Civil & Criminal Law
Civil Cases
Civil litigation is a term that covers a broad spectrum of litigation. It can describe just about any court proceeding, except criminal cases. Civil litigation encompasses divorce or family law, personal injury cases, business litigation, construction litigation, contract litigation, defamation of character, eminent domain and any other forms of litigation.
Civil cases are litigated in what the law refers to as civil action. This is what is commonly referred to as a lawsuit.
Civil litigation is commenced with the filing in court of the document referred to as the complaint. The compliant contains the essential allegations of the complaining party. The complaining party is called the plaintiff. The party that is sued is referred to as the Defendant. The Defendant is personally served with the complaint and he/she has 30 days to file a written response to the complaint, referred to as the answer, with the court and send a copy to the Plaintiff's attorney.
Discovery
After the defendant's answer is filed, the discovery period begins. Discovery is the investigation phase of the litigation process. It includes written discovery, such as interrogatories or questions addressed to the other party that must be responded to under oath, Request for Production of Documents, which require each party to produce certain documents, which may be relevant to the case. Discovery also includes depositions, which is a face-to-face question and answer session between attorneys and witnesses that is recorded and becomes a part of the record in the case. There are other discovery procedures that exist. At the initiation of case, it is expected that the discovery will be completed within 6 months of the filing of the Defendant's answer, but it is not uncommon that time period is extended depending upon the complexity of the case.
Expert Witnesses
A lot of civil litigation involves the use of what the law refers to as expert witnesses. Expert witnesses range from physicians, accountants, engineers, construction experts, to planners and real estate appraisers.
Eminent Domain
Eminent domain is the area of law that involves the taking of private property by government for public use. This includes the taking of private property for road projects or the construction of schools.
The Fifth Amendment to the U.S. Constitution provides that "Nor shall private property be taken for public use, without just compensation". Just compensation is usually described as the fair market value of the property taken, but in eminent domain cases there are other categories of compensation including consequential damages (defined as the damage to the value of the remaining property due to the taking of a piece of that property).
This firm has successfully represented property owners in several eminent domain cases. The most celebrated case involved twenty (20) acres on Whitmarsh Island in Chatham County, Georgia, that The Chatham County Board of Education sought to acquire for $600,000.00. After a two and one-half day trial, the jury awarded our client over $1.9 million dollars for the property.
The issue in eminent domain cases is usually the fair market value of the property taken plus any consequential damages to the property remaining in the ownership of the property owner. An expert real estate appraiser who is trained or experienced in eminent domain matters usually testifies to the fair market value.
Criminal Law
Miranda Warnings
Law enforcement officials are required to read a suspect Miranda warning at the time of his arrest. The Miranda warning is about the right to remain silent and the right to an attorney. However, the Miranda warning only protects someone in regard to statements made while under arrest. The police are not required to read a suspect his rights until he is under arrest or in a situation wherein a reasonable person would assume that they were under arrest. Miranda warnings are usually not required when police question an individual during a traffic stop nor is it required when police are conducting a Terry stop. The failure of the police to read or give a Miranda warning only effects the ability of the government to use any statement that an individual may make (such as a confession) as evidence in the case against that individual. It does not prevent the government from prosecuting an individual based upon evidence that they gather independent from any statement that individual may make. Miranda is basically a warning that an individual does not have to incriminate his or herself and that any statement that person may make can and will be used against him and that he has a right to an attorney and that if he cannot afford an attorney one will be provided for him. However, a person can waive these rights and talk with the police without an attorney. Usually, this is not a good idea.
The right against self-incrimination has been eroded over the years. For instance, an individual does not have the right to refuse to give blood, urine samples or DNA samples. Also any statement made voluntarily while in police custody, even after arrest, if not in response to police questioning may be used against the speaker in court. Also any statement made to someone not in law enforcement can be used against the speaker regardless of when or where the statements are made.
Plea Bargaining
In today's judicial system there is a considerable number of criminal cases resolved in Plea Bargaining. However, a criminal defendant does not have an absolute right to have a District Attorney offer a plea bargain. Plea bargain terms are based upon what other similar cases are being plea bargained for, the defendant's criminal history, the attitude of the alleged victim, what degree of notoriety that the defendant or charges have received, the availability of witnesses, or lack thereof, the credibility of the witnesses, the minimum and maximum penalties that apply to the charges and other factors.
If the government and the defendant reach a plea agreement, they present the agreement to the judge who is presiding over the case. The judge examines the agreement and makes sure that the defendant understands what he is doing, what he is charged with, the minimum and maximum sentences that apply to the charges and the ramifications of the sentence in the plea agreement. He then makes sure that the defendant is in fact guilty of the offense that he or she is pleading guilty to. The judge then decides if the plea agreement is fair and if so, he then sentences the defendant in accordance with the agreement. If the judge does not think that the plea agreement is fair to the state, he can reject the agreement and send the case on to trial. In that case, the defendant's plea of guilty cannot be used against him in trial of the case. In the vast majority of cases, the court approves the plea agreement.
Misdemeanor/Felony
A misdemeanor charge is usually initiated by an accusation issued either by the arresting police officer in the form of the citation or traffic ticket or a formal accusation issued by the district attorney or the solicitor. The law allows the prosecuting attorney to issue accusations that accuse the defendant of the crime in question. The defendant can plead guilty or not guilty. If he pleads not guilty, he can request either a trial before the court (that means that the judge hears the case without a jury and determines the guilt or innocence of the defendant) or a jury trial where a panel of 6 or 12 citizens decides the case. Generally, the maximum penalty for a misdemeanor is a 12 months sentence and/or a $1000.00 fine.
Anyone accused of a felony offense is entitled to have the Grand Jury decide if the defendant should be charged. The grand jury is made up of a number of citizens of the county where the offense is supposed to have occurred. The grand jury hears the evidence that the prosecuting attorney presents and then decides if a true bill or a no bill is returned. A "true bill" means that the individual will be charged with the felony and must stand trial and a "no bill" means that the grand jury does not feel that there is enough evidence to prosecute the individual. In those circumstances, the state is free to come back to the Grand Jury to seek a true bill if they obtain new or different evidence.
Bail Bonds
Any individual charged with a criminal offense is entitled to have a judge consider his or her request to be released from custody pending trial. A Judge will usually grant the request for a bond unless there is a legal reason for that person not to be released. The reasons that can prevent a person from being released on bond are a danger that the individual will commit a felony while released on bond, the possibility that the defendant poses a threat to the safety of witnesses or the alleged victim, the fact that the defendant poses a significant threat to the persons or property in the community and the possibility that the individual will leave the jurisdiction of the court and/or not appear for the court proceedings. Also if the defendant has been convicted of a serious violent crime beforehand and is now charged with a serious violent crime, the law presumes that he or she cannot be safely released from custody. In order to ensure that the defendant will appear for the court date, the judge usually requires the defendant to post a bond or surety to secure the defendant's appearance at court. The amount of the bond varies according to the seriousness of the offense charged, the defendant's financial status, the criminal background of the defendant, and the defendant's connections to the community. If the defendant is on probation for other convictions, it is difficult to get a bond, but it can be done in the right circumstances.
Once the court sets the amount and conditions of the bond, the defendant can either deposit the amount of the bond plus a few surcharges and fees with sheriff or pay a bail bondman to post a surety bond to ensure that the defendant appears in court. The amount paid to the bondsman is not refundable, but if the defendant posts a cash bond it will be returned to the individual who paid it when the case is over.
Jury Trials
A criminal defendant has the right to a trial by jury in misdemeanors and felonies. In a jury trial, the court summons a number of registered voters to the courthouse to be the jury "panel". The panel is sworn in and asked a series of question designed to help the judge and the attorneys decide whom they feel will be the best persons to hear and decide the case. This questioning process is referred to as "Voire Dire" which is French for "to tell the truth." From the panel, the judge and the attorneys select or "strike" the jury to hear the case. The jury can be as small as six persons in a misdemeanor case or as large as twelve in a felony trial. The court may also order the parties to strike or select a few alternates in the event that the original jury members are not able to finish the case. The term "strike" is derived from the fact that in selecting a jury the attorneys are really dismissing or "striking" the jurors that they do not want to serve on the jury. In a criminal case, the state and the defendant each can eliminate or strike nine of the potential jurors presented to them. The individuals remaining after the striking process become the petit jury that hears and decides the case.
After hearing the evidence and the argument of attorneys, the jury is instructed by the judge on what the applicable law is and how they are to apply the law to the facts of the case. The jury is the sole determiner of the facts. They decide what the facts are based upon the evidence that they hear. They then apply the law to the facts as they find them to be and arrive at the verdict. The verdict must be unanimous. If the jury cannot agree on a verdict, then they are considered a hung jury and they are dismissed and the case is set for trial again before a new jury.
Reasonable Doubt
In order for a defendant to be convicted of a criminal offense, the law requires that the state prove the guilt of the defendant beyond a reasonable doubt. The state is not required to prove the defendant's guilt beyond all doubt, just beyond a "reasonable doubt". What is a "reasonable doubt"? The Georgia courts often give a jury the following instructions regarding reasonable doubt:
A reasonable doubt is a doubt of a fair-minded, impartial juror honestly seeking the truth. A reasonable doubt is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, or a conflict in the evidence. After giving consideration to all of the facts and circumstances of this case, if your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law, and you should acquit the defendant. But, if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant.