1. How do I know if I need a lawyer?
If you are charged with a felony, the law requires that you have a lawyer present with you in court. In my opinion, if you are charged with any crime, including traffic offenses, you need a lawyer. You have no idea how strong of a case the District Attorney has against you until you see the evidence to be presented against you at trial, which you are entitled to see under the law. It is worth the time to sit down and explain your situation to an attorney, and get a professional opinion before you throw in the towel and plead guilty. Once you plead guilty, you waive all of your rights to trial, etc. and your right to an appeal.
For auto accidents, you should get a lawyer if you have an injury, or have suffered financial or emotional damage. Usually, the insurance company will offer a nominal settlement amount to make you go away, or will repair your car, etc. But watch out, many injuries do not manifest for several weeks or even months, such as disc herniations, which can seriously impair your quality of life. Once you accept a check, it's over. It may be in your best interest to be examined by a doctor before you accept any money from an adverse party.
For all other matters, whether or not you need a lawyer is really only a question that a lawyer can answer, and it would be better to go see one and be told that you don't need one, than not to get one and find out the hard way that you did!
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2. What does it cost to hire a lawyer?
Fees for personal injury cases are charged on a contingency basis, meaning we get paid when you get paid. The fee for a personal injury case is based on a percentage of the recovery, usually 33%-45%, depending on whether the case goes to trial.
Fees for criminal matters are determined at the consultation, based on the number and severity of the charges, and the totality of the circumstances. I do not quote criminal fees without a consultation due to many factors. (i.e. Someone who gets a DWI while on probation may pay a higher fee than someone who is not facing revocation of probation.) Criminal fees can range from $500 to several thousands.
Family law and general civil cases, i.e. divorce, custody, adoption, child support, etc. are usually billed at an hourly rate. My fee for these matters is $175.00 per hour. The retainer amount depends on the facts of the case and the amount of time anticipated to be spent on the case.
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3. Should I take the Intoxylizer 5000 test (breath test) if I get pulled over for DWI?
Most lawyers say no, "never blow." I would probably take the test if I had nothing at all to drink. If you refuse, you will probably be charged with DWI anyway, and your license will automatically be suspended.* If you blow and you pass, you have a better chance of escaping the DWI charge, if you are not under the influence of any other substances. But watch out, some people's breath alcohol can go over the legal limit with one drink. If you are unsure, don't do it. The best way to avoid a DWI is NOT TO GET BEHIND THE WHEEL IF YOU DRINK!
* This may not always apply.
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4. If I took the Intoxylizer test and blew over the limit (0.08 in Louisiana), should I even bother getting a lawyer?
Absolutely. There are many challenges that can be made to the Intoxylizer test. The officers who administer the tests have to follow strict rules or the test can be thrown out. The tester must be certified, the machine must be inspected and calibrated frequently, and the state must prove all of this at trial in order to use the test. Also, the penalties are enhanced if you blow over .15, and if you blow over .20 you could get jail time, even on a first offense.
If you are arrested for DWI, you have 15 days to file for an administrative hearing to avoid your license being automatically suspended. There are safeguards your attorney can put in place to help avoid your license suspension altogether.* Also, your attorney may be able to preserve the right to an expungement at a later date, if you qualify. If you are arrested for a second, third, fourth or subsequent fourth offense, (for any crime, not just DWI) you should absolutely and without a doubt, hire a lawyer. If you are arrested while on probation, that is another situation where it would be extremely unwise not to hire a private attorney. When multiple offenses or enhanceable-type offenses are committed, there are additional considerations that must be considered aside from the penalty outlined in the statute making the conduct illegal. There are additional statutes that apply to second offenders, third offenders, etc. There are parole guidelines that are different for different people with different records. If you are facing jail time, it is important that your lawyer know about parole, probation, and sentencing guidelines. For example, if a defendant pleads guilty to a crime while he is on probation, his probation may be revoked. Many times the judge for the new charges will allow the new jail time to run concurrent (at the same time) as the revocation time. However, if the sentencing judge does not specifically state on the record that the new time is to be run concurrent with the old time, then the two sentences will automatically run consecutively (one after the other), under the law. This is one of those things that your lawyer should know, because the court is not going to ask, and the D.A. is not going to suggest it. Once the plea is entered, it's too late to go back and ask for concurrent time.
*This cannot be guaranteed.
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5. Should I plead guilty at my arraignment?
No, you should not plead guilty at an arraignment without discussing your case with a lawyer. If you plead guilty, your case is over and you do not have the chance to challenge anything. You can always withdraw your plea of not-guilty and plead guilty at a later date.
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6. Why should I hire a lawyer instead of using the public defender?
While the public defenders are usually good lawyers with a lot of experience, the simple fact is that they are overworked. They may have 50 cases on the docket on the day of your trial, and they probably did not have time to interview witnesses, send out subpoenas, file motions, write memos, thoroughly review all evidence, meet with the assistant district attorney, and defend your case as vigorously as a private lawyer would. Do you want to be number 49 in line on the day of your trial, waiting to talk to your lawyer after the other 48 people? Didn't think so.
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7. If I want to get a divorce, how long do I have to wait?
As of January 2007, the waiting period for a divorce is 180 days if there are no minor children of the marriage under 18. If there are children under 18, it is 365 days. There are exceptions to this rule, however.
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8. If my ex doesn't visit the kids, does he/she still have to pay child support?
If there is a judgment of a court of competent jurisdiction in effect that has not been judicially modified, ordering him or her to pay child support, then amounts are accruing and are still due whether the person visits or not. If there is no judgment in effect, no support is due, and you cannot go back and get past child support unless you have a judgment to enforce entitling you to arrears.
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9. What are the three most important things in any personal injury case?
Liability- You may have substantial injuries, but if the party you are suing is not the one who actually harmed you, you will not prevail. Example: You get hit by a car that has a "Tracey Powell's Pizzeria" logo on the side. You sue the pizzeria, but later it is discovered that Tracey quit the pizzeria to join the circus and just never returned the logo. The pizzeria is not liable.
Insurance- If the liability is clear and the damages are substantial, you must be suing an insured defendant, or a defendant with valuable assets that exceed the amount of damage you sustained. With auto accidents, it is very common for someone who is underinsured (or not insured at all) to crash into another person and seriously injure them, and the tort-feasor have little or no insurance. This is a problem. That is why you should always carry uninsured motorist coverage on your policy. Ask your insurance rep.
Damages- You must have been injured (not necessarily physically) to prevail. You may have a well insured defendant, and clear liability, but if you cannot prove damages, you will not prevail. Damages consist of lost wages, emotional and physical pain and suffering, and medical expenses, to name a few. Example: The rubber man is walking down the street on the way to work. A negligent driver for Tracey Powell's Pizzeria accidentally runs him over while rushing to deliver a pizza. However, rubber man never saw it coming, and got right up off the ground afterward, so he had little or no emotional damage. He had no physical damage because he's made of rubber, hence no pain and suffering, and no monetary loss because he still made it to work. In this scenario, liability and insurance are present, and the driver was negligent, but no damages can be shown, so the plaintiff does not prevail.
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10. How long does it take to settle a personal injury case or get it to trial?
Clients often want to know when they can expect to set their settlement/judgment. It is impossible to tell at the outset of a case how long it will take to settle, however, generally, the higher the damages, the harder the insurance company will fight before paying out a settlement. For smaller cases, it is cheaper for the insurance company to pay a small settlement just to be rid of the case than to have their attorney work the file for $200 per hour. For cases involving higher damages, there is usually a long discovery process involving depositions of all parties and witness, all doctors that have treated the client both before and after the accident, and all expert witnesses. Ideally, personal injury cases should not settle or be tried until the client has reached maximum medical improvement because you don't want to accept a settlement check and then find out that you need surgery that costs $50,000.00. Some cases settle right away, others can take years. It depends on the facts of the case and the treatment of the client.
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