The Florida Bar Young Lawyer Division (YLD) recently released a statement about the results of a survey in which 3,137 young female Florida attorneys shocking YLD President Gordon Glover, and Florida Bar President Ramón Abadin. The YLD includes attorneys who are 36 or younger or practicing for five years or less. The comments alone shocked many and sparked a movement to start Continuing Legal Education seminars, “Balancing in Heels: Self, Family, and the Practice of Law Interview Series;” “Balancing in Heels: Webinar Series;” and “Engage: The Women’s Power Summit.”
No woman is shocked:
Gentleman, I have news for you. These results come as no surprise to any of your female counterparts. And these seminars and webinars are kind of offensive. Women don't need education. We don't need to be empowered...we went to law school, and are killing it in our practice. I would say that the men need to be educated, but they don't. Everyone knows better. Everyone knows that women tend to have more responsibility at home than men. Some people (men and women) are just a**holes. Others are just oblivious to the fact that a young woman may be more intelligent, better educated, or better at their job than a man. OR they just simply forget that women actually pass the Bar too.
The first woman to join the Florida Bar, Winifred Wentworth was turned down from every law firm in 1951. In 1967, the second woman to join the Bar heard the same message: "no girls allowed." Even Janet Reno, Harvard educated, was turned away from the Miami law firm that ultimately made her partner.
We recently connected with a great lawyer, Jack who passed the Bar 60 years ago. A true gentleman, he has never made us (two young female lawyers) feel like we were anything less than an equal. The fact remains, however that he had no women colleagues for the majority of his career. Female attorneys are new to him.
Younger attorneys studied in law school classrooms where the majority of the students are women, so they are less biased. However, as our careers progress, women tend to disappear from the practice, which leads all attorneys to make a harmful conclusion: all female attorneys are a professional liability.
Why the Bias?
I don't believe that most discrimination is rooted in the believe that men are better than women. It seems to be based in the sense that women are a bad investment because they are going to quit sooner either due to children or to pursue other goals.
Honestly, I think there is some truth to this. A lot of women leave the profession or work in a less demanding position when kids come along. Based on conversations that I have had with moms, this is not because they do not want to put in the work. This is because it does not make economic sense to pay for childcare when you're only making enough to cover the cost of said childcare. While it is OK not acknowledge the trend, the problem is assuming that all women are going to have kids or work less when kids are around.
Women are Less Competent:
The bigger issue is not in the assumption that women will not take the job seriously, but the assumption that women are not as capable as men. I don't look at other attorneys and assume (based on appearance) that they are less capable or less intelligent than I am. So, the men and women who engage in the practice of discrediting young women are pathetic, weak, and not doing their job as well as I am as they underestimate me while I am preparing for their best effort.
Women, especially attractive women are presumed to be less qualified or not really a lawyer. People tend to think that it's too hard to be pretty and smart. However, very attractive women are dominating the legal profession every day. Case on point: the supermodel/lawyer married to a certain George.
|Laura Smith|Laura Smith is an associate at Heaviside Reed Zaic. Even if you don't recognize the name, you know the firm's work. They represent consumers in medical products cases and against big pharma. Like I said, she's killing it. She writes: "As the acclaimed #Girlboss, Sophia Amoruso, said 'I believe that there is a silver lining in everything, and once you begin to see it, you'll need sunglasses to combat the glare.' Let them [hairy, old white dudes] wear sunglasses! Heck, I'll buy them all a pair."
Ashley Hayes is an associate at de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP. Ashley was recently asked is she was the court reporter in a deposition.
No, I'm not the Court Reporter:
There is nothing wrong with being a paralegal, a stenographer, a secretary, an interpreter and assistant. There are some great people in these positions. The problem is that when people walk into a courtroom, a mediation, or a deposition, the majority of older men assume that the women in the room are the support staff. When you bust your behind prepping for a deposition, nothing gets you more fired up than being mistaken for the support staff.
Opposing counsel tends to make the mistake less and less. As far as opposing counsel goes, a part of my personal success is that I relish in my underestimation. If another attorney thinks that I am a dumb blonde, they are not paying attention when I am destroying their case and they are shocked when I win. I would guess that they don't make the same mistake twice.
The bigger concern are the clients. Every woman who practices long enough will experience gender discrimination from a client. Here are some personal examples:
- Many clients call me sweetheart;
- Potential clients assume that I am the assistant or secretary to the attorney; and
- Client who I was appointed to looked at me and said "oh, hell no!" and walked out of the conversation.
Changing Consumer Perception:
The gender bias isn't personally hurtful, or offensive, it's just annoying. It does, however hurt the profession because consumers do not have faith in female attorneys for the "tough" areas of law.
Not long after the opening of our firm, I noticed that the majority of our clients were women. Other than family and friends, we only got calls from women. I was flattered that women trusted us, but I wondered where all the men were going. For an entire year, women dominated our client base. So we did something drastic, we brought in a man to parade on the front page of our website. Lo and behold, we have more male clients.
Convincing consumers that I am equally, if not more qualified to be their attorney is a very tough job. Theirs is the only opinion that matters. This is a business and I want to be hired. I have considered not wearing makeup to make myself less attractive, removing photos from our website, but we settled on just hiring a man. He's front and center in firm photos for a reason.
Where do we go from here:
I don't know. I can tell you where we should not go... stop creating offensive seminars that emphasize the problem. This summer, I went to a conference. The host decided to facilitate yet another CLE for (or for the benefit of) women called...wait for it.... "The Crap People Say About Women but Won't Admit." The panel (all women) just started stereotyping women, and enraging everyone in the room. One man actually said, "this is making me very uncomfortable." To make matters worse, they tried to add humor to the program. It was awkward.
Again, women don't need to know what everyone thinks or actually says out loud. We are fully aware. Furthermore, we are not going to change people who simply think women are less able to be attorneys. We need people in positions of authority in the legal profession who foster a culture of equality and zero-tolerance for gender discrimination. And if you are discriminated against, you should walk out. No job is worth your dignity.
Every Monday, catch us on The Chat talking about legal issues affecting you! If you don't like what you hear, write to your elected officials. You can find YOUR elected officials here and all Duval County officials here.
As a constituent, your voice matters. Speak up!
Attorney General Pam Bondi made rape kit testing a priority this session. This week, the Florida Senate unanimously pushed through a bill
that requires testing within 120 days of submission. The House is pushing through a bill to address funding.
These bills became a priority after an exposé
that revealed thousands of untested kids. An audit
in January revealed more than 13,000 untested rape kits. The bills author cites justice for the victims as the motive for the bill. It should be noted, that this bill could also exonerate
the accused or convicted.
Eight years ago, the very private, and modest sports reporter, Erin Andrews was violated in a way that many of us will never understand. Not only was she secretly recorded by a serial stalker
, but her celebrity worked against her...more than 16 million people
(and counting) viewed the illegally recorded video once the word got out that it existed. Also, it can never be deleted everywhere according to experts.
One incident of video voyeurism
is enough to send someone to prison for five years in Florida with enhanced penalties for subsequent offenses. Whether you are famous or relatively unknown, the act can violate you to your core. What's worse is when that video is forever memorialized online for the world to see. The hope for any victim is that the least amount of people possible see it.
So what do you do? The local prosecutor will likely take this offense very seriously, and justice will likely be served. But no justice or amount of money will ever make you whole after such a atrocious invasion of privacy. It may, however, prevent the responsible parties and third parties from allowing the violation to happen again.
Erin Andrews' trial for the civil lawsuit
that she filed against the hotel she was at when the offense occurred started last week. The hotel, she claims, is to blame
because they released her room number to the inquiring criminal who sought her out and followed her there. A hospitality expert
(yep, those exist) testified earlier in the week that giving out that information is a cardinal sin in the hotel industry.
Last week we heard from her father
who explains that Erin Andrews is a shell of the person that she used to be. Today, Erin Andrews will take the stand
to explain how this act has forever altered her life and negatively affected her. Rather than quietly struggle, she is standing up
for victims everywhere. Her struggled has inspired Tennessee legislators to pass a bill requiring that voyeurs register
as sex offenders. It only took them 8 years, $75 million and infinite media attention to make the change. The point is, that they are making a change.
Our thoughts and prayers are with Erin Andrews as she pushes through the end of this very public trial.
If you have been the victim of a crime that was made possible by a third party never held accountable, call us at 904-516-5560 or visit www.plataschott.com.
Family Law is notoriously contentious. The emotion of a divorce or child custody battle is unlike any other area of law. The parties intimately know each other and they are most able to annoy/destroy the other party. The attorneys on either side are generally above the fray, but sometimes even the attorneys can get emotionally involved. Problems abound.
The Big Fight:
When children are involved, time-sharing (a/k/a "custody") is generally the main issue. Everyone
wants "full custody," "sole custody," which is now called majority time-sharing in Florida even if they don't really want majority time-sharing. That's what everyone is fighting over. The time-sharing split affects other parts of child-rearing including whether a parent must pay child support, and whether a parent gets the child-rearing credit for their taxes
Demanding Majority Time-Sharing:
Guess what? When you go to court and demand majority time-sharing, you're actually hurting your case. Florida law
encourages equal time-sharing, which is still rare. The law also encourages that the parent support a relationship with the other parent. This can be very difficult for some parents.
The Pros and Cons of Discretion:
Judges have discretion, which is affected by their personal beliefs on parenting. This leaves at least one parent unhappy, and every good lawyer knows that you do not want the judge to make the final decision. No one wins.
One legislator who knows first-hand the pain of a divorce with children is making a move to take away some judicial discretion.
is moving through the Florida Legislature to default time-sharing to equal with the judge's ability to modify based on 22 factors including child's preference, travel time and parent's request. Unfortunately, this is coupled with an alimony overhaul
that could lead to it dying. A 50/50 default is...interesting. We live in a world where everyone still tends to believe mom is best equipped to raise a child whether they admit it or not. This is obviously the most equitable start to any divorce.
Of course, there are critics. The "best interest of the child"
is still the standard. Passing a child back and forth may not be the best. Also, for very young children, breastfeeding experts
are pointing out the logisticsimpossibilities of this.
Some "experts" are saying joint custody is always best, and others are saying joint custody is never best. The bottom line is that when it comes to an individual child, there cannot be a one-size-fits-all approach. The system is very flawed, and a judge, lawyer, a hired gun, and sometimes even their parent doesn't know best. The effort to make the system better is appreciated, but we aren't sold that this is the best start.
If you have questions about your child-custody battle, call us. We aren't going to sell you a dream. We are going to be real with you about the Family Courts. For more information, call 904-516-5560, or visit www.plataschott.com.
April 15 is right around the corner and many of our clients are wondering: who gets to claim the child on their taxes? Parents may claim children under the age of 19, or under the age of 24 if the child is attending school full-time. See the information below to make sure that you are not missing out of your child-rearing credits.
Is there a court order?
If you do not have a court order regarding time-sharing, then mom is most likely going to be entitled to make the claim. Why? Because if you were married and there is no order, then you are still married and you file jointly. If you were never married, a child's biological mother is generally undisputed whereas the paternity of a child may have to be established.
The custodial parent typically gets to claim:
If you have a court order, the parent who has the child the most of the time generally gets to claim unless the order says otherwise. However, the parent who does not have the child as much, may have a claim if that parent pays most of the child support.
However, if you have a court order that allows the non-custodial parent to make the claim, this is the process:
The custodial parent must sign a Form 8332 stating that they will not claim the child for the year. The non-custodial parent attaches that Form to their own taxes.
You can download that form here and send it to the other parent. We suggest sending a stamped return envelope so you get it back as soon as possible. Keep in mind that the custodial parent may revoke the Form at any time. If this is in contempt of a court order, call your attorney!
If you are in the process of negotiating a court order for a parenting plan, and you have negotiated that you are going to get to make a claim as the non-custodial parent, make sure your attorney specifically states in the final order that the other parent must sign the Form 8332 and have it to you no later than January 31st of the year that you are filing your taxes with the child-rearing credit.
What happens if both parents claim a child on their taxes?
The first person who makes the claim may get the credit, or the IRS may kick both tax returns back and review the claims through the audit process. If they review it, they will consider, (1) who has majority time-sharing, (2) who makes the most money, and (3) whether both parents are required to file taxes.
Audits are serious and you can be penalized for underpayment if you make a claim when you are not supposed to. Make sure you're within your rights before you make the claim.
If you are the custodial parent and you are court-ordered to sign the Form 8332, but you refuse, you could be held in contempt of court.
If you are the non-custodial parent and there is no court order about time-sharing, you need to get one done before the end of 2016. Otherwise that is 19-24 years of missed child-rearing credits. Call a Family Law attorney today to learn your rights.
If you have more questions about Family Law, call Plata Schott Law today at 904-516-5560.
*Results are not typical. No lawyer can guarantee any particular outcome. Results vary from case to case.*
Mr. R has lived in the United States for 14 years. He has never been in trouble and maintains steady employment. He had nothing
on his record. Prior to his arrest, Mr. R was working toward taking the Citizenship Test this year.
In the Fall of 2015, he was pulled over late at night for a suspected DUI. The only reason that Mr. R was stopped was that Mr. R slowly changed lanes on the Hart Expressway "for no apparent reason" over the course of 12-15 seconds. When Mr. R was stopped, the officers asked Mr. R to do field sobriety exercises, and he refused. They asked him to take a breath test, and he refused. Still, he was arrested for a DUI based on very little evidence that he was impaired.
It should be noted that it is not a crime to drink alcohol and drive in Florida. It is a crime to have a blood alcohol content of more than .08 or for your normal faculties to be impaired. Mr. R told the officers that he had one beer at a friends house not long before the stop. The officer reported that he smelled alcohol and that was the basis for the arrest. There was simply not enough evidence in this case.
With no evidence of impairment, Mr. R was immediately placed into deportation proceedings because he is not a citizen. A DUI is a crime of moral turpitude that disqualifies someone from becoming a citizen. However, Mr. R was not convicted of a crime yet.
We provided the State Attorney with mitigation or good information about Mr. R, but the State Attorney was unwilling to make a deal that would keep Mr. R from being deported "because he refused the take a breath test."
We looked closely at the stop and ultimately decided that the officer probably did not have enough to initiate the stop. We argued the motion and the judge agreed, he should not have been stopped.
Mr. R is a free man today who is still entitled to become a citizen. His story is an important lesson to people arrested for a DUI. It doesn't take much to be arrested, but it takes a lot for the State to get the conviction for a DUI. Don't roll over. Fight your DUI!
Injured in a car crash? You're going to be facing a lot of tough options in the next few hours, days, week and possibly months. Here are our tips for getting through this process.
Take photos of everything - the roadway, the cars, the lighting in the area, and the weather. Photos are the BEST evidence that we can have. Put the vehicle in a safe place if you own it.
Then get to a doctor. You need to make sure that you are OK. You also need to make sure that if you have an injury that doesn't immediately hurt, you can get treatment under your Personal Injury Protection. You have only 14 days to go to a hospital or doctor to preserve your benefits.
It was my fault.
You have probably been cited, and individuals are contacting your insurance company. If you are not insured, you may be sued as an individual if you have significant assets, or maybe not. You should hire an attorney to handle your traffic citations to mitigate your liability. If you disagree that you were at fault, contact a Personal Injury attorney who can review the facts.
It was not my fault.
If the driver of the vehicle that hit you or the driver of the vehicle that your were in was at fault, you have the right to be compensated for damages that you sustained as a result of the crash. Again, call a Personal Injury attorney as soon as possible.
The insurance company offered me $1,000 to settle today. Should I settle?
NO! You should never settle and waive your rights without talking to a lawyer. Most lawyers offer a FREE consultation and can advise your properly within 15 minutes. Take the time to ask before you sign anything.
We have heard some crazy stories about insurance companies meeting accident victims in Wal-Mart parking lots to give them $1,000 in return for the victim signing a Release. A Release is a contract/waiver of the individual's right to pursue additional damages no matter what happens in the future. While I have not read these back-alley Releases, I would presume that they also say that the Defendant Driver is not liable.
This is a problem for many reasons. First, your case is probably worth much more than $1,000. If the insurance company is hunting your down to make a quick deal, that means that they know you have a claim. The minimum Bodily Injury liability insurance is $10,000 per person per occurrence. Let's say you have an attorney who charges the standard 33.33% contingency fee. Your take away compensation from a $10,000 settlement is $6,666.66, which may be applied to outstanding medical bills if applicable, or it's a nontaxable compensation to you. While no attorney cannot guarantee any particular outcome, we can tell you that there is a reason insurance companies are making these deals within hours of the crash. Insurance companies are business, and $1,000 is only 10% (or more) of the possible settlement, meaning a 90% profit for insurance. The numbers don't make sense for you.
The other major problem is that your pain and suffering may not manifest for several days, weeks, even months. Trauma does strange things to the body. Some people feel pain immediately, but bodies that suffer trauma start degenerating rapidly. That degeneration may cause pain (or more pain) later. If your young, this pain could last for decades. How far will $1,000 get you at the doctors office? If you're older, you may lose your ability to take care of yourself. How far will $1,000 get you with assistance? Insurance companies have billions of dollars that are available to people just like you. Unfortunately, you're not going to see the best pay day unless you get an attorney involved.
I don't want to sue anyone, especially my friend.
Don't worry. You aren't suing anyone...yet. Your attorney will drive the car, but you map out the course. Your attorney will always obtain your permission prior to a law suit. However, pre-litigation (negotiating a deal without a law suit) can accomplish a lot for you. The attorney will help you obtain treatment from experts who can paint a picture of your injury, and the long term effects of the injuries to establish your damages. The attorney then conveys that information to the insurance companies and makes your case for settling your case for as much compensation as is available to you. Again, there is no way to guarantee an outcome, but without an attorney who knows how to sell your case and work hard toward settlement, you may lose thousands of dollars of compensation.
How much will this cost me?
If you settle too soon, it could cost you a lot. If you go to an attorney, Florida attorneys typically charge 33.33% of the recovered amount as their fee. Meaning, they have an interest in getting you the most money possible.
You are responsible for the fees and costs, and this is where it can get expensive so it's most important to hire an attorney who will make every effort to keep your costs low. For example, is your attorney's office paperless? Do they use the most expensive court reporters and experts? Are they consulting you before they pay for things? Are they challenging big bills or paying without question?
The attorney will generally front the costs, but you repay the attorney at the end. A full trial typically costs any where from $50,000 to $100,000. However, if your attorney negotiates a settlement and based on their experience they advise you to take it because the cost of litigation will likely exceed recover, the attorney may require you to pay the costs or terminate representation. For example, if you're offered $100,000 and the attorney doesn't think your case is worth much more, but you want a trial, the attorney may say it doesn't make sense.
A typical closing statement will look something like this:
Settlement: $10,000 (this is what the insurance company agreed to pay and you agreed to accept. This money is paid into the attorney's trust account to be divided up appropriately. Don't worry- the Florida Bar heavily regulates the handling of this money and they attorney has a lot to lose by misappropriating this money.)
Less Attorney's Fees: $3,333.33 (this is 33.33% of the total settlement. It always is the first amount taken out. Costs come our of the subtotal)
Subtotal: $6666.67 (this is your money, but what you owe your attorney and doctors will come out before your can get a check.)
Less Authorized Medical Payments: $1000 (this is money that you owe your doctors for treatment. The doctor probably put a lien on your recovery when they found out that you had an attorney so the attorney has to pay them before you can be paid.)
Less advanced costs: $250 (printing, copying, payments for records, and mailing.)
Total to client: $5,416.67 (this is yours to keep and use as you wish. Your debts related to the case should be paid. you will not be taxed on this money. Keep in mind however that it should be used for future medical care.)
How can I get treated for my injuries?
Many doctors will treat you without payment if there is compensation available to you and your injuries make it clear that you're entitled to compensation. You also may have Personal Injury Protection (PIP) benefits. You will still owe 20% of the bill or the deductible if you don't have Medical Payment. Take a look at your policy today and make sure that you are fully covered!
You may want to ask your attorney who they recommend that you treat with. Not all doctors know how to properly work-up the medical records that will ultimately be used for the personal injury claim. You don't want your doctor's mistake to cost you money later on.
Did we say hire a lawyer?
We cannot stress this enough. You don't have to make a claim, and you do not have to sue anyone. You just need to make sure that you have a conversation and you understand your rights. If you don't take the time to talk to a lawyer, you could be losing thousands, hundreds of thousands and some times millions. There is no shame in being fairly compensated.
If you have been injured in a car accident, call Plata Schott Law today at 904-516-5560 or email us at email@example.com. No car? In the hospital? No problem. We will work with you to make a consultation convenient for you.
Your driving record is not the same as a criminal record. The Florida Department of Highway Safety and Motor Vehicles maintains your driving record. The Florida law that provides an opportunity to expunge your records is only for a criminal record. Therefore, you cannot seal or expunge your driving record.
Unless you've been living under a rock or (or you don't have an iPhone), you might have heard that the FBI really
Apple, the manufacture of the iPhone that the San Bernardino
terrorists used for their horrific attack in 2015. Apparently, they cannot hack the phone (although, in a VERY interesting twist of fate, America's most wanted "traitor" says he may be able to help
). I am wondering if they Googled
the issue, or asked their friendly Genius Bar man. I swear they once told me how to bypass the code.
Why won't they just do it? For the victims
and the families of the victims?!
I cringe to say this, but it's a slippery slope. The masses are currently outraged that Apple won't do it in this case... but hold on. There is no urgency here. The damage is done. The suspects are dead. They acted alone. Who benefits from Apple creating new technology specifically for the government to use "just this once?" Answer: the Government. They would have the tool to hack all iPhones, and that is the problem.
The Court of Public Opinion tends to fuel what we as a society through our government should and should not do. If we have another domestic terror attack, the public outcry may lead to many individuals losing their civil rights. Or will it?
The case for the technology:
Apple made a solid product. The Founding Fathers also made a solid product. The Constitution protects us from unlawful search and seizure. Therefore, the police need warrants to search your phone based on probable cause that something related to your alleged crime is in the phone. (Free legal advice: Never consent to a search and never give your passcode or passwords).
So if the police have gone through the proper channels, then your rights aren't being violated. The problem is that they simply can't do it alone. Should we help? No one has to, but if someone like Apple wanted to, they certainly could. But they do not.
The problem remains:
Apple is a private company. They have politely declined to help. Sorry, FBI
. So this issue is no longer about the privacy of the iPhone owner, but the privacy and freedom of the private company to act or choose not to act. I fail to see how forcing anyone (companies are "people" too) to help the government is OK. The battle wages on.
But it will be shocking to see if Apple is ordered to act and will create a very scary precedent if it happens.
In 2014, NBC Nightly News started an expose on crumb rubber athletic fields that were growing in popularity around the United States. These artificial, nylon turf fields required faux dirt, which manufacturers got from ground tires. Recycling at this best.
However, one soccer coach, Amy Griffin of the University of Washington in Seattle made a startling discovery. Nearly a dozen former players (mostly goalies) had developed cancer. Most recently, two goalies were suffering from non-Hodgkin's lymphoma. Jordan was diagnosed at 21 and had been playing goalie, rolling around in crumb rubber since age 12. In all, Griffin had a list of 38, 34 of which were her soccer players. She has a feeling that "those black dots" were to blame.
When incidents of cancer in a certain demographic becomes statistically significant, it's called a "cancer cluster." It's also helpful if the cancer is the same type of cancer for the entire cluster. "Statistically significant" means that the rate of occurrence is significantly more than what you would expect to see in a similar group. For example, Camp LeJeune experienced a cancer cluster, but the
Recognition as a cancer cluster means that the Center for Disease Control and Prevention (CDC), Office of Occupational Medicine Occupational Safety and Health Administration (OSHA) U.S. Department of Labor, and the Environmental Protection Agency (EPA) may investigate and possibly hold the liable parties responsible.
Personal Recourse for Cancer Clusters:
If you or your family becomes a victim of a suspected or confirmed cancer cluster, you may have the ability to sue the responsible company or entity. I say company because history has shown that cancer clusters develop after high levels of contaminants are improperly disposed...into water sources, public parks, or land later sold. Mostly private for-profit companies are to blame.
There are several causes of action or reasons for the law suit including, wrongful death, strict liability, negligence and other violations of federal and state specific law. Law suits are typically handled on a contingency fee basis, meaning the plaintiffs (injured party) does not pay for the attorney fees and costs up-front. The law firm fronts the costs and the plaintiff pays the attorney a percentage of the recovered amount and pays back the costs of litigation. If you have ever seen A Civil Action, you know that these cases are very, very expensive to litigate.
The Importance of Experts:
Some plaintiffs have prevailed, others have lost cases early on for lack of evidence linking the wrongful acts to the cause of the cancer. Evidence starts from the moment some one gets sick, however the extent of the sickness may not be known for years. Every jurisdiction has a Statute of Limitation and Statute of Repose that keeps the clock ticking. So experts need to work quickly and efficiently.
What should I do?
Don't live in fear, but monitor your child's health. Pay attention. If you child gets sick, make connections to exposure and talk to other people going through the same thing. If you think you have a case, call a lawyer today.
Bill Cosby's wife, Camille Cosby was been ordered
to testify in her husband's defamation case on Monday, February 21, 2016. The court order required Mrs. Cosby to be sworn in, and give some
testimony. The court order did acknowledge some privilege, but said that she couldn't decline to answer any questions with a blanket "privilege" argument.
At the 11th hour, Cosby's attorneys got the court to delay the deposition and hold a hearing
on the morning of the deposition.
Married folks may be wondering, how? "I thought that I couldn't be forced to testify against my spouse." or "I thought my spouse was not allowed to testify against me"
First and foremost, privilege protects communication not visual observations. Spousal Privilege is based in common law (the historical legal principals that are the foundation for our legal system). Most states have codified the common law into a statute or written law. So you can be compelled to talk about what you saw, or overheard, but not what you were specifically told in confidence.
The second issue you have to legally be married. This may seem very common sense, but you would be surprised. Many people claim to be married because they have been together for so long, or they are mistaken about common-law marriage. In Florida, there is no automatic marriage. Also, you cannot get married after the event and use your new marriage to keep spousal confidences.
Finally, there are exceptions. In Florida, the statute
protects the privilege and provides three exceptions for when the privilege is waived: (1) the spouses sue each other, (2) one spouse is a defendant in a criminal case where the other spouse is a victim, and (3) the defendant spouse waives the privilege and offers the testimony. Most state law and Federal law are similar.
So if you think you're off the hook to testify against your spouse, think again. And if you find yourself in this position, you should certainly consult your own attorney to make sure that you are not incriminating yourself, which is prevented under the 5th Amendment privilege.
If you have any questions, or for more information, call 904-516-5560 or visit www.plataschott.com.
For years, Warner/Chappell Music company has collected more than $2 million in royalties annually for the copyrights to "Happy Birthday to You." Like everything else, intellectual property (intangible property) may be owned. For nearly the last century, Warner/ Chappell and other companies have bought and sold ownership and enforced their ownership.
Finally, someone challenged this, which is not surprising. Lo and behold, a court in California determined last week that no one owns Happy Birthday. In fact, Warner/Chappell Music now has to repay millions that they "earned" from enforcing the copyright.
So feel free to sing away at the next birthday party without fear of being sued!
Recently, the State Attorney's Office in and for the Fourth Judicial Circuit of Florida outed themselves and revealed that they have started recording inmates everywhere in the Duval county pre-trial detention facility. While recording, they reveal that they have recorded a confession by Donald Smith, the defendant in the murder of Cherish Perrywinkle. Furthermore, the State intends to use the recording at trial. But the question remains...can they use it? Of course they can, but the question goes a little further... can they legally use it without it becoming a reason that the case comes back on appeal. When looking at this issue, the Court will consider the defendant's Constitutional rights. Specifically, the question will rest on the Fourth Amendment rights against unlawful search and seizure, and the Fifth and Sixth Amendment rights to counsel (an attorney). The United States Supreme Court (USSCT) has said two important things on this subject. First, inmates have no reasonable expectation of privacy in jail. This is exactly what the State is saying to justify the use of the tape under the Fourth Amendment. If you have no expectation of privacy, any search or seizure is lawful. However, the USSCT has also said, "Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime." The law clearly states, any secret recording. Therefore, the State may have a problem.
Eventually both sides will make arguments to the trial judge, who will rule on the admissibility. Depending on what the judge decides, the evidence may be used or is excluded. If the evidence is admissible, the State has to decide if they introduce it or not. So do they need it? Mr. Smith has allegedly made several confessions. He allegedly showed the police where to find the body of Cherish. The State probably has enough. The risk of using evidence that is not clearly admissible is that the entire case may have to be re-tried in several years if appellate courts determine that the evidence should not have come in.
In a case as painful and horrific as this one, it would be unwise for the State to risk a very expensive re-trial on evidence that probably won't enhance the evidence in the case. We will just have to wait and see...
Sadly, we lost a United States Supreme Court (USSCT) Justice Antonin Scalia on February 13, 2016. This is the first time that a Justice has died while on the bench in 10 years. However, this is the first Justice to die in session in 70 years.
Session begins the first Monday in October and runs through the summer. Arguments are heard then the justices who hear the argument may join in the Opinion or Court ruling. There are specifically an odd number of justices to avoid ties. With an even number of justices, ties are more likely and that is a problem. Ties mean that the USCCT accomplished nothing, and that it is as if the hearing never took place. This is concerning because it is very hard to get the USSCT to grant cert (certiorari), or agree to hear an issue. The Court only chooses the most important issues to hear. So, for a party to come all the way to the USSCT and have a tie, much has been wasted and the lower court's ruling remains the law.
The need to replace Justice Scalia is very important. The President nominates any qualified person (doesn't have to be a judge or even a lawyer). The Senate Judiciary Committee then interviews the candidate and votes to approve or deny the nomination. This has become a very political process unfortunately.
Because justices are on the bench for life, we see decades of trends in the Court Opinions. While the Republicans control the Senate Judiciary, they want to make sure a "conservative" justice is selected, and the Democrats want more liberal justices. Right now there is a 4/4 split in the liberal and conservative line.
But when it comes to USSCT Justices, "liberal" and "conservative" are not the best labels. While the Court has people who are personally liberal and conservative, Justices are a rare breed. The oaths of the judiciary prevent them from engaging in partisan politics. So their conservative or liberal labels don't come from their party affiliation, but rather how they interpret the law.
Back to Scalia: Scalia was considered the MOST conservative of the justices next to Justice Thomas. He wrote more options and more dissents than anyone with whom he shared the bench. And he was an entertaining dissenter. He wrote scathing criticism of the majority options with which he did not agree, and law students everywhere will thank him in perpetuity.
At the time of his appointment, he was paving the way for diversity, as he was the first Italian-American appointed to the Bench, a devout Catholic
(with nine children), and very opposed to abortion and Roe v. Wade.
None of these qualities made him a conservative justice.
Justice Scalia was a strict constructionist or originalist. He did not agree that the Law is a living thing. The Constitution was not alive in Scalia's eyes. Justice Scalia vehemently believed in the Separation of Powers, and that the Judiciary's job was to say what the law is, not what the justices interpreted the law to be or thought the law should be. (The legislature writes the law, and the executive branch enforces the law). The text of the Constitution, he believed should be translated to the meaning that the Authors would have understood at the time it was written. So while Scalia was given the conservative rep, he really was just a voice for the liberals of 1787
He did not agree with looking at legislative intent. Scalia believed that the plain reading of any statute should convey intent. He knew the law, and he made no mystery of where he stood in oral arguments. He spent oral arguments challenging the attorneys and making his case to his fellow Justices.
Scalia was criticized for being conservative in a negative way in modern time especially on his position on issues like affirmative action. But Scalia was a patriot and he believed that we are all one race: American.
He firmly believed in the democratic process. For every ideology that he said the Founding Fathers did not write into the Constitution, he encouraged citizens to vote the same into law to show that the People truly wanted that to be the law.
His strict view of the law was an important element of the Court. He kept the Court in check in many regards. With nothing but like-minded people on the Court, America would be in jeopardy. The balance of ideologies and interpretation is important to the process. We should encourage our Senate to replace Justice Scalia as soon as possible to ensure that our Court can continue to function as our Founders intended.
Although Justice Scalia is no longer with us, his legacy on the Court is forever stamped on the history of America as a reminder that no matter where the future takes us, we never lose sight of the words that our Founders wrote to create this great nation.
We get this question a lot. The short answer is probably not.
When you are in custody and the police interrogate you, they have to advise your of your rights prior to the interrogation. If they do not advise you, anything you say can be suppressed (ruled inadmissible) and the State cannot use it. Sometimes, any evidence gathered as a result of the statements can also be suppressed.
That doesn't mean that the State cannot prove the case. If police witness a crime, they do not need your confession to prosecute you. Many times (especially in drug cases and weapons offenses) the police don't ask you anything because they don't need to investigate. They have probable cause to arrest, they arrest, they bring you to jail and do no more.
This analysis is very fact specific. If you would like to know more about your case specifically, you can call an attorney to review your case in a consultation.
Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com.
Sometimes families fight. Sometimes those fights get physical. Sometimes the police are called and someone is arrested even if the "victim" did not request police or that the primary aggressor be arrested. The family is left wondering, "how did this happen?" and "how do we get the charges dropped?"
When police get involved, unfortunately people get arrested. Of course, they need probable cause to arrest someone, but there seems to always be probable cause when families fight. Once an arrest is made and the booking report is completed and forwarded to a young State Attorney's desk. The prosecutors job is simply to convict people for crimes and punish them for the most amount of time possible. Florida's adult criminal punishment system serves one purpose: punish. 911 is not used to "get help" for your disturbed or mentally ill loved one. 911 is to alert authorities to crimes. And crimes are punished in the State of Florida. The question for the prosecutor is, "to file or not to file?"
When making a filing decision (which can take up to 40 days if the person is incarcerated and more time if the person is out of custody), the prosecutor may call the victim and find out what they want to do. They may call the victim who does not want to press charges and explain that the victim will be compelled to testify whether they want to or not. That mean that the witness will be subpoenaed/ordered to court and put on the stand to testify truthfully against the defendant. If the victim or witness refuses, the judge may hold them in contempt of court and put them in jail until the testify, OR if the victim or witness lies on the stand, they could be charged with perjury, a felony charge. And if the State doesn't call you, the Defense attorney certainly will. Some state attorneys will honor your request if this is a first offense or minor. If a weapon was involved, your loved one may have a big problem.
Hiring an attorney for the family member is a good start. The prosecutor will take an attorney's call and listen to what happened. But if you were the "victim," you may want your own attorney to advise you in case you've also committed a crime (battery, lying to police, et cetera). The attorney may be able to convince the prosecutor to divert the case into a program. Diversion programs could lead to dropped charges.
Many prosecutors have "victim advocates." If you are the "victim" this is the person that you need to speak to. They assess your desire to have the case dropped and may also sell that to the prosecutor on your behalf. But the fact remains, once the police get involved, the victim's desire is not the final say in prosecution. It is merely a consideration.
If you don't want to see a loved one prosecuted, don't call the police. If someone else calls the police, remember that you cannot lie to the police. However, you can invoke your right to remain silent, you do not have to let them inside the house, and you may call an attorney prior to speaking to police.
Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com.
Many clients wonder whether their probation for misdemeanor Driving under the Influence (DUI) in Florida also includes no alcohol consumption. While every case is different, it is important to keep a few things in mind.
(1) You live by the Rules:
The Probation Order will clearly outline what you can and cannot do. Get it. Read it. Memorize it. If there are ambiguities like "follow standard conditions
," ask your attorney or probation officer to explain what the term means. If you want to know if you can drink, you can always ask.
(2) Your new best friend.
Your probation officer (PO) has a lot of discretion to violate you or not violate you. If the PO doesn't like you (because you don't do what your supposed to, you have an attitude, or you simply rub them the wrong way) life can be more difficult. It's best to work with your PO to stay on their good side. There is no time like the present to get your life together and be on top of your probation and cut out alcohol for a few months.
(3) Your Jury, Judge and Executioner:
If you violate probation, the same judge who knew the facts of your case and possibly how belligerent and drunk you got, heard all the excuses, gave you probation rather than jail time is the same person that you'll be asking for a second (or third) chance. Just like your probation officer, it's best to keep the judge on your good side. If you are violated for drinking, or worse, an alcohol related offense, the judge will probably be less willing to give you a break.
(4) Common sense:
You got a DUI. Although anyone can find themselves facings a DUI, alcohol directly put you in this situation. It's better to avoid it.
If you are facing a violation, call an attorney.
Plata Schott Attorneys & Counselors at Law is a law firm with offices in Jacksonville, Florida serving all of Northeast Florida. For more information, call 904-516-5560 or visit www.plataschott.com.
If your friend was recently arrested, you're probably wondering what a "good friend" would do for your now-incarcerated buddy. Depending on the type of charge, and the county of arrest, your friend could be in custody without the ability to post bail (money to be released) for 12 hours-24 hours unless they are not able to post bail. Every jurisdiction has first appearance court. Some counties hold first appearance court once a day, other's hold it twice a day. Your first step is to call the jail (or ask the arresting officer) when your friend will go to his or her first appearance/bond hearing. (For children, this is called a Detention Hearing).
Hopefully you already know why your friend was arrested. But even if you don't know the charge, handcuffs equal Criminal Defense attorney. Your second step is to call a local Criminal Defense attorney. This step is important. Your friend has the absolute right to choose their own attorney, but you can get the ball rolling for your friend by getting an experienced Criminal Law attorney to review the case and possibly attend the bond hearing. It could be the difference between thousands of dollars of bail, and possibly catching a legal deficiency like a lack of probably cause. Appearance at bond hearings could range from $500-$1500 or more depending on the day or the charge. You have the right to negotiated that the bond hearing fee be applied to the retainer if your friend hires the attorney.
How do you find a good Criminal Defense attorney? If you know a lawyer (or another friend who had a legal run-in), call them and ask for a referral. If you don't, try avvo.com. Be patient with this process. If it's in the middle of the night, go to sleep, wake up at 7am and start calling law firms. Very few people can get back to you at 2am, but you'll have a great chance at 8am. Must Criminal Defense attorneys know that emergency calls may come in right before court starts.
Finally, attend the bond hearing and get as much information as you can about the case and what happens. If your friend cannot get out of custody, make sure that you encourage your friend to invoke their right to remain silent, and hire an attorney. Be supportive during this tough time. Remember that it's a better investment to hire a good attorney than to get out of custody if your friend is torn between the two options.
Plata Schott Attorneys & Counselors at Law is a Jacksonville, Florida law firm with attorneys practicing Criminal Defense, Juvenile Defense, Family Law and Personal Injury Law. For more information, visit www.plataschott.com.
Belkis Plata will be honored by MENTOR: The National Mentoring Partnership kicking off their 6th Annual Mentoring Summit at the Library of Congress in Washington, DC on January 27, 2016.
Belkis Plata to be honored in DC next week.
Ms. Plata experienced the benefit of mentoring as a mentee through Take Stock in Children. She began her career as a mentor while studying at the University of Florida. She continues to mentor now formally as a mentor for Take Stock, and informally by helping young attorneys and speaking to high school students about the consequences of crime.
Ms. Plata is honored with two other champions of mentoring: Dr. Sharon Rose Powell and Curley M. Dossman, Jr..
For more information, the entire press release may be read here.
Dear Florida Powerball winner:
Congratulations! 1.5 BILLION
dollars divided by three equals $533,333,333. Amazing! You life is about to change, but the choices that you make in the next few days and weeks will determine if you live comfortably for the rest of your natural life, or you life spirals out of control into a tragic end. Choose wisely....your life may depend on it
. You have 180 days to claim the prize. Do not feel rushed. But, please SIGN YOUR TICKET right now!
The Florida Lottery website is currently down, but here are some tips for the time being.
(1) Do NOT tell anyone..except your spouse and your attorney.
You are probably thrilled! You think your problems are over, but if you tell people that you won, you are putting yourself at risk of financial and physical harm. People are crazy, and crazy people do not think things through. Google yourself right now... your address, phone number, part of your social security number, and more is right there for everyone to see. This is the largest jackpot ever, and everyone is going to want to know who the winner is. Some people are merely curious, and others want to find you to ask you for a cut of the money because you can afford to help everyone, right?
Some winners have been kidnapped, burglarized, hustled, sued and more
. Human nature can be unpredictable, and you don't want to take a chance.. Now that you have won, you deserve to quietly enjoy every cent for the rest of your long, natural life. I know you love you friends, you significant non-spouse other, and your co-workers, but just don't.
(2) Hire an attorney today.
Not all attorneys are created equal. A personal injury attorney who you see on TV is not your best option right now. Estate Law and Tax Law attorneys are your best bet. You NEED an attorney who can advise you on the law regarding the Florida Lottery and taxes. Remember, attorneys are bound by confidentiality, so you can freely discuss your new life with them.
An attorney will explain how you claim and how to fill out the claim form.
An attorney will be able to correctly advise you as to how to accomplish everything that you would like to do... paying off debts, gifting, saving, investing, spending, and making your money last. You can discuss the benefit of the lump-sum verses the annual payments. They can also help you create a trust to claim the prize and take steps to protect your privacy after you claim your prize. Florida Law requires that the winners name, age and city of residence are published, but you and your attorney can talk about ways to protect you even if that information is published.
Attorneys can offer a free consultation and work on a contingency fee (taking a percentage of your claim) so that you don't have to pay prior to claiming your prize. In your case, you should not pay more than 1% contingency fee and even that is a lot. Our firm agreed that .01% is fair.
(3) Pace yourself.
Pay off your debts then slowly upgrade. If you want to send people money, have an attorney send confidentiality agreements prior to sending money. Pay off mortgages or loans rather than cash presents for tax reasons.
Buy a new house, but keep your old house so people have no idea. Use your new trust to purchase property so your name is not on the deed and no one knows.
(4) Deal with your problems today!
I hope that you are the salt of the Earth. If you are not, that's OK, but it is time to get help for problems that may drain your bank account like a bad relationship, poor money management, addiction, alcoholism, mental illness or other legal issues. There are experts for hire who can assist you with kicking al of those problems to the curb. Don't give all of your money to drug dealers
. If you know that you will not be able to contain yourself, consider a conservatorship. Hey, it worked for Britney
If you were not happy before, you will not be happy now. Consider counseling and a life coach to help you find peace and happiness in life so that you can enjoy your new wealth. Consider moving away from a really bad situation and surround yourself with positive, stable people. If you're already a happy person, don't let this windfall destroy that and hire professionals to handle the less-fun side of money management.
(5) Get a Will.
(6) You have to tell your spouse
. But if you want out of the relationship, a Family Law attorney can also help.
(7) Be safe!
Don't engage in risky behavior. The point is to live forever
now that you have the money to do so.
(8) Remember that a big win doesn't make you OR YOUR FAMILY a legal, financial or business expert.
Remember: money doesn't make you, your family, or friends smarter, but it can buy you a hell of an education. If you want to invest or donate, allocate 10% for that purpose and have it managed for that purpose (charitable donations, helping young entrepreneurs or family inventors). Consider making objective standards for giving money away that a trustee may follow. For example, you only donate to organizations that help children who have terminal illnesses in the United States. Or, you pay the student loans for young single parents with professional degrees. The possibilities are endless.
Just trust the experts, unless of course you are one! And for the love of God, don't trust friends and family to manage your affairs or speak on your behalf unless they are licensed professionals.
(9) If it floats or flies, rent don't buy.
Are you required to fly weekly to various meeting around the globe? No? You DO NOT need a boat or a plane! Planes and boat depreciate as soon as you make the purchase. They are terrible investments. You can get a membership
to one of many companies that will have jets on call for you at any time. You can also rent the most luxurious yachts in the world for weeks at a time and walk away as soon as the fun is over. Trust me.
(10) Deactivate Social Media.
We all wish you the very best, but don't rub it in. You're not a #richkidofinstagram.
Good luck making this money last for generations to come!
Plata Schott Attorneys & Counselors at Law is a Jacksonville based law firm serving all of North Florida. For more information, call 904-516-5560 or visit our website at www.plataschott.com.
Driving Under the Influence (DUI) is a crime that can land anyone in jail for at least a night. There are few crimes for which we as defense attorneys represent such a wide variety of people, but DUI is one of them. It is not a crime to drink alcohol and drive a car in Florida, therefore many people of all backgrounds become at-risk for DUIs. This New Year's Eve, make sure you understand this charge, and what to do if you find yourself with new cuff links for your tuxedo.
First and foremost, it's a DUI in Florida, not a DWI. Although you can drink and drive, it is
to have a blood alcohol content of more than .08 or higher AND/OR for your normal faculties to be impaired. Law Enforcement determines if you are "impaired" through observation, if you give a breath sample, or if you participate in field sobriety exercises (FSEs). Your driving privilege is affected if you refuse to participate in a breath test, but the alternative is providing law enforcement with evidence of a DUI.
On nights like NYE, police are specifically looking for impaired drivers. What are they looking for specifically? Erratic driving patterns, failure to use lights or turn signals, speeding, running a red lights.... and more. Law enforcement may stop you in Florida when the observe an erratic driving pattern (weaving, slowing and speeding rapidly, changing lanes for no reason) if they believe the driver is ill, tired or impaired even if you don't commit an independent traffic violation. They can obviously stop you if you do commit a traffic violation as well.
From a Stop to an Arrest:
It may not take a lot to stop you, but it takes probable cause that a crime was committed to arrest you. Keep in mind, when the police stop you, they don't know if you're impaired. YOUR actions determine if you give them the evidence (probable cause) for an arrest whether or not you meet the legal definition of impairment. If you cannot determine when you've crossed from a legal .07 to an illegal .08, how can law enforcement? It's an educated guess, and police are trained that they have a duty to keep impaired drivers off the road. So while you can have a few drinks and drive, you probably shouldn't.
The entire stop may be recorded, but video cannot document smell or how you appear close up. Police are trained to spot signs of impairment. More accurately, they are always searching for signs of impairment when they make a night-time stop. Almost every narrative of a DUI arrests uses the phrase "odor of alcohol," "bloodshot, watery, glassy eyes," and "flushed face." If a statement is made, we also see "thick-tonged" and "slurred speech." Officers are trained to include these key phrases, and this will be written about YOU in the event you are stopped. The question is, how much more evidence will you give them?
Know your rights:
You have the right to remain silent. The officer will ask questions. You do not have to answer them. You must provide your full legal name, which is located on your driver's license. You are not going to talk your way out of an arrest. It's better that you don't say anything at all.
Getting Out of the Car:
If you are asked to exit your vehicle, you have a problem. You should be on high alert to mitigate your circumstances. How you exit your vehicle will be used as evidence of impairment. If you use the door for support to exit, that will be noted. You probably cannot refuse, but it is based on the circumstances of the stop. If you are out of your vehicle, you need to come to terms with the fact that no matter what you do from that point on, you will most likely be arrested. It's best to start invoking your rights.
Field Sobriety Exercises (FSEs):
If you are out of the car, you are likely going to be asked to do FSEs. You have the right to say no, but the refusal is admissible in court proceedings to show guilt. Your license will NOT affect your license despite what the officer tells you.
The FSEs are all subjective. They are complicated, and whether your pass or fail is solely up to the officer's opinion. If you refuse, you will probably be arrested. If you do them you will probably be arrested.
If you choose to do them, consider the following:
(1) You must listen carefully to the instructions. They only say them once.
(2) The instructions are literal. Do exactly what they say.
(3) Take your time, but don't hesitate. That can be used against you.
(4) Do not start until you are told to start.
(5) Remember: you're on video.
If you are read a Miranda warning prior to your arrest or a request for FSEs, you need to express your confusion to the officer. Miranda is for an arrest. In Florida, the Implied Consent law states that you consent to a breath tests by virtue of exercising your privilege to drive. You do NOT have the right to consult with an attorney prior to the test. However, if the officer reads Miranda warnings and tells you that you cannot consult with an attorney at the same time, tell the officer that you are confused.
To blow or not to blow?
Again, Implied Consent
applies to Florida drivers. If you blow, you are facing a DUI charge, additional sanctions for a "double blow," which means you blow two (2) times the legal limit, a DUI charge, and a 6 month administrative suspension on top of any probationary suspension as a condition of your sentence. If you choose not to blow, you are facing a 90 day wait period to get a hardship license, which will be suspended for 12 months administratively. If you have previously refused, you will be charged with Criminal Refusal, which is a separate crime and your license will be suspended for 18 months. The same applies for urine, even if you already gave breath.
It's not an easy position to be in.
Blood is slightly different, Unless its impossible/impractical to get blood or urine, you consent, or there has been an accident with death or injury, law enforcement should not draw your blood without a warrant. Don't consent.
You will be booked. If you have $500 cash, you may be able to get a cash bond, go home, and come back for court that next afternoon. If not, you'll be in until at least 1:30 p.m. for First Appearance court.
First Appearance in Duval is known as "J1." You will be herded into a courtroom with dozens of other inmates. It's long, and there are a lot of words and terms thrown at you via a well-produced video. You probably won't have an opportunity to consult with an attorney prior to you going before the judge unless you hire one to come with you.
You're going to be made a deal: "First Mins
." All of the lawyers, and the judge will say this term several times, but you won't be clear as to what it means until you're serving probation and finding out the hard way. Get out of jail, talk to a lawyer, fight the charge, and make a good choice when you're not in shackles. Be prepared to wait several hours for your release. It may take all night on the holiday.
When you get out:
Be on your best behavior. Start collection mitigation: proof of employment, proof of your employment being affected by the charge, school schedules, code of conduct that applies to you, need to drive, et cetera. Talk to your lawyer about the facts of the case. Be patient. A good defense can take months or years.
You need to decide if you will have an Administrative Hearing, or if you will waive the hearing and apply for your hardship license with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). This is a conversation to have with a lawyer. Here is the Application for Administative Hearing HSMV Form 78306
, and the Application for Hardship License (just save the image).
Hire a lawyer:
Despite your better judgment, you were arrested for a DUI. You should get a lawyer as soon as possible. You can typically hire an attorney for First Appearance court only, and make a choice whether to hire them later. The going rate for a First Appearance hearing is in the neighborhood of $500-$1,500. Some lawyers will apply that to the full fee if you hire them. If Jacksonville, the average legal fee is $5,000-$8,000 for a First DUI without an Administrative Hearing. Some charge more, some charge less. The more tends to make sense, but beware of the less.
A J.D. from Google does not substitute the knowledge of an attorney, especially in the world of DUIs. It requires someone who practices Criminal Defense, and who understands all of the ways that YOU will be affected by the charge. You don't have to face this alone.
Happy New Year!
If you or a loved one is arrested for a DUI this New Year's Eve, call us at 904-516-5560, or email firstname.lastname@example.org. Plata Schott Attorneys & Counselors at Law has represented thousands of criminal defendants. If you mention this blog post, we will discount our fee by 20%.
We previously posted about our client, Leonard Dillard
whose Motion for Immunity from Prosecution was granted by the Honorable Judge Soud in Duval County, Florida. Mr. Dillard's story was told again on Sunday, November 21, 2015, when Larry Hannan from the Florida Times-Union wrote an excellent article
on the immunity statute in Florida knows as "Stand Your Ground." The article questions the prudence of Stand Your Ground, and quotes Charles Rose,
from the Center for Excellence in Advocacy at Stetson University College of Law, and accomplished writer
who claims that Stand Your Ground doesn't work. Here is our response:"On my desk sits a framed verdict. Two years into practice, I had a client who was innocent. I don't mean that the State of Florida could not meet their burden at trial. I mean that he should have never been charged. I filed a motion for Immunity under Chapter 776 of the Florida Statutes, which was improperly denied. Then Mr. Chavarrio Thaxton was acquitted at trial. I think about Mr. Thaxton every day and what his case taught me- there are actually innocent men and women in the Duval County jail. Rarely are their stories heard, but our duty as criminal defense attorneys is to use every available tool to correct the errors of prosecutors who presume guilt and rarely get an unbiased versions of events prior to filing charges.
"Our firm has been looking forward to last Sunday's article ever since Mr. Hannan sat down with Mr. Dillard nearly a year ago. When I read the article, I was shocked and angered by my former professor, Charlie Rose's comment that filing for Immunity is tantamount to malpractice. Mr. Rose heads up the Center for Excellence in Advocacy from which I graduated at the #1 school for advocacy in the country- Stetson University College of Law. For an attorney in that position to make such a comment is reckless as it dissuades vibrant attorneys who are willing to exhaust all options when it's truly appropriate.
"Stand Your Ground is for innocent people. Typically, you don't hear about the people who are immune under the Statute. Law enforcement considers the facts and never arrests those people using the same law.
"Mr. Rose is wrong. If you know how to use this tool, it works. My law partner, Belkis Plata who is quoted in the article and I have a mere five years of experience. We each represented more than 2000 men, women and children while serving as Assistant Public Defenders. Of those, we have each represented at least one innocent person, and their names are included in the 12 men and women who prevailed with after filing for Immunity under Stand Your Ground."
We believe that Stand Your Ground immunity works if used properly. It's not intended for every defendant, which explains the rate of failure. We understand when it is appropriate, which is why we have represented more than 16% of the people who prevailed in Duval County.
If you or a loved one is charged with a crime and believe you are entitled to immunity, call us today or visit www.plataschott.com.
It's an epic tale. Weak versus strong. The weaker of the two overpowers the strong. A story beautifully told in 1 Samuel 17 of the Bible. In modern America, this struggle is seen in the world of sport and competition. For lawyers, every case seems to be a tale of David and Goliath. The "Goliath" of them all being the Government.
In Florida, the Driver and Vehicle Information Database (D.A.V.I.D) is exclusively for Government including law enforcement, the judiciary, prosecutors, and some related state agencies such as Department of Children and Families. (Private attorneys like us are not authorized access). Authorized users may only access the system, which includes Driver's License information, personal contact information, emergency contacts, crash reports, vehicle registration, and more for business purposes like crash investigations, and confirming identities.
Unauthorized use is subject to penalties under Chapter 119 Florida Statutes, which states that EACH unauthorized use is a misdemeanor in the first degree punishable by up to one year in jail, and is subject to a $500 fine. Misuse is also a violation of the federal Driver Privacy Protection Act, which provides a civil cause of action. Additionally, it's career suicide.
In 2012, The Orlando Sentinel exposed a 400% increase of misuse. Some refer to the system as "Google for Cops." Many misusers of the system are simply lazy or curious. Some are just flirting.
So why does this matter? Those who have the power to access this information may think, "no harm, no foul," but its a violation of the law for a reason, and every Floridian should request their free public record annually to see if your information was illegally accessed.
A few months ago, we learned that a colleague had requested his D.A.V.I.D. report for free from the State. What he discovered was shocking...a judge, a JUDGE illegally accessed the D.A.V.I.D. system and ran a background check on this attorney. Rather than exercise his rights publicly, he quietly addressed the situation with the Chief Judge.
So we were curious. Has anyone illegally accessed our records? We did a public records request and here is what we found...
One (1) investigator at the State Attorney's Office for the Fourth Judicial Circuit (Duval);One (1) Assistant State Attorney for the Ninth Judicial Circuit of Florida;One (1) employee of the Duval County Property Appraiser's Office;Six (6) Jacksonville Sheriff's Office officers, and two other searches from anonymous users from JSO; andOne (1) judicial assistant for a circuit judge for the Fourth Judicial Circuit of Florida (Duval).
While we consider our next step legally, you should take a moment to request your D.A.V.I.D. search history. Here is how:
(1) Send an email to DAVIDPublicRecordRequest@flhsmv.gov;(2) write "Record Request" in the subject line; (3) in the body of the email write, "I would like to request a record of every time DAVID was accessed to search my Driver’s License# [INSERT NUMBER] from [DATE] until Present.
The agency will notify you that the first hour of the search is free, and you would owe $19.08 for each additional hour of search. Typically, the search takes about 1-2 hours.
If you determine that you are a victim of D.A.V.I.D. misuse and you would like to move forward on civil or criminal remedies, contact us as soon possible to discuss your legal rights at 904-516-5560 or email@example.com.
Plata Schott Attorneys & Counselors at Law are attorneys with offices in Jacksonville, FL. For more information, visit www.plataschott.com.
We are a Law Firm for All of Life's Trials. Those aren't just words. We are trial attorneys at home in the courtroom.
When getting ready for trial, much time and effort is dedicated to preparing the theory of the case. A good lawyer starts with closing argument. They ask themselves, "what is the point of all this?" If you don't know where you're going, then you don't know what road to take. (Write that down).
Rhetoric, the art of persuasive speaking is a skill that every good attorney has mastered. Yet, sometimes even poor advocates have the benefit of buzz words on their side. For example, the word "Defendant" has a negative connotation in our criminal justice system. If you are a defendant (emphasis on the -Ant), most people assume that you have done something wrong. When a prosecutor or plaintiff attorney calls someone "defendant" over and over, finger pointed, it's easier to emphasize the negativity. (Fourth Judicial Circuit Prosecutors are especially good at this (see photos)). The same goes for the word "victim."
A few years ago, Belkis added a new tool to her practice: filing a Motion in Limine to keep the State from calling the alleged victim, "victim." Brilliant! But, it didn't work with the particular judge that she was practicing in front of at the time.
Last month, we tried again on a case that we handled pro bono as "Special Public Defenders." It worked. Probably because the argument went something like this:
Court: Ms. Schott, can I have argument on Defense Motion in Limine number 3?
Ms. Schott: Your honor, we would rely on the arguments made in the four corners of the motion. The alleged victim is not a victim until the State proves their case. Furthermore, the State does not need to call her a victim to prove the case. It's highly prejudicial.
State: Judge, she is a victim! Because the defendant committed this crime and made her a victim!
Court: (laugh). Granted.
Please feel free to use the motion below as often as appropriate. God's Speed.
* Editor's note: While we did not invent this motion, it's not used enough. We wanted to remind our colleagues that it is a good tool and we would love to see everyone use it more ofter.