’re also focusing on traffic around you, and trying to look at where you’re going . . .
The idea is that mental impairment, when you’re under the influence, begins to manifest before physical impairment. These tests are divided attention tasks that measure both mental impairment, and physical impairment. In the case of the walk-and-turn, they are essentially seeing: can you follow instructions, and do as the officer told you? (mental impairment). But also, be able to maintain a straight line, and turn without falling over yourself? (physical impairment).
OH: The final scientifically validated test is the one-leg stand test. I think this test is really unfair . . . Depending on your physical fitness level, depending on whether or not you’ve had any injuries, this test could be very difficult to perform, even for a sober person. Essentially, one-leg stand is, you’re asked to stand with your feet together, your hands at your side, and you’re asked to lift your leg up at least six inches, and point your toe forward.
Some officers will ask you to count to 10, some officers will ask you to count to 20. They instruct you if you put your foot down to just lift it back up and resume counting. Then, after that’s done, they’ll ask you to do it with your other foot. The idea is that they’re looking to see: Can you follow instructions, are you using your hands, despite the officer instructing you not to? Are you swaying from side to side? Are you able to count while holding your leg up, and pointing your toe forward, a divided attention task. There are a number of clues, and those clues have to be marked down, and noted properly, because that’s the only way this test has been scientifically validated.
Those are the three scientifically validated tests. Again, there are many things that can make these tests unuseful in a court of law, or for the officer. For example, if the test is not done in the right circumstances. If it’s not done on level pavement. I had a case where the officer had my client do a field sobriety test on a hill. Of course, he didn’t write that in his police report, but when he wrote the location of where he did the test, I looked it up on Google Maps and I saw that it was a hill. I showed him the map on the stand and asked him, “Isn’t this a hill?” Needless to say, that officer was a little red in the face, because it was a hill, and that absolutely affects your ability to do these tests properly.
In addition, whether or not you’ve had an injury can affect whether or not you do these tests properly, and whether or not the results are actually valid. Especially if you’ve had a head injury, like in the example of getting in a car accident. Obviously, if there’s a car accident, and there’s a suspicion of drunk driving the field sobriety tests are done, and that head injury can cause you to fail all the tests even if you are sober.
If the officer does these tests correctly, and in the correct circumstances, then what the National Highway Traffic Safety Administration says is that these three tests are scientifically validated to show if someone is too impaired by either a drug or alcohol. These are tools that the officer uses to form an opinion.
Now if the officer can say, or an expert can say, that they are scientifically validated, that just helps the jury consider the officer’s opinion with respect to those tests. It doesn’t change whether or not they’re allowed to be heard in court. With that said, it doesn’t need to be a scientific test to inform an officer’s opinion. But if it’s not a scientific test, then defense attorneys oftentimes will use that to say, “Well, if this test isn’t scientific, why are we using it to convict a man of a crime?”
NL: So where does this leave the other tests? What about the recite the alphabet backwards test? Any scientific validity for that?
OH: Absolutely not. I think that’s one of the most unfair tests that you can have, because some people don’t even know the alphabet. No, but seriously, it’s a difficult test for a sober person to do. Try it right now. Try to recite the alphabet backwards. You’ll probably do it slowly, and the officer will probably be able to write things that make you look like you’re doing it slowly, and then say in court that you were probably under the influence of a drug or alcohol.
OH: There’s another test that’s commonly used called the Romberg test. You stand with your feet together, hands at your side. You close your eyes, and you tilt your head back, and count to 30. What the officer will tell you is that you want to estimate 30, and then tell the officer when you believe you’ve reached 30. The officer has a stopwatch right there, and he’s also finding out what 30 seconds actually is. The idea is, depending on what your jurisdiction is, or what the officer is using in his consideration, if you complete the test at plus or minus five seconds of 30 seconds. Sometimes, some officers believe 10 seconds of 30 seconds, then you’re within an acceptable range.
But if you, for example, tell the officer 45 seconds have gone by, but really you think it’s 30, probably you’re under the influence of some depressant. However, if you’re on, for example, a stimulant, like if you’ve done lots of cocaine, and then you get pulled over, you’ll probably count 5 seconds, and then you’ll be like that was 30 seconds. Then the officer will just look at you funny and be like, “This guy is probably under the influence of a stimulant.” So, the test, while it’s not scientifically validated, can help inform them of the type of drug that they’re on, even if it doesn’t mean that they’re scientifically validated.
NL: What about the “touch your nose and stick your tongue out,” or whatever it is?
OH: The “touch your nose” is commonly used . . . it’s another divided attention task, because you’re switching arm to arm, and attempting to touch your nose with your eyes closed, and your head tilted back. Again, if it’s not scientifically validated it doesn’t mean the officer can’t use it to form his opinion, and it’s doesn’t mean the officer can’t testify to it in trial, it’s just a matter of what weight the jury gives it at the end of its determination.
OH: In California, unless you’re on DUI probation, you don’t have to do the preliminary alcohol screening device breath test at the scene of the incident, whether it’s being pulled over, or a car accident. The officer in fact has to admonish you that the test is voluntary, whereas, as I said before, they don’t admonish this for the field sobriety test.
Now understanding that, if you don’t do the preliminary alcohol screening device the officer is likely going to take you to the police station, and ask you to do one of the required by law, at least in California, breath or blood tests.
It’s completely up to you whether or not you want to do it. Some people make that choice, some people choose otherwise. Now, the preliminary alcohol screening device is probably the size, depending on the actual device, a little bigger than your fist, maybe a little bigger with its battery pack than that. The officer has it in his vehicle. It’s considered a field sobriety test by officers, meaning that it’s not considered a chemical test. However, the technology that it employs to determine your blood alcohol level is the same as the machine at the station, which is much bigger, much heavier, and a little more technical.
The idea behind a breath test is actually interesting. Because the idea is you’re breathing into a machine, and it’s determining how much alcohol you have in your blood. Without getting too detailed into the science of it, essentially these little alveolar sacs in your lungs can emit some level of alcohol from your bloodstream. There’s a partition ratio, essentially a ratio of the amount of alcohol that’s emitted into your lungs, compared to how much alcohol . . . in your blood . . .
. . .
When you breathe into the machine, that tiny amount of alcohol that’s in your deep lung air gets multiplied by, sometimes the number is 2,100, and that’s how they determine how much alcohol is in your blood. That’s essentially the idea of the machines.
. . .
NL: Can [these breathalyzers] also detect marijuana, other drugs, or just alcohol?
OH: Those devices are essentially designed to test ethyl alcohol. That’s a chemical in alcohol. What happens is when you breathe into these machines there’s a fuel cell inside of the machine, and it responds to a number of chemicals, one of which is ethyl alcohol. It creates a charge, and the strength of that charge then indicates through a complicated algorithm, what your blood alcohol level is.
NL: I’ve been hearing about field tests now that are done to detect marijuana. Do you have any idea how those work?
OH: Yes. Essentially, what they do is they have a bag of Funyuns, and they hold it in front of you. If you cannot resist the Funyuns then they have determined that you are under the influence of marijuana.
Actually, it’s not like that at all. This is a brand new approach—certain law enforcement agencies are testing it out. There has been to date no way to test whether or not someone has marijuana in their system. In the field, they’re applying this swab . . . they swab your cheek, and they test the cheek cells, and they determine whether or not you may have marijuana in your system. Not a lot of law enforcement agencies use this, and as of now it’s nothing more than a tool for determining probable cause, whether or not you might be under the influence of marijuana. The ultimate tool is the blood test, sometimes the urine test.
NL: Before today you had told me some really interesting things about the marijuana test, how it might be a little bit less than scientific in determining impairment.
OH: Yes. Absolutely. The marijuana test is a very frustrating test for me as a criminal defense attorney. It essentially can’t show a lot depending on the test results, other than this is a chronic smoker who may or may not be high at the time of being tested. When your blood is tested for marijuana, it’s tested for two things . . . an active THC ingredient, and an inactive THC ingredient.
[The inactive THC ingredient is] called carboxy-THC, it’s a metabolite. The metabolite is like ashes to the fire. It can show that you have smoked maybe as recently as that same day, or two or three weeks prior. It’s a number that’s measured in nanograms per milliliter. Certain law enforcement agencies will look at that in determining whether or not someone might have been under the influence of marijuana.
Then there’s the active ingredient . . . most laboratories will only test the number of that active ingredient from 2 to 25 nanograms per milliliter. That active ingredient can show particularly if you have marijuana in your system, but not that you’re under the influence of marijuana. I want to make that distinction clear. Because just like alcohol, you can have alcohol in your system, but not be too impaired to drive, which is essentially the legal standard in California. What that means is there is no way to look right now, according to the scientific evidence, at the amount of active THC in your blood, and determine that you’re too high to drive essentially. What means, again, for people who are chronic smokers can be pretty bad. Let me give you some scenarios.
Let’s say you’re a medical marijuana patient, which is legal in California, and you smoke marijuana every day. Let’s say you smoke on Wednesday night to go to sleep because you need it to go to sleep. You wake up the next day, you feel fine, and you drive to the store, and for some reason you’re pulled over. Maybe because you’ve had marijuana in your car, from purchasing it from the dispensary, your car smells like marijuana. The officer says: “Have you had anything to smoke,” and you say, “No.” Let’s say the officer sees some other things that he thinks might be indicative of you being under the influence of marijuana. Understand that in this hypothetical, you’re not under the influence of marijuana—the last time you smoked was the night before.
He can take you to the station, he can do a blood test. Essentially what can happen for a chronic smoker is a very high result of the marijuana metabolite, the inactive ingredient, and a tiny, yet measurable active THC in your system.
The reason for that is that if you’re a chronic smoker the scientific studies have shown that chronic smokers can have a tiny amount of active THC in their blood constantly, because it kind of hides in their little fat cells, and is constantly being released. You may be charged with driving under the influence, and you may have to go to trial in order to prove your innocence because you’re a chronic smoker. That’s just the state of marijuana science right now when it comes to driving under the influence.
There is no per se limit in California; however, other states do have a per se limit. I know Colorado does, I know Nevada does. In fact, Nevada has one of the scariest per se limits, and I’ll explain why. Because they have a per se limit for the active THC, but they also have a per se limit for the inactive THC.
What that means is if you are a chronic smoker, and you smoke on Wednesday night, and then on Thursday you don’t smoke, and then on Friday you drive from California, where you were legally allowed to smoke, to Las Vegas. If you are pulled over and the officer suspects that you may be under the influence of marijuana, even though you are not, he can make you do a blood test, and you can be charged and convicted with a marijuana DUI because of the inactive THC that has been in your system from the marijuana you had been smoking even up to weeks prior. It’s a scary thought.
NL: What is the deal with people who are chronic pain patients, either cancer, or any other disease, and they have a prescription for narcotic pain medications like oxycodone, Norco, Dilaudid—very powerful narcotics that in some ways impair your ability to drive . . . ?
OH: Well, California is clear, and I imagine this would be the case in the rest of the nation. Just because you have a prescription to take a certain medication . . . doesn’t mean you have an absolute defense to driving under the influence of that drug. In fact, many of these medications are very clear: “Do not operate heavy machinery or drive.”
NL: Let’s assume that all this has happened already. You’ve been pulled over, talked with the police officer, done the field sobriety test, the breath test, and the officer has decided not to let you go, he has decided it’s time to take you to the police station. What happens when you get there? What else can they do to you there, and what are your rights in the police station?
OH: If the officer determines there is probable cause to believe you are under the influence of a drug or alcohol, he can take you to the police station . . . You need to provide a chemical sample. That could be in the form of a breath test, or if you like, you can do a blood test. If they suspect you of drugs and alcohol, or just drugs, they very likely will require you to do a blood test.
NL: Is there a difference one way or the other over the accuracy, or how quickly it will show up in your blood, versus your saliva or urine?
OH: No. The idea behind the breath test is it is measuring the current blood alcohol content. One of the main real advantages of taking a blood test is that you can retest that blood at a later date if the law enforcement agency saves a sample of that blood. In California, they are required to do so at your request, and oftentimes many police stations will do so automatically. This matters, because . . . [t]hey are taking your blood, and oftentimes what they’ll do is they’ll put a preservative in your blood to make sure that the blood alcohol level doesn’t diminish. They’ll put the preservative in your blood, and then they’ll test it at a laboratory.
In fact, in Orange County, a lot of DUI convictions had to be overturned because they found that the laboratory that was testing blood for alcohol was doing so incorrectly, and with incorrect measurements by mistake. You’re really trusting this law enforcement laboratory to tell you if you’re under the influence of alcohol. So, it’s great to be able to have an independent laboratory test your blood, and test if there’s any irregularities that may show that this blood alcohol level is, for example, an anomaly.
The flip side is if you take the blood test, you’re spending the night at the station, because they can’t determine whether or not you are too impaired, or your blood alcohol level in general right away, so you have to stay the night, if that’s okay with you. I’m sure it’s not.
OH: The breath test is a really simple test. You essentially blow into it twice. The reason you have to blow into it twice—I might have explained it before—is they need to ensure that the result is not an anomaly. Actually, in California, there are special regulations as to how the breath test needs to be administered, and how the machine needs to be maintained and calibrated. The reason it’s required for them to give you two tests is:
Let’s say there’s some spit, or maybe you have a cavity that has been holding some of that alcohol you drank an hour before. The reason there can be an anomaly in a chemical breath test is because you may have some alcohol in your spit. You may in fact have some reflux disorder that causes alcohol from your stomach to come up through your throat, and then enter the machine, and essentially give too high of a reading, a falsely high reading. You have to blow twice, and you have to wait two minutes in between each blow. In California, if the results are more than 0.02 points away from each other, then that test is said to be essentially invalid.
NL: Do you have the right to refuse a chemical test, or a blood test, at least in California?
OH: This is the point where you start to have no choice. Before you didn’t have to answer the officer’s questions, you didn’t have to do the field sobriety test, and you didn’t even have to do the preliminary alcohol screening device. But once you’re at the station, the officer asks you, “Do you want to give a blood or breath test?” In California, and I’m sure many other jurisdictions, if you refuse to give that test that results in an automatic one-year suspension of your driver’s license. So, you essentially don’t have a choice. In fact, in California if you’re charged with a DUI, and they found that you did willfully . . . you can have a mandatory jail enhancement as well.
In order to refuse—it’s actually quite interesting. They have to fully advise you of your rights before you can be said to have refused. They have to tell you that you have choice between a blood or a breath test. Unless they suspect drugs, then you only have a choice of a blood test. They have to tell you that you don’t have the right to an attorney at this point, and that if you don’t submit to the test if can be used against you in court.
They have to tell you that not submitting yourself to the test can result in a mandatory fine, or imprisonment. They have to tell you that not submitting to a test can result in a one-year license suspension. This is just in California. But the idea of fully advising someone of their rights to refuse is, I think, nationwide. If you are not advised of all these things, then you can’t be said to have willfully refused . . .
NL: Let’s assume you’ve had your breathalyzer test, spoken with the police officer, maybe even had some field sobriety tests, and the police officer has determined there is a good reason to bring you down to the police station to do further testing. What is the evidence that can be used against you in court?
OH: In court if you truly believe that either you’re not too impaired to drive, or that you don’t think the state of the evidence should be able to convict you of such a crime, and you decide to take this to trial, essentially you have two hurdles in California to overcome. Like I said before, there are two charges for every DUI that includes a blood alcohol level. There is:
OH: For the purposes of the jury, “under the influence” doesn’t mean “I could feel the effects of the alcohol,” it actually has a very specific legal definition.
In California, the definition [according to California Criminal Jury Instruction 2110] is that: “A person is under the influence if, as a result of drinking an alcoholic beverage . . . and/or taking a drug . . . his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution a sober person, using ordinary care, under similar circumstances.”
Essentially, that’s the standard that the jury has to decide whether or not you’re too impaired. At court, all the evidence we talked about today is going to be used against you. Every single piece from the reason you were pulled over, to the smell of an alcoholic beverage on your breath, slurred speech, and the bloodshot eyes, to the results of the field sobriety test, the preliminary alcohol screening test, and finally, the results of your breath and/or blood test.
It’s important to note, and this has happened to me and my colleagues often. You only need to be convicted at a jury trial of one of those to be convicted of a DUI. What that means is: You can give a blood test, and it could come back with your blood alcohol level being 0.15%, but for some reason your tolerance is such that you’re able to be 0.15% and not be a danger to society, or to the community because you’re able to drive so safely, and your brain is able to operate so well.
If that’s the case, you can still be convicted of the DUI because your blood alcohol level was over 0.08%, even though the jury finds that you’re innocent of driving under the influence. It’s wild, and it does happen. Jurors do come back with that verdict, and unfortunately you still get convicted. The reason for that is because I think that the scientific evidence is important. The blood alcohol level is important because a lot of what is being used to prove that you’re driving under the influence, as opposed to driving with 0.08% or over, is subjective to the officer doing the tests.
While the officers will never admit on the stand that they are being subjective, they really are. Every officer performs these tests differently; every officer has a different idea of what these tests are showing. It can be quite abstract for a juror to wrap their head around when they’re listening to an officer spout off all the different clues that were exhibited in the horizontal gaze nystagmus test. Throughout many of my trials the moment the word horizontal gaze nystagmus test is uttered at least one person starts to fall asleep, if not more. So it’s not only difficult for them to grasp, it’s also very boring stuff, so that’s why a lot of jurors will hang their hats on the 0.08% or higher.
With that said, at every stage there is a way to discuss potential weaknesses of these objective symptoms, or the field sobriety test. But specifically, there’s also a way to show that the machines themselves are not operating correctly.
As for the preliminary alcohol screening device, and the same for the breath test at the station, there’s a number of ways that defense attorneys bring up in court to challenge these devices. One of them is that they’re simply not accurate. The idea is let’s say you are a 0.05% blood alcohol level, that is your actual blood alcohol level, and you blow into a machine that is not properly calibrated, it can give an incorrect result. It may report 0.09% blood alcohol level.
In California, and I’m sure many other places, under Title 17 there’s a requirement that they calibrate these machines either, I think, every ten days, or 150 uses, something along those lines. So they are required to calibrate them quite often or rather accuracy-check them quite often. If they’ve gone for more than ten days at a time, or 150 uses without being accuracy-checked or calibrated, that could be something attorneys use in court to discuss why the results may be unreliable.
In general, there’s a jury instruction that if the machine, its maintenance, or its operation are not compliant with the California Title 17 requirements then you can question the results of that machine.
OH: . . . [A]nother way these tests can be challenged is if there’s no 15-minute observation period from the time the officer sees you to the time you give a breath sample, then they are not being compliant with Title 17 . . . as we discussed before, you may have acid reflux, you may have just vomited, you may have had an alcoholic drink in the middle, in the interim 15 minutes. If that’s the case, then you can’t be sure that mouth alcohol isn’t providing a false reading in that breath test. That’s another requirement that California has, and I think other places follow suit.
In addition to that, each test has to be done two minutes apart. There needs to be a certain volume of air that is blown into the machine. There are many, many things that criminal defense lawyers will try to look for to see if the tests are being done properly, and that’s just the tip of the iceberg for the breath test.
OH: Another defense that a lot of attorneys will use in court, and it’s quite interesting, is the rising blood alcohol defense.
[Let’s say] you go to a bar, you haven’t had anything to drink. Let’s say you just down two shots of whiskey. Then your friend is like, “We’ve got to go to this next bar across town.” You’re thinking, “Well, I just had two drinks, but I feel absolutely fine.” Then you get in the car, and you get pulled over. The officer smells alcohol, looks at your eyes, maybe hears something in your speech, and decides to begin a DUI investigation. You give a preliminary breath test, and the results are something like, let’s say 0.08%. Then, you go to the station, and you give another breath tests, and the results are 0.10%.
. . . [T]he criminal defense attorney will likely hire an expert . . . in how your body metabolizes alcohol. What an expert can oftentimes effectively argue is that from the moment you took those drinks, to the time of driving, your body was metabolizing the alcohol, and so your blood alcohol content was rising. When you got pulled over, you may have been somewhere at 0.07% or 0.06%. But the from the time you began the DUI investigation, which could sometimes take 20 to 30 minutes, to when you gave the preliminary alcohol screening device, you were no longer driving, but your body was metabolizing that alcohol.
When you gave the breath test at the field, it became 0.08%. Then your body was still metabolizing that alcohol on the way to the station, which is shown by the fact that when you go to the station—without having any drinks in the meantime—your blood alcohol level is now 0.10%. There is a blood alcohol curve that even the People and the prosecutor’s experts will draw, that shows the way that you somehow metabolized that alcohol.
Sometimes criminal defense attorneys can secure acquittals by drawing doubt as to whether or not you ever had a 0.08% blood alcohol level while driving, or if that level was only achieved while you were outside the car being investigated. Now, of course, a lot of people don’t like this defense because the person is still drinking and driving. But the law is clear: Were you driving with a blood alcohol level of 0.08% or higher?
Despite all the challenges attorneys make, despite all the defenses they have, and how charming (not myself obviously) but other criminal defense attorneys can be in the courtroom, if the evidence is there—the jury will convict. Jurors for the most part, after being properly selected, really are able to sift through all of that and just see if there’s enough evidence. That’s what it’s all about. If someone is acquitted at a DUI trial, it’s generally because the state of the evidence is just not good enough to convict a man of a crime. That’s really what we’re dealing with. There needs to be proof beyond a reasonable doubt. I think that’s one of the great things about America is that we require this great amount of proof before we take away someone’s liberty.
. . .
NL: Omid, thank you very much for taking the time to come on the show. It was great having you. A lot of very valuable information.
OH: Absolutely. I was happy to be here. I love your show, I’m an avid listener.
–END OF INTERVIEW—
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* This is not legal advice, is not a substitute for the services of an attorney, and may or may not apply to the laws and procedures in your jurisdiction. We do not recommend that you represent yourself for a DUI / DWI or any other criminal charge.
“When in Rome, do as the Romans do.” Yes, it is an annoying and overused cliché, but an important piece of advice for how to act in court or any other new environment. Going to court is no different than any other new place. There are certain rules and formalities you must abide by—and some important things to avoid.
This article will cover the A to Z of how to act in court. It is impossible to anticipate every conceivable scenario you may encounter, but we will give you detailed guidelines for how to act in court so that you can appear professional, prepared, and confident. This is especially important if you are representing yourself without an attorney ("pro se" or "pro per").
For more information on how to act in court, check out Legal Seagull's video litigation tutorial, Courtroom Introduction: Etiquette, Procedure, and Who's Who?
“Dress for success” is another cliché (sorry!), but it is absolutely necessary whenever you set foot in a courtroom. Dress appropriately for all depositions and meetings with the parties and opposing attorneys, whether or not it takes place in a courtroom. Although this may seem obvious, I have seen more than one non-attorney show up in Bermuda shorts and flip-flops!
Judges tend to be very formal and expect parties to be dressed conservatively. What you wear is a reflection of your attitude towards the lawsuit and your respect (or lack thereof) for the court. If you dress poorly, wear tattered or stained clothes, reveal too much skin, or make poor wardrobe choices, you may be judged harshly, even if you are representing yourself "pro se" or "pro per". Although it may seem superficial, jurors are known to penalize parties who dress in an unconventional or non-professional manner.
It is always best to wear a suit and tie to court. If you do not own a suit, look for affordable ones in your area or online. Thrift stores are also a good source for used suits—or you can borrow one from a friend or family member.
If you absolutely cannot get a suit, at the very least you should wear slacks and a dress shirt (properly ironed) with a tie and sports coat. As for shoes, go with brown or black dress shoes.
Never wear: Sneakers, sandals, flip-flops or any other open-toed shoes; a cap or hat; shorts; sunglasses (unless you have a medical condition); jeans; t-shirts; torn clothing; or excessively baggy pants.
Although society has become much more progressive in its approach to gender equality, courts have not moved nearly as fast. Judges and jurors still have conservative views when it comes to proper attire for women (yes—there is a double standard!). Avoid dresses and skirts that are too short—nothing higher than the knees—and blouses that reveal too much skin.
Never wear: Sneakers; flip flops; halter tops; tank tops; sleeveless blouses; t-shirts; mini skirts; or shorts.
Always budget enough time to make it to court. Take into account traffic, parking, and courtroom security. Depending on the courthouse, it may take you a while to get through security.
Being late reflects poorly on you and could result in you being penalized and reprimanded by the judge. As the great Vince Lombardi said, “if you ain’t 15 minutes early, you’re late.”
When addressing the judge, always address him or her as “Your Honor.” It is generally appropriate to say “Judge,” but try to stick to “Your Honor.” Never address the judge as “Sir,” “Mister,” “Madam,” “Ma’am,” or “Jonathan."
Even if there are chairs at the counsel’s table, always stand when speaking to the judge unless you are invited to sit down or you have a medical condition that makes standing difficult or impossible.
Always speak directly to the judge; do not address your opponent or the opposing attorney. When responding to your opponent’s arguments, speak directly to the judge.
Even though it might seem strange, you are always addressing (and facing) the judge when you talk. This applies whether you have an attorney or are representing yourself pro se / pro per.
Treat the judge and your opponents with courtesy and respect, even if you disagree with what they are saying. Here are a few words and terms you can use to keep your language respectful:
This is a big no-no! Judges hate being interrupted (especially by pro se / pro per parties). Even if you disagree with the judge, believe he or she misunderstands an aspect of the case, or is misstating the law or the facts, do not interrupt. Wait until the judge has finished, and then politely respond, unless of course the judge indicates that you should stop talking.
The same goes for the opposing party, counsel, and witnesses. You may hate what they are saying—but do not interrupt. Wait until they are done and the judge asks you to respond. If the judge does not offer you a chance to respond, you can politely ask the judge to allow you to speak.
If you are ever admonished or criticized by the judge, never be disrespectful or raise your voice.
The judge may ask you to approach the bench to speak privately. Unless you are invited, do not approach the bench without permission. The last thing you want is to be tackled by the bailiff!
You may not like what the judge, parties, or witnesses are saying; however, you must make sure you do not exhibit any negative body language. Do not smirk, roll your eyes, groan, or make any other gestures. Doing so could subject you to discipline by the court, and the judge and jury might interpret this as arrogance or rudeness.
During court proceedings, you might disagree with the judge’s rulings. As long as you do so respectfully and politely, you may ask the judge to reach a different ruling. However, know when enough is enough!
Do not chew food, gum, tobacco, or anything else while in court. Judges do not like it and neither do jurors.
It is unlawful, improper, and just plain wrong to lie or distort the truth in court. If you do so under oath, you could be prosecuted for perjury, held in contempt, or face fines, imprisonment, or all of the above.
The court clerk has a surprising degree of power—which could help make your life a bit easier or much harder. For example, clerks can sometimes reject court filings for very minor, technical violations of court rules. Other times, they may be more willing to “bend” the rules.
Being nice will not necessarily get the clerk to help you—but your chances will probably be better than if you are rude!
Put your phone on silent mode or shut it off before entering the courtroom. That means no talking on your phone. No text messaging. No Facebook, Instagram, or Twitter. And don’t you DARE try taking a selfie with the judge!
It is normal to have some anxiety regarding your first day in court. There is nothing unusual about feeling uncertain, nervous, or even mildly panicked before entering a new environment. Just remember the tips in this article and you will be off to a great start!
Ready to take the next step in your case? Check out Courtroom Introduction: Etiquette, Procedure, and Who's Who?
]]>One of the biggest mistakes parties without an attorney (known as "pro se" or "pro per" parties) make is failing to realize that the statute of limitations has expired on their claims. You could have the best facts in the world—but if you blew the statute of limitations—your case is probably toast.
Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.
Even though judges are sometimes slightly more lenient with "pro se" or "pro per" parties, they will not (and cannot) allow you to proceed with your lawsuit if you blow the statute of limitations.
Generally speaking, statutes of limitation control the time a party has to file a lawsuit—not the time to litigate it. This means that Patrick must file his lawsuit by January 5, 2021, but the lawsuit can proceed in the court system through trial (if necessary) after that date. In other words, if the case goes to trial in September 2022, there is probably no issue with the statute of limitations, because the lawsuit was timely filed.
Each state sets its own statutes of limitation. Depending on the type of claim, different statutes of limitation may apply, and they may be calculated in various ways. Some statutes of limitation may be as short as 1 year; others may be 2, 3, 4, 5 years, or even longer.
Keep in mind there may be more than one statute of limitations for your claims. For example, you buy a house that has multiple construction defects that the seller failed to disclose during escrow. You decide to sue for (1) breach of contract, and (2) fraud. Let’s say that in your state, the statute of limitations for breach of contract is 4 years, but the one for fraud is only 3 years. In this scenario, the safer bet would be to file the lawsuit within 3 years so you do not blow the statute of limitations for the fraud claim.
To ensure you do not miss the statute of limitations, research the law in your state as soon as you begin considering a lawsuit. If you can afford to hire an attorney — or at least get free legal resources from a self-help center — you will probably be better off. Be sure to write the statute of limitations date in your calendar and set a reminder so you do not miss it. Even a one-day delay could kill your case!
Under certain circumstances, a statute of limitations may be “tolled,” which is basically a fancy legalistic way of saying “extended.” Read your state’s laws and court rules to determine under what circumstances (if any) the statute of limitations may be tolled.
States have different grounds for tolling the statute of limitations. Here are some common grounds—but each state is different:
Even if there are grounds to toll the statute of limitations, do your best to file within the statute’s time period rather than assuming it will be tolled. For example, let’s say you are 2 years into a 3-year statute of limitations, but you believe the statute should be tolled because your opponent was deployed overseas for six months. The safer choice would be to file before you hit the 3-year mark, rather than waiting 3.5 years and hoping that the judge rules in your favor that the statute of limitations has been tolled.
If you file a lawsuit after the statute of limitations expires, your opponent may file a motion to dismiss (in some states known as a demurrer). You will have the opportunity to oppose the motion and explain why you believe the statute of limitations has not expired (or has been tolled).
If your opponent wins the motion/demurrer, your case will be dismissed and the judge may order you to pay your opponent’s litigation costs. If the judge believes your lawsuit was frivolous, he or she may impose money sanctions against you, even if you are representing yourself.
For information about motions to dismiss, check out Legal Seagull's video tutorial Motions: Practice and Procedure:
As you can see, understanding the statute(s) of limitation for your case is extremely important. Failing to timely file your lawsuit could be disastrous to your case and a waste of your precious time and money.
The acronym for statute of limitations—S.O.L.—is the same as s**t out of luck. Coincidence?
For more information about filing a lawsuit, check out Preparing, Filing, and Serving a Lawsuit:
]]>You are ready to file a lawsuit.
You have identified who (or what) to sue.
If you are representing yourself without an attorney (pro se or pro per) you have researched your state’s law and determined what causes of action to include in your complaint.
You are ready to pull the trigger—prepare a complaint, file it in court, serve your opponent with it, and start your pursuit of justice.
There is just one step left . . . and it is an extremely important one! You have to determine whether it makes financial sense for you to proceed with a lawsuit. You must balance your expected recovery (what you hope to get out of the lawsuit) against your litigation costs AND your opponent’s ability to pay off a potential judgment.
You could have the best lawsuit ever—but if it is going to burn a hole in your wallet—it is probably not worth your time and money!
Depending on your state, county, city, etc., court fees and litigation costs may differ. Here are some common expenses you may need to pay:
Check to see if you qualify for a fee waiver that would allow you to proceed without paying any (or some) court fees. Every jurisdiction is different, but this usually involves filing an application or motion to waive fees, which a judge then reviews and makes a ruling. You will likely need to produce evidence showing that you cannot afford to pay court fees (e.g., affidavit, declaration, bills, bank statements, etc.).
As you can see, lawsuits can be very expensive, even if you save money on attorney’s fees by representing yourself pro se / pro per. Do not let this list overwhelm you—I prefer to be overinclusive so you know upfront what costs you might incur. Sometimes surprises suck!
At this point, you might be thinking to yourself: “I don’t care about litigation costs because in my state, the losing party has to pay the winner’s litigation costs, so I’ll just win and get those expenses back!”
If your state allows you to recover litigation costs, that is great! But remember: you still have to win to recover! That means you will likely have to go to trial, prove your case, and obtain a judgment in your favor.
If you lose, you are out of pocket for all your litigation costs AND you have to pay your opponent’s costs! Or, if you settle (as do 90-95% of cases), most settlements involve each party “eating” (absorbing) its own costs.
Even if you win and get your litigation costs back in the end, you still have to come up with the money to finance your lawsuit until the end. If you run out of money midway through your lawsuit, you may end up having to dismiss it.
Watch your wallet!
Here is a rhetorical question: How happy would you be if you won a judgment—only to find out that your opponent is broke, unemployed, in serious debt, and cannot pay you a penny? Even worse, if the defendant files for bankruptcy, your right to collect the judgment will probably be terminated.
To avoid this disaster scenario, you should find out early on whether your opponent has the financial wherewithal to pay you if you win. Do some basic online research (e.g., Google, Bing, etc.) and social media (Facebook, Instagram, etc.). Is he employed? Does he drive a nice car? Does he appear to have disposable income (vacations, restaurants, property, possessions)?
You can also try searching public records in your state/county/city to determine whether he owns property, such as homes, cars, boats, etc. The more you know about your opponent’s assets—or lack thereof—the better position you will be in to determine whether you are likely to get paid.
Researching a business’s financial situation is a bit trickier than a person, but there are still things you can do. Drive past the business. If it is a retail establishment, restaurant, or store, are there people going in and out? Does it appear to be relatively successful? Does it own any equipment, vehicles, or merchandise? Does it have a legitimate website and social media presence? Read any reviews or articles you find relating to that business.
You can also search public records to determine whether the business or individual has outstanding judgments or liens (e.g., taxes, child support, alimony, criminal penalties, etc.).
There are also online services you could use to check whether your opponent has any prior or pending bankruptcies, lawsuits, judgments, liens by creditors, court orders for garnishment of wages, child support, or alimony. These services may even be able to tell you whether your opponent has property, personal possessions, and a job.
If you discover unpaid judgments and liens, that is a red flag. It means that other parties have had a hard time collecting from your opponent. You may very well run into the same problem…
One last word on this topic: Just because a person or business is broke does not necessarily mean pursuing a judgment is pointless. The future is uncertain. A person can eventually inherit money, start a successful business, or sell off property. Depending on the state, judgments may be valid for 10-20 years, and can often be renewed. The big question is: How long are you willing to wait to recover your money… if ever?
Before filing a lawsuit, be sure it makes financial sense. If you rack up expenses beyond what you recover, you are in a worse position than you would be without the lawsuit. Likewise, if you sue a person or business that is broke or contemplating bankruptcy, you will probably have a hard time enforcing your judgment.
Like many things in life, justice ain’t cheap.
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