Carbone's Court

The Costa Concordia Catastrophe

2012-01-31T17:49:00.000-08:00

For Titanic fans such as myself, the Costa Concordia disaster must seem like deja vu all over again, as the great Yogi Berra would say. A few weeks ago the unthinkable happened as the humongous ocean liner Costa Concordia hit a reef full of rocks off the coast of Italy and partially
capsized, leaving many injured, 17 dead and at this time 15 people missing. What is even more bizarre is that the captain allegedly abandoned ship before all passengers and crew were safely off board.

It is one of the most known laws of sea that a captain is to go down with the ship. Since the captain of the Costa Concordia left his post before all were off the ship, he is being charged with a plethora of charges, such as manslaughter, negligence, abandoning ship and a whole host of others. Along with abandoning ship, the captain is being accused of sailing the boat too close to the coast and going against strict protocol that would rule out such a maneuver. It is alleged that the captain sailed the boat closer to shore than normally permitted in order to do a "salute" to the island. The captain now claims that this type of maneuver is often done and even encouraged by management in order to promote business.

The captain of the Costa Concordia has not officially been convicted of any of the pending charges and remains on house arrest. From a legal stand point, the captain looks to have a long road ahead of him in clearing his name due to the fact that his actions can no doubt be considered negligent and reckless to prosecutors. As it pertains to the charges of manslaughter, it goes without saying that the captain did not actually intend for any of the more than 4,200 people on board to perish. However, if his alleged actions prove to be true, he can be charged with such a terrible crime since it was reasonably foreseeable that said actions could cause serious danger to all those onboard the nearly 1,000 foot long ship. Based on this forseeabily factor, it then becomes irrelevant whether or not there was specific intent. Just the fact that the negligent actions were commenced by the captain would be enough to apply said charges.

On a personal note, I have been a self-professed Titanic fanatic ever since my late great Poppy Zurlo told be about the tragedy at theage of 7. I have read countless books on the topic and watched every singlemovie and documentary there is pertaining to the "unsinkable" ship. With all the technological advancements that are available now 100 years later, I would have never dreamed that an eerily similar disaster would remotely transpire again. I guess even with all the great strides in technology, there still is no accounting for human error.

For more information or if anyone has any questions or comments, feel free
tovisit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/

How to File For Custody in Family Court

2012-01-09T19:09:00.000-08:00

Dealing with a family court matter can be one of the moststressful experiences a person may face. More than any other court, familycourt involves all sorts of emotions stemming from a plethora of different angles.

When faced with a family court issue such as custody, neglect or family offense, the first thing one must do is be aware that they themselves may fileat any time within the applicable family court.

For those who are not familiar with the family court process, fear not. Mostclerks at the family court level are very much aware that most people arefiling for the first time and that their stress level may be at an all time high.

The family court clerk will provide you with the appropriate paperwork, free ofcharge and with the needed guidance that goes along with it. They can not giveyou legal advice, but in terms of what to fill out and how to go about doing so is what they are there for.

Most family court petitions provided by the clerk are fillin the blank style so don't worry if you are not up on your legalese. Once the applicable petition is filled out, someone from the court will notarize your signature and file accordingly. From there, a court date will be assigned to your case.

If at any time after you file a petition and wish to seek legalcounsel, one has every right to do so. The petitions filed can always beamended and modified so don't worry if something is filed in error.

Family court matters can be an emotional roller coaster. However, do not let the initial filing of papers hinder you in fighting for what you believe is in the beat interest of yourself and your children.

For more information or if anyone has any questions or comments, feel free tovisit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/

Christmas Laws to Live By

2011-12-23T14:14:00.000-08:00

To me, the holiday season isn't the same without watching the classic "Christmas Vacation" over and over again until the dvd skips. I would love to decorate my house with 25,000 imported Italian twinkle lights but my wife would no doubt have a fit bigger than Raphie's mom did in the movie Christmas Story over the "Leg Lamp."

In any event, listed below are some of my laws, rules, and regulations that pertain to the holiday season. I hope said procedures are adhered to accordingly by all. Merry Christmas and Happy New Year to all!

1. "Emmet Otter's Jug Band Christmas" must be viewed at least 8 times prior to Christmas Day. Initial viewing is to be commenced upon putting up the Christmas tree.

2. On Christmas Eve, when enjoying a cocktail or 3, do not spout off about your boss. Uncle Hank and Cousin Randy may take you literally and do something rash.

3. The movie “A Christmas Story” should be watched in its entirety. However, one should resist temptation to stick their tongue on a flag pole. Do NOT purchase a Red Rider bb gun. You'll shoot your eye out! Also, be sure to drink your Ovaltine.

4. Non-consumption of those peanut butter cookies with the Hershey kiss in the middle is a serious offense.

5. Store bought eggnog is strictly prohibited.

6. A big screen TV is the gift that keeps on giving all year long.

7. Re-gifting is not a crime.

8. If your Secret Santa gives you a case of beer, it may be time to start planning some New Year’s resolutions.

9. Despite recent trends and policies, you will not be arrested if you utter the words “Merry Christmas.”

10. When in doubt, gift card it out.

The Pantera Tragedy 7 Years Later

2011-12-08T06:30:00.000-08:00

December 8, 2004 was a very sad day in the world of music as that was the day “Dimebag” Darrell Abbott was murdered while he was literally playing guitar on stage. For those readers that are not a fan of hard rock music, Darrell Abbot was the lead guitarist for legendary heavy metal band Pantera. The band was extremely popular during the 1990’s among heavy metal aficionados and the tragedy that struck in Columbus, Ohio in 2004 remains one of rock’s most tragic deaths.

Pantera broke up in 2003 when singer Phil Anselmo had a falling out with Darrell and his brother, fellow band mate and drummer, Vinnie Paul Abbott. The split was filled with acrimony to say the least and both Anselmo and the Abbott brothers went their separate ways and formed their own respective bands.

Upon the death of Darrell Abbott, Phil Anselmo attempted to attend the funeral of his former band mate but Vinnie Paul and Darrell’s long time girlfriend Rita Haney prevented him from doing so. They harbored great resentment toward Anselmo, as they both felt it was he who was responsible for Pantera’s breakup. Vinnie Paul further held distain for Anselmo due to alleged negative comments he made toward Darrell in the press.

Rita Haney went on the record saying that Anselmo was essentially just as responsible for the murder of Abbott as the man who actually shot him on stage. She went on to claim that if Anselmo did not force the breakup of Pantera, Darrell would not have been playing the small, dismal venue on the night of his murder. At the height of Pantera’s fame, they were playing in much larger arenas with heightened security. Upon investigation of Abbott’s death, it was revealed that the gunman acted out because he was upset about Pantera’s demise and he held Darrell responsible. It was also later determined that the gunman had severe mental issues.

In response to Rita Haney’s claims, the legal issue boils down to reasonable forseeability; more specifically, was it foreseeable that Darrell Abbott would be murdered if Anselmo had not broken up the band.

While it may be factually true that had Anselmo not left Pantera, Abbott would not have formed a new band and would not have been playing in the smaller venue on the night of his murder. However, for anyone, including Rita Haney, to hold Anselmo responsible for the actions of a mentally ill murderer is not legally plausible to say the least.

To be deemed legally responsible for certain actions, whether they are criminal or tort, the issue of foreseability comes into play. If a party acts in a way where it is reasonably foreseeable that said actions would have a negative impact upon another, that party would be deemed legally culpable.

For example, if a person drinks an abundant amount of alcohol and then drives their car home, it is reasonably foreseeable that they may cause an accident and that other people may be injured or killed as a result. In this scenario, it would be justified to hold a drunk driver responsible for the harm they cause to people they hit with their car while under the influence of alcohol. The same cannot be said regarding the actions of Phil Anselmo as they pertain to his departure from the band Pantera.

While it may be true that had Anselmo not left Pantera, Abbott would not have been playing in the smaller venue on the night if his murder. It can also be assumed that the man who shot and killed him would not have done so had Pantera stayed together as a band. However, it was not reasonably foreseeable that Darrell Abbott would have been murdered by a mentally ill fan based on Anselmo’s decision to leave the band. The actions of the crazed gunman on the night of December 8, 2004 superceded anything that Phil Anselmo did with regard to his involvement in the demise of Pantera.

When it comes to legal culpability, reasonable foreseeability is the ultimate measuring stick. Often people want to point fingers and place blame where it doesn’t legally belong. Before they do, they should take a step back and ask themselves whether or not it is reasonable, under the circumstances, to hold said person responsible.

In the case of the Pantera tragedy, both Vinne Paul Abbott and Rita Haney were understandably emotional. In the heat of the moment, they immediately lashed out at Phil Anselmo. While it may be reasonable to be upset with him on a professional level, it is absolutely unreasonable and outright wrong to hold him legally responsible for the death of Darrell Abbott.

As a fan of Pantera, I hope Anselmo and Vinnie Paul make amends, but as of this writing, it doesn’t appear it is going to happen in the foreseeable future.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
www.lakegeorgelawyer.com

The Laws of Black Friday

2011-11-24T17:29:00.000-08:00

1. The laptop that is advertised at $150 is not nearly worth waiting in line at midnight for.

2. The 42 inch Flat Panel TV for $199 will be long gone prior to your arrival at your favorite local retail store.

3. Coffee up. Black Friday shopping is serious business and you will be dealing with a plethora of seasoned veterans who will stop at nothing to save a moderate amount of money.

4. Have a game plan. Make a list and check it twice. You will be eaten alive if you plan to window shop and browse. I found this out the hard way. My wounds are still healing from the Wal Mart mosh and shuffle of 2007.

5. Use the buddy system. Never enter the vicious waters on Black Friday alone. Bring your wife, friend or cousin who owes you money. Trust me, strength in numbers is essential on this post holiday extravaganza.

Happy shopping! Hope to see you at Dennys for a post shopping feast.

Marty Carbone, Attorney at Law, Carbone & Carbone LLP

www.carbonelawyer.com

Vetting a Vehicle & Traffic Attorney

2011-11-14T13:33:00.000-08:00

Getting issued a traffic ticket can be an extremely taxing experience, both mentally and monetarily. When faced with a vehicle and traffic violation, one should seek out proper guidance from an attorney who regularly deals in this area of law. One would be surprised as to how many lawyers out there do not know the ins and outs of traffic law. It may not be one of the more glamorous areas of law, but when representing a client with a traffic infraction, the attorney should not just "phone it in" as a no brainer. There are several things to take into account before accepting a proper plea on a client's behalf.

No matter how small the violation, it is always in one's best interest to be proactive in getting their ticket handled swiftly and properly. Here are some helpful tips to consider when vetting an attorney to handle your traffic infraction:

1. Location. Make sure the attorney you choose has some familiarity with the area in which you received a ticket. Small Town and Village courts have a lot of idiosyncrasies that local attorneys are likely to know about and can better be of service to you. Also, the less travel time an attorney has to make to court, the less likely he/she is to charge.

2. Communication. Make sure that when you contact a traffic attorney, he/she is up front with you and conveys his/her advice in an articulate fashion. Most attorneys will offer a free initial phone consultation. Based off this consultation, size up what the attorney has to offer and if you establish a good rapport, this is a positive indication as to how the attorney-client relationship is likely to go.

3. Price. Be mindful that there are some attorneys out there who advertise a very low flat fee, but once you hire them, they change their tune and inflate the price to reflect your “special” or “unique” circumstances. The old saying holds true in that “You get what you pay for.” Don’t be so quick to hire an attorney solely on price, as more often than not, the lowest priced attorney is not necessarily the most competent attorney.

4. Referrals. Do an online search when hiring a traffic attorney. If someone refers an attorney by name, check them out for yourself, either by doing a google or bing search or by going directly to their website. In this day and age, most attorneys have their own website. If they don’t, that may tell you something right of the bat. By going to an attorney’s website prior to speaking with them, you will get a chance to go into the conversation already knowing something about them and when speaking to them, you can see if the information they give you “jibes” with the information that is on their site. You would be amazed as to how many attorneys don’t know that they even HAVE a website, let alone know what content about them and their services is on it.

5. Experience. Make sure that the attorney you hire to represent you in your traffic matter has actually handled cases like yours in the past. Many attorneys dabble in all sorts of areas of law and if traffic is not one they handle on a regular basis, they are not in a good position to advocate in your best interest. The attorney you choose does not have to have a legacy dating back to the 1800’s. Nor do they require “over 50 years combined experience.” More times than not, an attorney who has handled his/her fair share of vehicle and traffic cases will suffice. Just make sure that this area of law is one in which they consistently and continuously take on. You certainly don’t want to hire an attorney who has tons of experience in traffic law, but has been out of the loop for a good number of years. Like mentioned above, all City, Village, and Town courts operate a bit different and have their own way of doing things. By hiring a lawyer who is “in the know” will ultimately be of best interest to your legal needs.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup

http://twitter.com/carbonelaw1

www.lakegeorgelawyer.com

Every Vote Counts...Literally

2011-10-30T19:07:00.000-07:00

With election day right around the corner I thought I would share a personal experience as it pertains to an election campaign.

One hears the phrase "Every vote counts" during times of election, but this term holds very true to myself and my family in a very literal sense.

My father and law partner, Martin A. Carbone, Sr., was the acting City Court Judge in Mechanicville, NY for 12 years before seeking the top judicial spot. Prior to his campaign in the fall of 1991, he had already served a year as the full time City Court judge, as his predecessor fell ill and could not complete the remainder of his term.

In order to successfully seek re-election, my dear old dad not only had to fight with the powers that be to finish out his current term, but he also had to change political parties in order to be endorsed and run on a major party line.

My family and I felt like it was us against the world so to speak and we went full speed ahead in my dad's quest to remain City Court judge.

To add insult to injury, my father broke his foot right at the begining of his campaign and was unable to go door to door and meet the public at large. I, who was 16 at time, took his place along with my mother. Together we canvassed the majority of the city of Mechanicville spreading the good word on behalf of my dad.

On election night, things were tense because the race for judge was a dead heat. When the night was over, it appeared that my dad had lost the election by 4 votes. However, the absentee ballots were not accounted for so we had to wait about a week to get the final results.

When all the votes were in, my father had won the election by 4 votes. The celebration was short lived, however, as his opponent challenged the validity of some of the absentee ballots in NY Supreme Court and the election was overturned in his favor by one vote.

Our family was initially devastated, but we brushed ourselves off and filed an appeal in the NY State Appellate Division. The appeal took a few months and my dad quietly lived in exile, away from the confines of his city court chambers.

I remember like it was yesterday when I was in my high school band class and a fellow class mate came up to me and said that I was wanted in the main office. I asked what the problem was and he said my father was on the phone. This struck me as odd since my father had never called me at school before. Remember, this was before cell phones, email and text.

I picked up the phone, praying that nobody died. On the other end, I hear my dad simply say "5-0." Confused, I asked him to repeat what he said. He again only said "5-0." Having not a clue what he meant, I said, "5.0 Mustang?" (they were popular at the time) He said "No, 5-0 decision in our favor."

It then hit me that he was reffering to the 5 judge panel that sat on the NY Appellate Division. To win an appeal, one needs at least 3 of the 5 judges to rule in your favor. In our case, all 5 judges ruled in my dad's favor, hence the "5-0."

I lost my mind after I realized what happened and everyone in the school office looked at me like I was nuts, but I couldn't have cared less.

As a result of the Appellate Division's decision, the election was now overturned in my father's favor when one absentee ballot was thrown out and one was reinstated. The one that was reinstated was initially rejected in Supreme Court because it was filled out in green ink. The judge who threw it out must have overlooked the fact that the law was changed in 1974 allowing absentee ballots to be filled out in ANY color ink, not just blue or black, which had been the standard prior. So with the luck of the Irish, the green ink absentee ballot put my dad one vote over the top and named him City Court judge.

The war was not quite over until April 1, 1992, when the NY Court of Appeals, the highest court in the state, refused to hear my father's opponent on appeal. It was over. It was official. On April Fool's Day, my father was officially named City Court judge of Mechanicville.

The moral of this long winded story is every vote counts. Quite literally in my father's case. One vote determined the outcome of his election. If one person who voted for my dad had instead sat back and decided that they didn't need to vote because they wouldn't make a difference, they would have been gravely mistaken. Unfortunately, this is the attitude of a lot of voters, especially when it comes to the major elections.

I experienced how every vote counts up close and personal. On election day, if anyone out there decides not to vote solely on the notion that their vote doesn't count, rest assured, it does. Who knows, your vote just might be the deciding factor. Literally.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
www.lakegeorgelawyer.com

Steve Jobs and the Law

2011-10-14T18:21:00.000-07:00

With the passing of the incomparable Steve Jobs, one cannot come across a tech article or blog without the mention of his name. With that being said, it is arguable that without Steve Jobs, we would have no blogs to even read. Steve Jobs without a doubt had a significant influence on countless people's lives in terms of technology.

While that may be a mere understatement, what some do not realize is that Steve Jobs in some way, shape or form changed how we as a society function in terms of business across countless platforms. Jobs made computers "cool." His intent was to implement them into our daily lives, for the average person, not for the select "computer literates" that at one time, were very few and far between.

Steve Jobs' influence has been very apparent in the legal world in recent years. The iPad, for example, has only been around for less than two years, but numerous attorneys routinely bring them into the court room, replacing voluminous files and dates books. At one time, paper calendar organizers were a staples item for any busy lawyer. Since the advent of smartphones, specifically the now iconic iPhone, even some of the most "old school" attorneys have ditched their paper planners in favor of their always up to date and synced iPhone.

Steve Job's influence in technology has also been felt in the realm of legal research. More and more law firms are ditching their trusted voluminous legal books, treatises, and journals for online materials. While Jobs did not invent the internet or computers themselves, he had and continues to have an integral impact as to how we use said resources in our everyday lives.

Steve Jobs, simply put, made computers and technology hip, cool, and fun. He made a once complicated venture user friendly and allowed the masses to enjoy what previously only those in NASA could cope and understand. Jobs paved the way for modern computer icons such as Mark Zuckerberg, Sean Parker, Shawn Fanning and Biz Stone. It is arguable that the whole social media revolution would have been brought to the forefront had it not been for Steve Jobs paving the way.

Lawyers, in my opinion, are greatly indebted to Steve Jobs for providing such devices such as the iPad and iPhone, which now serve as a "mobile office" for many attorneys working in the trenches. Steve Jobs, indirectly, did something that very few thought was possible. He made lawyers cool.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
www.lakegeorgelawyer.com

Getting Pulled Over

2011-10-02T17:58:00.000-07:00

Getting pulled over by the police while driving can be a very shocking, startling, and extremely stressful experience. For most drivers, this has happened at least on one occasion and it is something that should not be taken lightly during the moment it is occurring.

Typically, a driver is pulled over by an officer of the law when they are breaking some sort of traffic law, such as speeding, running a red light or stop sign, etc. Other reasons may include suspicion of driving while intoxicated or other criminal offenses. When one views the flashing red light in their rear view mirror, it is important not to go into complete panic mode and disobey said blinking cherry.

When one is summoned to pull over, they should do so immediately. This is common sense of course, but one would be amazed on how many drivers do not do so immediately and suffer the wrath of the patrolling officer once they do indeed stop.

It is vitally important to remain in your vehicle once an officer pulls you over. In this day and age, an officer never knows who can be a danger to their person so they will be quick to defend themselves if they feel threatened by one's actions. Simply stay in your car and follow the officer's lead. They will often open the conversation with either "License and registration" or "Do you know why I pulled you over?" Your response to either of those questions should be in a respectful tone and in compliance to what they are asking. Do not refuse to offer your license and registration, even if you feel as though you have done nothing wrong. Do not aggressively argue with the officer, as this will only aggravate the situation, ultimately costing you further hardship down the road.

You may ask the officer questions, such as what you were doing wrong and so on, but do so in a respectful manner. One does not have to be meek. Simply get your questions across and then continue to follow the officer's direction. Sometimes the less you say the better, as certain things can be used against you when the officer is writing up their ticket, or tickets as the case may be. Remember, the police have heard every excuse in the book and are in no mood to listen to something they likely heard 20 times already that day.

By refusing to give your license and registration to the patrolling officer, one opens themselves up to not only traffic violations, but also criminal charges as well. An officer can charge the non-complaint driver with obstruction of governmental administration, which is a class A misdemeanor. If you catch the officer in a real bad mood, they could even compound the charges and issue a citation for disorderly conduct, failure to comply with an order, and even throw in a parking on pavement violation to add insult to injury.

So if one is ever pulled over by an officer of the law, please be sure to let cooler heads prevail and do what is asked at the time of incident. If you feel that you were targeted or charged unjustly, the time to fight the charges is after the initial stop is over. Do not try to "fight city hall" while on the side of the road. Take your time, seek counsel if necessary, and proceed accordingly. A short fuse and bad attitude can be extremely costly in the long run. Greet the officer with a smile and live to fight another day.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
www.lakegeorgelawyer.com

Avoiding a Speeding Ticket

2011-09-21T20:15:00.000-07:00

1. Know your surroundings. Make sure you are not driving excessively through a school or work zone. Points are assessed double in such zoned areas so be sure to stay odometer-alert when passing through.

2. Don't assume the "Within 10 Miles an Hour Rule." This mythical unwritten rule can come back to haunt those who take faith in it. Many people are under the wrongful assumption that the police will not pull a driver over if they are speeding within 10 miles over the posted limit. This is simply not the case so be careful and try to keep that needle as close as possible to what the signs say.

3. Keep your car in good working order. Make sure both headlights are functioning and that all tail and brake lights are working. Also, make sure that all windows are within the legal tint limit. Nothing infuriates a police officer more than a car with tint that is too dark and violates NY's rules against such cosmetics. Cops often look for little things such as a broken tail light and expired registration in order to issue a ticket to the poor unsuspecting driver. Be proactive and be sure to keep your car registered, inspected and in all around tip top shape.

4. Don't give a police officer attitude if they pull you over. Again, nothing makes a cop more likely to issue a ticket than a mouthy, obnoxious driver. Simply ask the officer why they pulled you over and remain calm, cool, and collected. You still may receive a ticket, but by remaining civil, the officer is less likely to issue further penalties and fines.

5. Go with the flow of traffic. Don't insist on being the rabbit of the pack. Simply remain in check with the surrounding vehicles and all will remain status quo.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
www.lakegeorgelawyer.com

Filing in Family Court

2011-09-13T11:45:00.000-07:00

Dealing with a family court matter can be one of the most stressful experiences a person may face. More than any other court, family court involves all sorts of emotions stemming from a plethora of different angles. When faced with a family court issue such as custody, neglect or family offense, the first thing one must do is be aware that they themselves may file at any time within the applicable family court.

For those who are not familiar with the family court process, fear not. Most clerks at the family court level are very much aware that most people are filing for the first time and that their stress level may be at an all time high.

The family court clerk will provide you with the appropriate paperwork, free of charge and with the needed guidance that goes along with it. They can not give you legal advice, but in terms of what to fill out and how to go about doing so is what they are there for.

Most family court petitions provided by the clerk are fill in the blank style so don't worry if you are not up on your legalese. Once the applicable petition is filled out, someone from the court will notarize your signature and file accordingly. From there, a court date will be assigned to your case. If at any time after you file a petition and wish to seek legal counsel, one has every right to do so. The petitions filed can always be amended and modified so don't worry if something is filed in error.

Family court matters can be an emotional roller coaster. However, do not let the initial filing of papers hinder you in fighting for what you believe is in the beat interest of yourself and your children.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
www.lakegeorgelawyer.com

Making a Good Impression in Court

2011-09-02T08:43:00.000-07:00

Top 5 Ways to Make a Good Impression in Court

1. Dress for success! Make sure you wear something appropriate for the situation. I know a lot of people are the "T-Shirt and Jeans" type, but that is not the proper attire for court. One does not have to wear a 3 piece suit, however, just something neat and professional looking. A good fail safe outfit for males would be a pair of dress pants and a shirt and tie. That look never goes out of style and it is appropriate for just about any situation. For the ladies, I am less versed in women's fashion, but something conservative is most always a safe bet.

2. Body language is key when appearing in court. Do not give the judge attitude and do not act disrespectful toward the other parties. Nothing turns a judge off more when parties start arguing with each other in open court. When addressing the judge, always end your statement with "Your Honor" or "Judge." When asked a question, answer by stating yes or no. Do not say "Yeah," Uh Huh," and other similar slang phrases.

3. Be prepared. When appearing for court, regardless of what type of matter it is, always do your homework and be ready to address the issues head on. Looking as if you are hearing the case for the first time will not only annoy the judge, but will also show the other party that you are ill prepared and not taking things seriously.

4. Show the court staff respect. Most courts have officers that assist with the overall procedure of the court. When entering the court building, litigants are often required to go through a metal detector for security purposes. Even the lawyers must abide by this. When doing so, do not roll your eyes at the officer and give him or her a hard time. Time and time again I see people arguing with the court officers because they do not want to be bothered with taking everything out of their pockets and taking off their belts, etc. By acting this way, it gives off a negative impression and will translate in the court room because you are now in a foul mood. Plus, the court officers will not show you any leeway as it pertains to who gets to see the judge first and so on. It pays to be nice to everybody, and that includes the court officers and clerks who are there to simply to their job and nothing more.

5. Communication. By communicating with the other party in a positive and productive manner, the judge will appreciate your decorum. Most court cases can be settled more efficiently if the opposing parties simply have a meeting of the minds prior to court and then put their settlement on the record. Regardless of the their differences, if parties keep the lines of communication open during negotiations, it will make way for an easier way to resolve the issues when appearing before the judge. Judges hate to have to sort through the minutia during a hearing. If the parties thoroughly communicate with the another, the judge will be able to better assess what is at the heart of the matter and will be able to adjudicate more efficiently.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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www.lakegeorgelawyer.com

Coping With a Criminal Charge

2011-08-26T08:40:00.000-07:00

When faced with a criminal charge, whether it be a felony or misdemeanor, there are numerous things one should take into account before dealing with the issue head on.

First, one should know their basic rights. Everyone is familiar in some fashion with the "Miranda Rights, " which begin with "You have the right to remain silent." This statement is an extremely important one in that it gives the accused the right to not say anything that would potentially incriminate themselves in the future. More often than not, defendants are convicted not on the actual accused crime itself, but on the criminal procedure that follows thereafter. All sorts of verbose technicalities ensue during a criminal investigation and if one were to slip and say the wrong thing out of context, that statement can and will be taken at face value. This is why remaining silent during an arrest is key.

Once an official criminal charge is imposed, one of the first things a defendant should do is seek proper counsel. This may be a no brainer, but it is important that one chooses an attorney that regularly handles criminal cases. As already mentioned, criminal law and procedure has all sorts of twists and turns and only an experienced criminal defense attorney will adequately be ready for what rocky roads may lie ahead.

After a suitable attorney is chosen, be sure that the lines of communication are very open. Like with most things in life, there can be little productivity without good communication. Often legalese can get quite overwhelming, not to mention the fact that most people, including some lawyers, don't even understand half the words they are saying. It is important to ask the attorney pin point questions about your case and to reiterate any issues that are not overtly clear. One should avoid simply nodding their head in agreement to whatever the lawyer says, when in reality they have no clue as to what is going on. This approach is understandable since most people when facing a criminal charge are scared, confused and simply want to get things over with as quickly as possible. While understandable, this approach can be quite costly in terms of what charges are implemented on your behalf. Again, keep the lines of commutation between yourself and counsel open so that one does not become a victim of criminal procedure. If you are not happy with the plea offer the prosecution has put on the table, strongly communicate this to your attorney so that he/she can act accordingly. The accused always has a right to trial, so if one believes that justice is not being served, they have that option.

Ultimately when faced with a criminal charge, the key is to take an initial step back and assess your current predicament. As the saying goes, the best offense is a good defense, so take your time in planning a course of action. A good friend of mine once told me that it's always best to measure twice and cut once. Enough said.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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www.lakegeorgelawyer.com

Myths about Lawyers in the Media

2011-08-10T12:03:00.000-07:00

When it comes to viewing lawyers in the media, most people have a stereotypical view. After having been exposed to TV dramas such as Law & Order, The Practice, Boston Legal, etc. the average citizen has several preconceived ideas about what a typical lawyer does while engaged in battle among the confines of court. Some may think a good attorney has to bang his or her fist in plain sight in order to show that they are adequately advocating for their client. People often think that a good lawyer always has an answer in any given situation and must always come up with some sort of wise and profound retort. Unfortunately, however, this is simply not reality and certain myths about lawyers in the media should be looked at more closely.

As the media often does, the role of the lawyer has been sensationalized just a tad over the last several decades. Don't get me wrong, most lawyers are extremely passionate when it comes to their craft. A good lawyer will always zealously advocate for their clients, but ways in which this advocacy have been depicted on the news and television unfortunately have been mistaken for the norm.

More often than not, most of the "magic" attorneys do is done behind closed doors. The public, and most times the actual client is not even privy to initial negotiations and tactics. Lawyers will usually contact opposing counsel well before they are set to appear in court and discuss matters at length, with the intention to come to some sort of mutual agreement or settlement. Once these "unsensational" negotiations take place, more often than not, matters are pretty much set and when the parties do appear in court, the "drama" is kept to a bare minimum.

From the perspective of a person who does not deal in legal matters on regular basis and gets most of their legal education form Law & Order, it would appear on its face that one attorney, or both, as it may, did not really zealously advocate for their client in a passionate manner. People often think that if an attorney doesn't say more than five words in front of a judge isn't properly doing his or her job effectively. Little do they know, however, that this "unengaged" attorney may have already put in countless hours behind the scenes negotiating with the District Attorney. Also, lawyers often "burn the midnight oil" while drafting vital court documents such as petitions, memorandums, and other pertinent motions. Filming a lawyer drafting a memorandum of law at his or her computer or doing legal research for numerous hours typically does not make for riveting television so it is usually left out.

TV also usually depicts opposing counsel battling each other as if they were Roman Gladiators set to fight to the death. Again, in reality, most lawyers have to work with each other time and time again and bridges are not always burnt on the first go around. A good lawyer does not take litigation personally when it comes to the advocacy from opposing counsel. Therefore they do not verbally bash their opponent, but rather rely on the issues and facts presented and go from there. They do not jump up on their soap box and preach sermon after sermon, day after day. In fact, if one were to go down to their local town, city, or county court and watch what goes on during a typical day, I would bet the observer would be a little bored and disillusioned with the whole process.

While watching legal dramas are often fun and interesting to watch, one should keep in mind that just like their favorite episode of Seinfeld, it is all done in the realm of fiction and in no way should be construed as "real world" lawyering. Where else but on television could Captain James T. Kirk be taken seriously as an attorney? William Shatner's character Denny Crane on Boston Legal was a silver tongue in the court room, but the majority of his actions were as real as a Klingon.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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www.lakegeorgelawyer.com

Don't Ignore a Seatbelt Ticket

2011-07-13T20:38:00.000-07:00

Most everyone knows the slogan "click it or ticket." Getting a ticket for not wearing a seatbelt may seem like a minor infraction but could in fact come back to haunt you down the road, no pun intended.

In New York, a seatbelt infraction does not carry any points but does impose a fine. It also appears on the guilty party's driving record. By appearing on a driver's record, it can have an adverse effect when attempting to plea to a reduced charge in the future to a speeding violation or failure to obey a traffic device. These infractions carry points as well as fines.

Now here is where ignoring a seat belt ticket can come back to bite you. Let's say one is ticketed for not wearing their seatbelt and instead of attempting to show up for court and requesting a reduction in the charges, the individual simply mails in the ticket pleading guilty and pays the fine accordingly. This is all well and good, but now the seatbelt violation will show up on a driver's abstract, which is a history of that person's driving record. If the individual gets a speeding ticket in the future and attempts to plea to a reduction, such as parking on pavement, which carries no points, the ADA or local prosecutor will take a look at the abstract, see the seatbelt violation and assume that they were pulled over previously for speeding and the police officer gave them a break and issued a ticket for a seatbelt violation instead of the speed. Now keep in mind, this scenario does not always occur and in theory, prosecutors are never to "assume" anything. However, the reality is that a seatbelt violation on a driver's abstract often sends up a red flag, even though on its face it is not as serious of a violation as a speed or other type of moving violation.

When faced with a seatbelt charge, a smart thing to do is plead not guilty and request for a reduction to a charge of parking on pavement. As stated earlier, this is a non moving infraction that carries no points to one's license. More importantly, a parking on pavement charge doesn't appear on a driver's abstract. The guilty party simply pays the fine and it is never seen again. The extra time and effort will truly pay off down the road, pun now intended, if encountered with more severe charges.

For more information or if anyone has any questions or comments, feel free to visit us at www.carbonelawyer.com.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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www.lakegeorgelawyer.com

Managing Marital Property

2011-06-29T18:45:00.000-07:00

When getting a divorce, one of the first items of business that comes up is "who gets what" in terms of martial assets. As with most issues in the wonderful world of law, it all depends.

Typically speaking, when a couple goes through a divorce, the assets, known as marital property, get divided as evenly as possible. The issue then becomes what assets are considered "marital."

A marital asset is any piece of property, including, real, personal or monetary that was acquired and cultivated throughout the course of the marriage. Examples include the marital home, vehicles, bank accounts, and other personal property such as furniture, electronics, etc.

When entering a divorce, the parties may elect to divide up the marital assets any way they so choose. If one spouse elects to let the other have everything, including the kitchen sink, they may do so. If, however, one spouse wants the other to get nothing based on allegations that one spouse earned most, if not all the money in the relationship or if they simply feel that the other spouse does not deserve a fair share of the marital assets, this is where equitable distribution comes into play. Simply because one spouse was the primary bread winner and also put forth the lion's share of effort in terms of making said assets prosper does not cut the other spouse out of his or her fair share of the martial property.

If a coupe cannot come to terms on how to adequately sort out the distribution of martial assets, the logical step would be meditation. If mediation does not lead to an agreeable solution, the parties then can file for divorce in New York Supreme Court. Here, the parties will contest their issues in front of a judge who will ultimately decide on who gets what through the trial process.

For additional articles and information on matrimonial matters, please visit www.carbonelawyer.com

Martin A. Carbone, Esq., Attorney at Law, Carbone & Carbone LLP

Taking a Byte out of Apple

2011-06-08T14:44:00.000-07:00

With all the heavy tech talk as of late concerning the third version of the already iconic iPad along with a 5th generation iPhone, it again looks like Apple has their work cut out for themselves, both creatively and legally.

As it stands now, electronic giant Samsung is in the midst of suing Apple over alleged patent infringement. Apple in turn threatens to counter sue over basically the same allegations.

As already discussed in one of my previous blogs, one cannot trademark an idea. They can only lay claim to their version, or unique interpretation of said idea. With the recent technological boom of smartphones and tablets, it would appear that all of said products share some similarities. In fact, many of Apple's products share components with other rival companies such as Sony and Samsung themselves.

When companies such as Apple and Samsung start engaging in legal battles over who stole from who first, it creates somewhat of a chilling effect among competitors. It also presents a "Who came first, the chicken or the egg" type scenario. Often times it is too hard to tell who originated what and more often than not, the true "originator" of an idea, such as the iPod, iPaD, Blackberry, Laptop PC, Atari 2600, etc. is a third party who is sadly left out in the cold.

With all the rapid innovation out there right now, the focus should be not on who thought of what first, but instead on how to perfect things and make them more universally proficient for world wide integration.

On a related note, I am still getting over the shock that the iPad I received for Christmas this past year is considered old and "obsolete." What will "they" think of next!

Martin A. Carbone, Esq., Attorney at Law, Carbone & Carbone LLP
www.carbonelawyer.com

Laws of Memorial Day

2011-05-30T07:33:00.000-07:00

1. Visiting Lake George Village is a must. While there, Around the World Mini Golf is required to be played along with a quick stop at the Pink Roof for Ice Cream.

2. Clean out the old closet to make room for summer atture. Put away the fleece and sweaters. (Although knowing the weather of the Great North East, they will be back on us in no time flat!)

3. No matter rain or shine, a camp fire is a must. Marshmellows are a definite and hot dogs are strongly suggested. (Nathans are best!)

4. Put the smartphones, ipads, and lap tops away and enjoy the outdoors. Don't worry, Angry Birds will be there when you get back.

5. Take the time to give thanks and appreciation to all the great men and women in our Armed Forces. Cheer them loud and proud!

Marty Carbone, Carbone & Carbone LLP, Attorneys at Law, www.carbonelawyer.com

New York's No Fault Divorce

2011-05-12T11:10:00.000-07:00

Recently NY passed new legislation within the domestic relation law that now allows couples to divorce by reason of "no fault." This is similar to divorce by way of irreconcilable differences, which is a divorce option in other states. What this means is that neither party is holding the other responsible for the pending dissolution if the marriage.

Prior to this recent legislation, the quickest way to divorce by way of mutual agreement without holding either party at fault was to file a separation agreement and then live separate and apart for at least one year. After such time, one of the parties would file for divorce and a judgment was typically granted, as the separation agreement would merge or convert into a final divorce decree.

With New York's no fault divorce, the parties relationship must be irreparably harmed and the couple must live separate and apart for at least six month prior to filing for divorce. On its face, this option sounds quick, easy and painless but like virtually everything in life, it's not always that simple.

To be granted a divorce under No Fault, the parties must have all of their ducks in a row pertaining to marital support, child support, and division of marital assets. If there is a dispute with regard to any of these issues, the parties will need to either come to terms prior to filing for divorce under no fault or must otherwise file for divorce under a different statue and litigate their outstanding issues in Supreme Court accordingly.

So before one runs right out and files for divorce under this new legislation, make sure all outstanding issues are taken care of. If not, claiming No Fault will be Your Fault.

For more information on this topic and similar legal matters, such as matrimonial matters and family court issues, please visit www.carbonelawyer.com.

Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law

Providing Legal Protection for your Business

2011-04-15T08:49:00.000-07:00

Entering into any business venture always has some sort of risk. There are no guarantees that the business will become successful. More often than not, start up companies fall flat before they even get out of the starting gate.

To protect ones personal and professional assets when entering Into such a venture, one of the easiest and smartest things to do is to form some form of corporate shield, namely an LLC.

An LLC is a Limited Liability Company that affords legal protection to a business as allows said business to be viewed as an entity and not as a living breathing person. With said legal entity status comes legal protection and allows the business to stand out on it's own without holding the members of the entity personally liable for any financial issues and concerns. In other words, if the company goes "belly up," under an LLC the members will not have to sell their homes and put their prized baseball collection on eBay.

To form a Limited Liability Company, one needs to first file Articles of Organization with the Department of State. Once approved, the LLC needs to be published in 2 local newspapers for a set period of time. After the required publication period ends, a Certificate of Publication is filed with the Department of State and that is that. The procedure is relatively painless and well worth it.

For more information on this topic and similar legal matters, such as forming a PLLC, LLP, or PC, please visit www.carbonelawyer.com.

Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law

Social Media is No Legal Lame Duck

2011-04-10T06:30:00.000-07:00

I have touched upon this topic in the past but after some recent experience I feel it is worth going over again. In this new decade of overwhelming social media, with forums such as Facebook, MySpace and Twitter, people now open themselves up to more liability in what they say. No more does testimony in court boil down to "he said, she said."

Now with Facebook, practically taking the world by storm overnight, said communication is permanently embedded and one must live with the consequences once they make their proclamations. Judges and attorneys now refer to social media communications without much scrutiny to its authenticity and validity. Most jurisdictions are taking the communication at face value and things progress from there. No more is Facebook and similar technology considered to be "kids stuff." Mark Zuckerberg, the creator of Facebook said he wanted to change the world and he did. What is impressive to me is that he went so far as to infiltrate and change the legal system to an extent which has always been historically conservative with regard to change.

In recent news, comedian Gilbert Gottfried made some remarks on his Twitter page that made light of the latest tsunami in Japan. Gilbert was subsequently fired from his job as spokesperson for insurance giant Aflac. For those who are unaware, Gottfried provided the voice of the duck which appeared on virtually all of Aflac's commercials. It is up for debate as to whether Gilbert should of been fired for his Twitter comments alone, but what is not up for debate is the fact that communication on Social Media outlets do not go unnoticed.

So if you are a frequent user of Facebook, MySpace, Twitter, and the like, make sure what you say is something you are comfortable with the world knowing. If not, comments made in haste can come back to legally haunt you. Just ask Gilbert "Got-fired."

For more on technology within litigation and other similar legal topics, feel free to visit www.carbonelawyer.com.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

Trials and Tribulations

2011-04-06T16:03:00.000-07:00

In the legal world, the trial portion of procedure is looked upon as the final frontier. It is the culmination of pleadings, negotiations, conferences, etc. If a case goes to trial, it basically means that the parties could not reach a settlement and therefore they are putting all of their faith and trust in the presiding judge.

Going to trial, whether it be a civil or criminal matter always carries some risks. Unlike a settlement, the parties face an unknown outcome and are essentially rolling the dice, so to speak. A trial is often look at as an all or nothing type of thing. A person can walk out of the court room as happy as a clam or they can be dragged out kicking and screaming.

For this very reason it is extremely important for litigants to enter into negotiations with an open mind and decent attitude. When it comes to reaching a settlement, the parties have, at the very least, some sort of control over their own destiny. This in part will help guarantee them with an outcome they can live with. One or more parties may not get exactly what they were looking for but with a reasonable settlement, they at least have the opportunity to come to some sort of acceptable compromise.

More often than not, however, emotions get the better of us and we as a whole are not quick to compromise when it comes to issues we believe in and feel strongly about. When this occurs, settlement negotiations typically are thrown out the window and it's off to trial, full steam ahead. This is all well and good, but again, going to trial can be risky business and should only be conducted on legal merit and not on haste and raw emotion.

So the next time you or someone you care about is faced with a legal dilemma, make sure heads remain as cool as possible. In doing so, you will have a greater chance to prevail and prosper.

For more on trial procedure and other similar legal topics, feel free to visit www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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www.lakegeorgelawyer.com

Howard Stern Sues Sirius

2011-03-24T08:23:00.000-07:00

Love him or hate him, Howard Stern may have a legitimate lawsuit on his hands. After recently signing a new 5 year contract worth approximately $500 million, the "King of All Media" is gearing up to sue his current employer. While the pending suit gets under way, Stern continues to work for Sirius XM satellite radio, broadcasting his morning radio show every Monday through Thursday.

Not much is currently known regarding the particulars of the law suit at this time but as with most things, it all boils down to the mighty dollar. When Stern signed his initial deal with Sirius back in October 2004, one of the perks of said deal was that Stern was promised certain stock options if the company met certain quotas in terms of subscribers. It has been reported that the quotas were more than met, having exceeded estimated subscriptions by the millions.

Reports claim that Sirius has paid Stern "enough money already" and are under no obligation to pay him any more. The claim stems from Sirius XM not paying out on their agreement to award Howard his stock options. Howard Stern, of course feels as though he has earned said compensation and should get what was initially agreed upon based on the company meeting and ultimately exceeding its business expectations.

The legal dilemma that is raised in all this turmoil is whether Howard and Sirius have a conflict of interest. Certainly the pending law suit makes for an awkward and uncomfortable work environment to say the least. This situation somewhat parallel to the current media frenzy involving Charlie Sheen, producer Chuck Lorre and CBS. Unlike the latter, Howard Stern is continuing to work while said legal issues are dealt with and at the moment is acting extremely professional and keeping things tight lipped.

Time will only tell, but one thing is certain: Howard Stern is Sirius.

For more on Charlie Sheen's legal woes and other similar legal topics, feel free to visit www.carbonelawyer.com

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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http://www.lakegeorgelawyer.com/

How to Overcome a DWI or DUI Charge

2011-03-23T10:23:00.000-07:00

DWI and DUI charges can hurt your driving record, your pockets, your career and even get you jail time. If you have been recently charged for DUI or DWI, it is not something to take lightly, but it also does not mean the case is closed before you step into the courtroom.

By hiring a decent defense attorney, one who knows what the DUI and DWI laws actually are in different areas, there are many ways that your case can go in your favor and can even get dismissed all together.

There are three categories that arresting officers and district attorneys can fall short in for DUI and DWI cases. Police Officer Procedures, Court Technicalities, and Testing Issues are all avenues that can help you win your case.

Here is a list of topics that may get you out of DWI or DUI hot water:

IMPROPER PROCEDURES BY POLICE OFFICERS

FAILURE TO OFFER MIRANDA WARNING – When the police have failed to properly issue Miranda Warnings, prosecutors cannot use statements from the defendant in custody for a DWI or DUI.

ILLEGAL STOP OF DRIVER – you can’t be pulled over unless your officer has reasonable to believe that a law has been violated.

ILLEGAL SEARCHING – Any evidence illegally obtained from improper searching is not admissible in court. Police cannot search a suspect or their automobile for a minor traffic offense without a driver’s consent or probable cause.

CONDUCT OBSERVATION PERIOD FAILURE – Most courts require that a driver be observed continuously for a minimum period of 15 minutes or more, before a breath test can be given.
WEAVING WITHIN THE LANES IS LEGAL – moving a little bit without crossing any lines is not breaking any law. A vehicle can’t be stopped for that reason.

ANONYMOUS LEAD OF DWI – when an anonymous citizen reported that the driver could be drunk, this is not reason enough to be pulled over in the first place.

POST-DRIVING ALCOHOL IMBIBING – The officer must prove the blood or breath alcohol at the time of driving and of the arrest. Consumption of alcohol after driving would increase results and were not the true levels when the person was operating the vehicle.

Police Procedure has to be followed, or the case could be dismissed in its entirety.

COURT ISSUES

FAILURE TO PROVE DUI – A defendant’s admission to driving does not prove a charge of DUI.
NO SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.

INDEPENDENT WITNESSES ACCOUNTS – In many cases, independent witnesses can have the charges dropped. Witnesses to accidents, bartenders who served the suspect, and even hospital personnel provide testimonies that prove the defendant’s sobriety in court.

PRIOR DISCIPLINARY RECORD OF THE OFFICER – To attack the officer’s credibility for a suspect’s case, a police officer’s previous disciplinary record can be used in hopes of dismissal.

MEDICAL & HEALTH PROBLEM FACTORS – Many factors can affect the outcome of intoxication test results. Medical problems having to do with eyes, arms, neck, back and legs often throw off the results and validity of many field sobriety tests.

BAD WEATHER – Weather reports that show evidence of low visibility, high winds, and other various extreme conditions are often admissible to explain poor driving.

LACK OF PROBABLE CAUSE – Sometimes the arrest itself is in question. The suspension of a license can be reversed, when a police officer doesn’t have specific facts to support any arrest for DWI or DUI.

INCONSISTENT POLICE STATEMENTS – Statement made by police both verbally and in written reports, may be used to attack officer credibility in a particular case.

MISLEADING POLICE STATEMENTS – Confusing or exaggerated arresting officer statements regarding the consequences of taking or refusing a blood, breath, or urine test, can have the case thrown out of court.

INTERFERING SUBSTANCES – Many items such as mouth wash, asthma spray, cough drops, paints and even fingernail polish contain forms of alcohol. These artificial means of alcohol can hinder proper blood level results and render the test invalid.

STATUTES OF LIMITATIONS – A DWI or DUI misdemeanor charge must be filed within a certain period of time, or the charges can be dismissed.

DWI ON PERSONAL PRIVATE PROPERTY – Often, the court will say that a person who has not driven the car onto a public street, road or highway cannot be charged for drunk driving.

DISCLOSURE OF EXPERT FAILURE – If prosecutor cannot disclose the identity of the state expert, this can be a cause for dismissal.

DUI and DWI TESTING ISSUES

USE OF LACTATE RINGERS – If hospital staff use lactate ringers during the treatment of a suspect, the hospital blood serum results will report elevated readings that are invalid.

TEST EXPERT WITNESSES – Are often required to inspect the validity of blood tests, breath tests, and also field sobriety tests.

FAILURE TO RECORD CERTIFICATION TESTS – the failure to provide the value of the simulator solution used to test validity in breath machines can cause the breath test results to be invalid.

FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. People with outstanding injuries, weight conditions, medical conditions, and those who are 65 years or older cannot be validly judged by these tests.

NON-STANDARDIZED FIELD TESTS ARE NOT LEGAL – touching your finger to your nose, or saying the alphabet, or counting backwards, all fail as valid sobriety tests.

BREATH TESTING IS INACCURATE –experts believe that one breath test alone is not valid. Breath testing is includes a variance as much s +/- 12.5%, non-specificity for ethanol, etc.

INADMISSIBLE PORTABLE BREATH TESTS – Many states and counties prohibit the use of portable breath testing. They do not allow such results to be used as evidence in DUI trials.

IMPROPERLY ADMINISTERED PORTABLE BREATH TEST– Typically, two tests need to be administered to consider the results evidential in nature. The manufacturers of many different portable breath testing devices require this for accuracy in testing.

BLOOD TEST IS INACCURATE – Police-issued blood tests often fail to follow prescribed rules by labs for proper testing, proper analysis, and/or proper recommended guidelines.

HOSPITAL BLOOD TEST IS WRONG – Sometimes a hospital can be wrong. Hospital blood tests can be wrong from time to time and overestimate a person’s actual blood alcohol levels by as much as 25%. Injured patients also throw off the blood results, due to blood loss and other chemical factors.

UNLICENSED BREATH TEST OPERATOR – Many states require the operator of the breath test to hold a valid operator’s license. If they do not, the breath test result can be deemed inadmissible in court.

BREATHALYZER MALFUNCTION – Most state rules declare that malfunction or repair of the instrument within a certain period of time can allow for the results of the suspect’s test to be presumed invalid.

BREATH TEST LICENSE EXPIRED – Most states require an unexpired operator’s license, or the breath test result is invalid and deemed inadmissible in court.

BREATHALYZER NOT APPROVED – The testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or a court can find the results of the said instrument to be inadmissible.

IMPROPERLY ADMINISTERED FIELD SOBRIETY TEST – Field tests that are improperly administered are not valid evidence of intoxication, according to statements made by the National Highway and Traffic Safety Administration.

VIDEO ISSUES

FAILURES TO PRODUCE DISPATCH VIDEOS – Many counties record everything as a standard today. Failure to produce video proof upon request can sometimes cause all evidence to be suppressed in many courtrooms.

BOOKING ROOM VIDEO PROOF – Many police videotape drivers at the station, where their speech and balance appear, in spite of police testimony to the court.

IN-SQUAD VIDEO PROOF – Quite often, driver performance on field tests is being recorded and these tapes sometimes contradict police testimony.

For additional blogs on this topic and other similar legal issues, feel free to visit http://www.carbonelawyer.com/

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

www.facebook.com/carbonelawgroup
http://twitter.com/carbonelaw1
http://www.lakegeorgelawyer.com/

Getting Tickets for Talking and Texting

2011-03-14T12:19:00.000-07:00

Recently New York State passed new legislation within the vehicle and traffic law that makes talking on a cell phone while driving a 2 point penalty on one's license. Previously in 2001, NY passed a law making said action a violation and with it came a fine of up to $100. This made headlines because at the time, NY was the first state to finally crack down and impose such a penalty.

Now, approximately 10 years later, NY has amended the law to include a 2 point penalty along with a fine. No longer is getting a ticket for talking on your latest and greatest cell phone a mere financial nuisance. Now, with the implementation of the points penalty, such behavior can have an adverse effect on ones insurance premiums along with their overall driving record.

Another "hot topic" in vehicle traffic law is texting while driving. This action seems to be more prevalent in this new age of the smart phone boom. However, in November of 2009, NY passed a law making texting while driving a 2 point penalty along with a fine of up to $150. This little known fact does not seem to prevent the masses from doing so because more and more text related accidents are being reported, as odd as that sounds.

Personally, I see people chatting away on their phones while driving all the time and I am amazed due to the fact that it has been over 10 years since the law against doing so was passed.

Bottom line, avoid talking and texting while driving. Not only will you open yourself up to all sorts of legal trouble, but more importantly, one imposes great physical risk to themselves and others when doing so.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

http://www.carbonelawyer.com/
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Winning for Charlie Sheen?

2011-03-03T06:42:00.000-08:00

After appearances on the Today Show and Howard Stern’s nationally syndicated radio program on Sirius Radio, Charlie Sheen’s legal team is gearing up to make even more headlines. He is about to take on CBS and Warner Brothers. Sheen says he has Tiger’s blood and Adonis DNA. What does this mean? We don’t know… But we think it means he is not going to go out without a fight and CBS is going to be looking at a legal battle.

Late last week, CBS and Warner Bros. announced that they were canceling the highly rated TV show, due to Charlie Sheen’s condition, and behavior associated with negative statements about the show’s producer Chuck Lorre. Whether this cancellation violates Sheen’s agreement with the said companies, remains to be seen.

The actor’s lawyers have contacted both CBS and Warner Bros. demanding that Sheen’s television contract be honored. This means for that the highest paid actor to date at 2 million dollars an episode would be compensated for the eight canceled episodes of Two and a Half Men.

Sheen is not playing around. He already pictures himself, “Winning,” and he has the means to do so exponentially. The Two And A Half Men star has enlisted one of the top Hollywood attorneys to represent him in this legal battle. Entertainment Lawyer Marty Singer contacted the network and production company on Monday, Feb 28, 2011, to inform them that they were in deed violating their interpretation of Sheen’s contract by canceling the remaining episodes. This means a severance pay of 16 million dollars in payment is due in full, not to mention residuals and other perks.

What are the legal ramifications? Does the contract really allow firing when you say something unsavory about the boss? Singer states that, “This action is outrageous and in direct violation of our client’s legal rights.” Charlie Sheen’s lawyer is arguing that the episodes were in deed canceled not because of Sheen’s condition but rather as a vindictive retaliation from the producer for comments made off the record about him. Singer states that this is going to be a very expensive way to pamper Lorre, so he can save face.

Sheen’s lawyer states that the companies involved will fully be, “accountable for the compensation owed on his contract and to hold Warner Bros. and CBS fully accountable for all of the consequences of their actions.”

Is “winning” in Sheen’s future? We will have to wait and see.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Snowball Effect

2011-02-26T18:00:00.000-08:00

Much like the recent abundance of snowfall, things in life can pile up pretty fast. Sometimes things come upon us so fast, it can be quite overwhelming on the mind, body, and soul.

In the realm of the legal world, things can definitely "snowball" if one does not take proper precautions. Take traffic law for example. More often than not, when someone gets what is at the time, a minor traffic infraction, they will put it off to the last minute in dealing with it and the matter soon escalates into something more serious. By ignoring something as minor and routine as a simple speeding ticket can transform into a misdemeanor in the blink of an eye. If one were to get pulled over again, having not dealt with the speeding ticket prior,
they can be charged with an "AUO" which is aggravated unlicensed operation of a vehicle, which is a misdemeanor. To lawfully take care of this situation will now cost you more time and money because it is a much greater offence. If, however, one didn't wait for things to "snowball," the issue could have been dealt with in a much easier and less stressful manner.

Things often snowball in the realm of estate planning as well. Here, people often do not take the time to plan for their future and in doing so, they leave themselves and loved ones in a difficult situation if and when things go wrong. For example, a lot of people put off drafting a Will because they feel they are either too young or that it is too morbid of a subject breach at the present time. If tragedy were to strike, however, a whole "blizzard" of negative repercussions could manifest at an alarming rate. One's personal assets could divest to someone other than those in which they were intended. Also, guardianship of children could pass to an individual that was not the first choice of the now deceased or incapacitated parent.

Another area where people become overwhelmed by waiting until the 11th hour is within the wonder world of tax and finances. Waiting until April 14 to start preparing one's taxes usually brings about catastrophic results, both mentally and financially.

By being proactive and thinking round circle, one will only benefit themselves not only in litigation but in life as a whole. I know it has been hard to avoid the snow this miserable winter, but with regard to your legal trials and tribulations, stay out of the cold and avoid the snowball effect.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Laws of Valentine's Day

2011-02-14T10:01:00.000-08:00

1. Russell Stover heart-shaped boxes of chocolate must be distributed to one's significant other each and every year.

2. Buying your wife a new set of snow tires and calling them her Valentine's Day gift is strictly prohibited.

3. Handing one's wife a wad of cash at the end of the day and passing it off as a gift will buy you nothing but grief.

4. Avoid buying flowers from the super market, as they often expire before you reach your car in the parking lot.

5. Do not try to convince your significant other that celebrating Valentine's Day on February 15 is just as good, knowing full well that all candy is now 50 percent off.

6. If you have been married over 5 years, don't bother with stuffed animals.

7. If you live with your significant other, there is no reason to post "Happy Valentines Day" on their Facebook wall. (Unless, of course, you are in the dog house for some other relationship infraction.)

8. If married for over 10 years, a Valentine's Day "high five" is a perfectly acceptable form of affection.

9. If you are a newlywed, make sure that the gifts for your spouse and one's mother do not get mixed up.

10. When all else fails, one can never go wrong with Reese's Peanut Butter Cups.

Marty Carbone, Carbone & Carbone LLP, Attorneys at Law

www.carbonelawyer.com

Chasing Charlie Sheen

2011-02-06T12:56:00.000-08:00

What can be said about Charlie Sheen that hasn't already been dissected in the press as of late? The man seemingly has nine lives and by the looks of things he may be closing in on number 8.

In terms of a legal standpoint, Martin Sheen's baby boy has caused quite a stir. As of this writing, his hit CBS show, Two and a Half Men has been shut down and put on indefinite hiatus. This is due to Sheen's current stint in rehab and the show's future is uncertain at this point.

One would think, on a technical standpoint, Sheen must be violating all sorts of terms within his CBS contract. Not knowing the specific terms and particulars, it can't be said for certain that he is, but the mere fact that he is not working due to his own faulty actions would suggest breach.

While Two and a Half men is on unplanned hiatus, there are countless workers that are out of a job, such as the shows writers, film crew, cameramen, etc. This is due to the "questionable" actions of one man. If this situation were to happen in the "real world," said individual would be sued by not only his employer, but also by those individuals in which are negatively affected by said breaching actions.

Again, technically speaking, I would bet my bottom dollar that CBS has every right to fire Charlie Sheen for his latest bout of indiscretions, but they won't. His fellow cast and crew could no doubt bring a legal cause of action against Mr. Sheen, but again, they won't. The reason they won't is sad but simple. It all comes down to money. Two and a Half Men brings in an insane amount of revenue for not only the CBS network, but also in syndication, which is where the real money is at. Just ask Jerry Seinfeld and Larry David.

If CBS were to take any sort of legal action against ol' Charlie, they would no doubt have standing, but in doing so, they would be shooting themselves in the foot.

So although it may seem as if Charlie Sheen has 9 lives when it comes to show business, his career, much like his character in the 1980's classic film Red Dawn, would have died had it not been for the surprise success of Two and a Half Men. Had it not been for this show, I would have bet all the money on Wall Street that the only recent role offered to Charlie Sheen would have been on Celebrity Rehab.

Of course, as the great Dennis Miller would say, That's just my opinion. I could be wrong.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Probate Process

2011-01-30T14:57:00.000-08:00

People tend to not like dealing with dreary matters such as preparing for the death of themselves or a loved one. While it is understandable to avoid such topics, it is in one's best interest to take a proactive approach in dealing with their future demise.

The best way to ensure one's estate is handled properly is to make out and publish a will. However, people often put off doing so and then they suddenly pass away, leaving their loved ones "holding the bag." When a person dies without a will, they are said to have died "intestate" and their estate is subject to probate. Unlike when a will is in place, the estate automatically gets divided up among the next of kin, subject to any outstanding creditors. An administrator must be named in order to facilitate the probate process. The administrator is typically a family member of the deceased. When there are multiple family members that are eligible to receive a portion of the estate, such as a group of siblings, one of said siblings is typically elected among the others to act as administrator. To be named as such, letters of administration must be served upon members of the immediate family and need to be signed off on, allowing the named administrator to proceed accordingly. If there is a dispute within the estate, this is where a "stink" is to be made and then the fun of litigation begins within the family as to who is to get what and how much.

Once an agreed upon administrator is set, that person takes the lead in getting all the assets in order, including bank accounts, real and personal property such as houses, land, cars, baseball card collections, etc. Once things are more or less accounted for, time is needed for creditors to make any and all claims they have against said estate. Claims may include credit card debt, outstanding mortgage and car loans, etc. Typically creditors are given 7 months or so to lay claim. Some states and jurisdictions may vary, however. Once creditors are satisfied, the remainder of the estate gets administered to the next of kin, in equal shares. If the bulk of an estate is in real property, such as a house or land, said property would need to be either sold with proceeds going to the family in equal shares, or one or more family members can keep it and "buy out" the others using a fair market value.

The most practical thing to do when a loved one dies intestate (without a will) is to seek advise from an attorney who regularly practices in this area of law. They will guide you through the process and will absolve a boat load of stress from your shoulders. Typically, an attorney's compensation is a percentage of the overall value of the estate. Between 4 and 5 percent is the norm, but again, it differs among states and jurisdictions. Since an attorney receives a percentage of the estate as payment, the administrator usually does not have to worry about coming up with a huge amount of money up front to pay for legal services. Most probate attorneys will require some sort of initial retainer, with the understanding that they will be fully compensated through the estate in the end, after matters are settled.

As stated, being left with the responsibilities of a loved one's affairs after death is unquestionably a stressful and emotionally compromising ordeal. When faced with this situation, remember to take things step by step, one day at a time. If you start feeling overwhelmed, seek guidance and assistance from an experienced attorney who is familiar with the probate process.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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What's the Big Idea?

2011-01-22T08:40:00.000-08:00

When it comes to legally protecting one's ideas with regard to business, things often get a little hairy.

As mentioned in one of my prior blogs, a person cannot technically legally protect their original idea by way of trademark or other means. Instead, they can only lay legal claim to their version of said idea. Imagine, if you will, if the inventor of the wheel made it legally prohibited for another person to create and manufacture a similar circular object.

Once again, I'd like to revisit the topic of Facebook and the recent film, The Social Network. In The Social Network, the creator of Facebook, Mark Zuckerberg was sued by two fellow Harvard students, the Winklevoss twins, who claimed that the basis for Facebook stemmed from their idea, which they in turn shared with Zuckerberg. They shared said idea with an alleged oral contract and understanding that Zuckerberg would use his vast computer skills to help build and cultivate a social networking site. To their chagrin, however, Zuckerberg allegedly took the basis of their idea and created his own version of a social networking site, which ultimately became Facebook. The Winklevoss twins then sued Zuckerberg a few years later and received a reported $65 million settlement.

From a legal standpoint, most experts would say that Zuckerberg didn't break any intellectual property laws. He may not have been very honorable in dealing with his fellow Harvard entrepreneurs, but from a technical standpoint, he arguably broke no laws.

From a prospective juror's viewpoint, however, it may have appeared as though he blatantly stole the social networking site from the Winklevoss brothers. Intellectual property law can be quite verbose and confusing. It was allegedly feared by Zuckerberg's legal team that he would come across as an arrogant "punk" and a none the wiser jury would possibly award the prosecution a lot more money that was ultimately settled for.

It cannot be legally determined that Mark Zuckerberg stole the idea for Facebook from others because the product in which he produced was very different than what was proposed to him originally by the Winklevoss brothers. Their idea centered around a networking site for Harvard alumni, with idea of possibly expanding to other elite universities. It was more of a private "elitist" type medium. Zuckerberg, however, took their idea, stripped it down and used bits and pieces of it, from which he created "The Facebook," that was intended for a more global audience.

As said earlier, one can only lay claim to their unique version of an idea, not someone else's take or version of it. MySpace is similar to Facebook, but has specific differences. Apple computers are similar to "PC's" but have their own unique features and functions. Iconic cartoons from the 1980's such as The Transformers and Gobots had very similar qualities, yet maintained their own specific identities.

What makes a product, slogan, or entity "click" with people is an intangible quality that can't be harnessed. If somebody comes up with an idea that flops and then another person comes along and puts out their version of said idea and strikes gold, the initial "innovator" typically has no legal recourse.

Years ago, there was a man who attempted to sue Sylvester Stallone, claiming he lifted his idea for what ultimately became "Rocky IV" His lawsuit had no standing because Stallone created his own unique and specific version of an "underdog" story, using original character names, story premise, etc. If Stallone took another person's story and blindly copied it and made a movie about it, that in of itself would have grounds for an intellectual property law suit. This, however, simply was not the case and, Rocky's unblemished reputation lives on in all of our hearts.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Tech Integration with Litigation

2011-01-13T07:01:00.000-08:00

Just about everyone nowadays has a cell phone. More specifically, most have "smart phones" such as an iphone, Droid, or Blackberry. With these recent “can't live without” pieces of technology comes the ability to communicate in numerous forms with virtually anyone, anywhere, at any time. Because of this recent technological trend, people are more prone to open themselves up to a greater degree of liability as it pertains to their communications. In other words, we as a society need to really watch what we say within the realm of texts, emails, and social networking sites as said communication could be held against us in a court of law.

Practically everyone, including their mothers (and grandmothers) are on Facebook. Facebook is currently the holy grail of the social networking sites and people post everything on there from how tired they are to how much they enjoy chocolate. Due to its public nature, people don't often realize that when they post their dirty laundry on other peoples "wall," said communication can be taken and interpreted out of context. When parties, such as bickering spouses enter litigation in Family Court, these prior communications can come into play and may prove to be at the detriment of the deponent. More often than not, what people post on sites such as Twitter, Facebook, and MySpace is meant to be taken in jest. However, on its face, the posts could be interpreted differently and the deponent often has an uphill battle in demonstrating the appropriate context in which it was meant to be taken.

Within the last few years, the concept of text messaging has really become popular within the world of communications, so much so that people often text one another when they are in the same room! This is another area where the information provided within the confines of a text could be drastically misleading and misinterpreted. If one goes through the right channels, a transcript of text chats can be obtained and are often submitted in court as evidence during trial. These types of transcripts do not always hold up under scrutiny, but one should be careful when posting on Facebook and similar sites in order to avoid such hassle.

So the next time you text a friend, co-worker, or family member, be sure that it is appropriate and within the boundaries of the law. Some texts can come back to haunt you. Just ask Brett Favre and Tiger Woods.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Un-Pleading Guilty to a Traffic Ticket

2011-01-08T09:04:00.000-08:00

When one gets a traffic ticket, it would appear that the easiest way to deal with it would be to simply plead guilty and mail it back to the court. More often than not, however, this type of lackadaisical attitude proves to be detrimental down the road. People often don't realize that by blindly pleading guilty to a traffic ticket, it opens them up to obtaining a high amount of points on their drivers license. Along with these points come higher fines and increased insurance rates. Also, drivers with a commercial license run the risk of having their privileges revoked much easier than the average driver.

When one pleads guilty to a traffic ticket and then suffers heavy repercussions as a result, they may attempt to have their prior pleading vacated by filing a Coram Nobis. A Coram Nobis is basically a legal "mulligan" or a "do over." It is a motion made to the court requesting that the prior guilty plea be vacated in order to potentially negotiate a plea to a reduced charge.

It is not guaranteed that by filing a Coram Nobis the prior guilty plea will be vacated. It is simply a motion, or request. It is at the judge's discretion to grant the motion. If they deny the motion, one is pretty much out of luck. However, most courts grant said motions, so long as the individual has a decent reason for the request.

Usually one would hire an attorney to draft a Coram Nobis. Once granted, the attorney would then enter into negotiations with the DA or town attorney to a reduced charge.

From a personal stand point, I completely empathize with anyone who gets a traffic ticket. Let's face it, we've all been there and when it happens, it feels like the end of the world to some of us. Truth is its not that big a deal and can easily be dealt with if one puts in the time and effort. I recommend resisting the natural impulse to simply take the path of least resistance and check off "guilty" on the ticket and hope for the best. Instead, confront the issue and take the appropriate steps in avoiding a potential disaster to your driving record.

Bottom line here is to think before pleading guilty to a traffic ticket. If you do hastily plead guilty and wish to "un-plead," make sure you present the court with a good reason for your request. Typical good reasons are based on unfamiliarity of the current traffic laws, or perhaps you are an out of state driver, again, not familiar with the traffic laws of NY.

So in closing, the best way to deal with the negative impact of a regretted guilty plea is to file a Coram Nobis. For additional information on hiring a traffic attorney, please feel free to read one of my prior blogs, "Top 5 Things to Look for in Hiring a Traffic Lawyer."

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Foreseeability Factor: The Pantera Tragedy

2011-01-01T20:33:00.000-08:00

December 8, 2004 was a very sad day in the world of music as that was the day “Dimebag” Darrell Abbott was murdered while he was literally playing guitar on stage. For those readers that are not a fan of hard rock music, Darrell Abbot was the lead guitarist for legendary heavy metal band Pantera. The band was extremely popular during the 1990’s among heavy metal aficionados and the tragedy that struck in Columbus, Ohio in 2004 remains one of rock’s most tragic deaths.

Pantera broke up in 2003 when singer Phil Anselmo had a falling out with Darrell and his brother, fellow band mate and drummer, Vinnie Paul Abbott. The split was filled with acrimony to say the least and both Anselmo and the Abbott brothers went their separate ways and formed their own respective bands.

Upon the death of Darrell Abbott, Phil Anselmo attempted to attend the funeral of his former band mate but Vinnie Paul and Darrell’s long time girlfriend Rita Haney prevented him from doing so. They harbored great resentment toward Anselmo, as they both felt it was he who was responsible for Pantera’s breakup. Vinnie Paul further held distain for Anselmo due to alleged negative comments he made toward Darrell in the press.

Rita Haney went on the record saying that Anselmo was essentially just as responsible for the murder of Abbott as the man who actually shot him on stage. She went on to claim that if Anselmo did not force the breakup of Pantera, Darrell would not have been playing the small, dismal venue on the night of his murder. At the height of Pantera’s fame, they were playing in much larger arenas with heightened security. Upon investigation of Abbott’s death, it was revealed that the gunman acted out because he was upset about Pantera’s demise and he held Darrell responsible. It was also later determined that the gunman had severe mental issues.

In response to Rita Haney’s claims, the legal issue boils down to reasonable forseeability; more specifically, was it foreseeable that Darrell Abbott would be murdered if Anselmo had not broken up the band.

While it may be factually true that had Anselmo not left Pantera, Abbott would not have formed a new band and would not have been playing in the smaller venue on the night of his murder. However, for anyone, including Rita Haney, to hold Anselmo responsible for the actions of a mentally ill murderer is not legally plausible to say the least.

To be deemed legally responsible for certain actions, whether they are criminal or tort, the issue of foreseability comes into play. If a party acts in a way where it is reasonably foreseeable that said actions would have a negative impact upon another, that party would be deemed legally culpable.

For example, if a person drinks an abundant amount of alcohol and then drives their car home, it is reasonably foreseeable that they may cause an accident and that other people may be injured or killed as a result. In this scenario, it would be justified to hold a drunk driver responsible for the harm they cause to people they hit with their car while under the influence of alcohol. The same cannot be said regarding the actions of Phil Anselmo as they pertain to his departure from the band Pantera.

While it may be true that had Anselmo not left Pantera, Abbott would not have been playing in the smaller venue on the night if his murder. It can also be assumed that the man who shot and killed him would not have done so had Pantera stayed together as a band. However, it was not reasonably foreseeable that Darrell Abbott would have been murdered by a mentally ill fan based on Anselmo’s decision to leave the band. The actions of the crazed gunman on the night of December 8, 2004 superceded anything that Phil Anselmo did with regard to his involvement in the demise of Pantera.

When it comes to legal culpability, reasonable foreseeability is the ultimate measuring stick. Often people want to point fingers and place blame where it doesn’t legally belong. Before they do, they should take a step back and ask themselves whether or not it is reasonable, under the circumstances, to hold said person responsible.

In the case of the Pantera tragedy, both Vinne Paul Abbott and Rita Haney were understandably emotional. In the heat of the moment, they immediately lashed out at Phil Anselmo. While it may be reasonable to be upset with him on a professional level, it is absolutely unreasonable and outright wrong to hold him legally responsible for the death of Darrell Abbott.

As a fan of Pantera, I hope Anselmo and Vinnie Paul make amends, but as of this writing, it doesn’t appear it is going to happen in the foreseeable future.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Christmas Laws, Rules, and Procedure

2010-12-23T06:36:00.000-08:00

1. "Emmet Otter's Jug Band Christmas" must be viewed at least 8 times prior to Christmas Day. Initial viewing is to be commenced upon putting up the Christmas tree.

2. On Christmas Eve, when enjoying a cocktail or 3, do not spout off about your boss. Uncle Hank and Cousin Randy may take you literally and do something rash.

3. The movie “A Christmas Story” should be watched in its entirety. However, one should resist temptation to stick their tongue on a flag pole. Do NOT purchase a Red Rider bb gun. You'll shoot your eye out! Also, be sure to drink your Ovaltine.

4. Non-consumption of those peanut butter cookies with the Hershey kiss in the middle is a serious offense.

5. Store bought eggnog is strictly prohibited.

6. A big screen TV is the gift that keeps on giving all year long.

7. Re-gifting is not a crime.

8. If your Secret Santa gives you a case of beer, it may be time to start planning some New Year’s resolutions.

9. Despite recent trends and policies, you will not be arrested if you utter the words “Merry Christmas.”

10. When in doubt, gift card it out.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Laws of Late Night TV

2010-12-19T09:16:00.000-08:00

By now everyone is likely familiar with the whole Tonight Show controversy surrounding Jay Leno and Conan O’Brien. In terms of a legal standpoint, there is a virtual buffet of laws that have been touched upon through the course of this recent colossal debacle.

As it was stipulated in a contract set forth by NBC back in 2004, effective June 2009, Conan O’Brien, then host of Late Night, was to take over has host of the Tonight Show, replacing long time host Jay Leno. This was an unheard of arrangement, as Leno at the time was number one in terms of ratings and NBC was promising O’Brien the Tonight Show five years in the future. To put it mildly, a lot could happen in five years, and as it turns out, a lot did.

This whole debacle raises all sorts of legal issues centering around contracts, estoppel, detrimental reliance, intellectual property rights and so on. The fact that NBC allowed for this crazy snafu to occur after the much publicized Leno/Letterman controversy absolutely boggles my mind.

On a personal level, I have a soft spot for Conan O'Brien, as his Late Night show debuted my freshman year of college. At the time, the College of St. Rose didn't have cable so I only received one station on my ancient Samsung rabbit-ears TV. That channel, of course, was NBC. I watched Conan almost nightly and I grew to be a huge fan of his.

When NBC offered him the Tonight Show in 2004 to take it over in 2009, the contract stipulated that if they didn't go through with it as planned they would have to buy him out. During this five year holding period, Conan detrimentally relied on NBC's word that he would receive the Tonight Show come 2009. By relying on NBC, he passed on other offers from rival networks such as Fox to do a show for them and receive a more lucrative payday. Since NBC arguably broke the terms of the Conan deal, they had to contractually compensate him for his detriment, which was waiting 5 years and not entering into other offers based on reliance that NBC was going to give him the "ultimate prize" which to Conan was the Tonight Show.

What it all boiled down to was simple contract law. Conan's contract did not specify what time slot his version of the Tonight Show would air, it simply guaranteed him as host of the Tonight Show itself. Other late night hosts, however, all had contracts that were time slot specific such as David Letterman, Jay Leno and even relative newcomer to late night TV, Jimmy Kimmel. Why Conan's attorneys did not put such language in the contract is a mystery.

Since NBC was not contractually obligated to put Conan on at 11:35, they proposed a new Jay Leno show at that time for a half hour and then would shift Conan to 12:05, still calling his show the Tonight Show. As the world knows by now, Conan did not accept this proposal, to put it mildly and a buyout of his contract was worked out for an estimated $45 million, 15 of which allegedly went to his staff as compensation.

Jay Leno, on the other hand, had a "golden parachute" so to speak, as his contract with NBC regarding his failed 10 pm show was virtually iron clad. If NBC chose to dump him the pay out would have been approximately 3 times as to what they had to pay Conan and unlike Conan's contract, Jay had time specific language and could have placed an injunction on NBC to keep him on the air for at least another year or so. When Conan walked away from the proposed new time slot, Jay slid back into the Tonight Show seat as if the last 7 months were a bad dream.

Conan is now on TBS, having signed a deal similar to what David Letterman did back in 1993 with CBS. Conan now owns his show and has a lot more creative freedom. He will from here on out own all his comedy bits, which in the legal field fall under the category of intellectual property. Since NBC owned his version of the Tonight Show and his version of the Late Night show, all the recurring comedy segments such as In the Year 2000/3000, Triumph the Insult Comic Dog, Conando, If they Mated, etc. are owned by NBC and he can not use them outright. Letterman had the same issue when he moved to CBS but he simply changed some of the wording around in his bits, such as changing The Top Ten List to The Late Show Top Ten, and was able to rehash most of his old material. Conan, if need be, can do the same but as of this writing I did hear through the grape vine that NBC may allow him to use his old material, but it hasn't been officially confirmed.

This whole late night controversy all boils down to two things. Contracts and money. NBC felt Conan wasn't bringing in the ratings and revenue that Leno did at 11:35 pm and Leno was bombing at his new 10 pm time slot. NBC tried to resolve the situation by tinkering with things in an attempt to make all parties happy. Often when somebody tries to make everyone happy, they wind up making everyone miserable instead. This is what happened here, as Conan felt betrayed after 17 years of loyal service, as did Jay, for his 18 years of service. NBC had, and still has, in my opinion, a ton of egg on their face, especially having gone through a similar situation in 1992. After the Letterman fall out, it was not foreseeable that something like that would happen again at any network, let alone NBC. The ultimate moral of the story is, to take a page out of Stone Cold Steve Austin's playbook, "Don't trust anybody" when it comes to contracts. Always be sure that the I's are dotted and the T's are crossed.

On a final note, Conan's new show on TBS is great and I encourage all to check it out every Monday through Thursday at 11 pm. Support Team Coco.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Dealing with DWI

2010-12-05T20:02:00.000-08:00

When charged with DWI, driving while intoxicated, there are a some key things to keep in mind. The first is cooperation. More often than not, individuals who are pulled over and asked if they have been drinking are not so quick to be honest with the police. The more cooperative you are, the less likely a threat you will impose on the officer this will ultimately be to your benefit in the long run.

When asked to submit to a breathalyzer test, some people feel that by refusing, the officer can't technically show that your blood alcohol content level was above the legal limit, which in New York state is .08 percent. However, if one refuses a breathalyzer, the officer can issue a ticket with a charge of DWI based on his or her personal and professional opinion and observation. This is why most often there are two charges of DWI on the ticket. One is based on the breathalyzer reading and the other is what the officer observed through his or her course of duty. Basically this is done in case the breathalyzer test becomes inadmissible. Think of it as the officer's "fail safe."

Once charged with DWI, most people, understandably so, are quite upset. The best thing to do is go into "cooperation mode" and seek out professional help in the form of an attorney who routinely practices in this area of law. Typically, if this is a person's first offence in terms of DWI, their attorney can enter negotiations with the District Attorney's office to reduce the charge to a DWAI, driving while ability impaired. After pleading to this reduced charge, the defendant will typically receive a 90 suspension of their driver's license. The court will immediately issue a 20 day temporary license, which will enable the defendant time to go to the DMV and apply for a conditional driver's license. This will allow one to drive to a limited amount of places of necessity, such as work, the grocery store, church, etc.

The District Attorney's office will also often require the defendant to take a number of prevention courses such as a VIP, victim impact panel and DDP, drinking and driving program. These courses are offered in every county throughout the state. A plea to DWAI is usually conditional upon completion of said programs. All of these steps can become a bit overwhelming so be sure to ask your attorney for guidance. A good DWI lawyer will take the time to slowly walk his client through all necessary steps and procedure.

Some counties in New York also require the defendant to under a drug and alcohol evaluation prior to accepting a finalized plea, or it may be a condition of the overall plea to DWAI. Again, cooperation is key. Do not try to "fight city hall" as the saying goes. The more cooperative a person is in completing the required courses, programs, and evaluations, the better off they will be in terms of a swift and sufficient resolution.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Laws of Thanksgiving

2010-11-24T21:58:00.000-08:00

1. Cranberry sauce is better served straight from the can. It’s even better when it maintains its original cylinder-like shape.

2. Do not fill up on bread, cream cheese filled celery sticks, chips & dip, or other “appetite killers” prior to the main event meal of turkey.

3. Do not ask what ingredients are in the homemade stuffing. You do not want to know.

4. It’s better to have extra mashed potatoes and not need them, than to need extra mashed potatoes and not have them.

5. If you are over the age of 25 and still at the kid’s table, it may be time to take a step back and re-evaluate a few things in life.

6. Wear comfortable pants, preferably something with an elastic waste. Leave the fashion show for Christmas Eve.

7. Avoid soda. Carbonation is not kind to one’s turkey and gravy intake.

8. Bring some sort of board game to play with the extended family. This is a fantastic alternative to being forced to watch the Detroit Lions game with Uncle Hank and Cousin Randy.

9. If guests wear out their welcome, use Black Friday as a fail safe and tell them you need to go to bed early in order to capitalize on all the “door busters.”

10. If desert choices become a bit overwhelming, go with the pumpkin pie. One usually can’t go wrong with that.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Foolishness of Frivolous Lawsuits

2010-11-14T21:12:00.000-08:00

Filing a lawsuit should never be done is haste. If parties have some sort of issue, they first and foremost should attempt to work things out amicably and rationally. However, sadly, this is not always the path in which people take in resolving their issues.

Now more than ever, people sue at the drop of a hat. If they feel wronged they often will file court papers first and ask questions later. While it is true that everyone has the right to be heard in court, they most certainly do not have a right to frivolously bring a cause of action against a person or entity when they lack proper standing to do so.

For a party to have legal standing, there must be some sort of connection between them and the other party pertaining to the harm that has been brought upon them. In other words, if the defending party has no nexus with the party setting forth the action, said action against them would be frivolous, thus lacking any legal merit.

If an attorney is retained to take part in an action that he or she knows or deems to be frivolous, they would be subjecting themselves to legal sanction and even contempt of court. These sanctions can also be levied upon the clients who initiate frivolous proceedings.

The Courts are extremely hard on litigants who bring upon frivolous lawsuits due to the fact that they clog up the court calendar and ultimately waste time and money.

To avoid filing a frivolous lawsuit, one should really take a step back from their current situation and examine all the pertinent facts. They need to assess who is at fault in their given circumstance and be sure that a proper and potential remedy can be reached by bringing a claim against that person or entity.

Understandably, emotions often get the best of us and we want immediate relief and immediate justice. Emotions run so rampant that we are quick to place blame where it should not be placed. We hold people at fault who in reality are not responsible for any wrongdoing.

This is where foreseeability comes into play. Often times, a legal connection is determined by foreseeability. If it is foreseeable that a party may be injured given the presented circumstances, then a legal cause of action may hold up. However, if no foreseeability exists, there is no legal nexus and therefore, no legitimate legal cause of action.

So before filing a lawsuit, whether it is a small claims action, personal injury, or some other civil or criminal matter, take a deep breath and mull things over. If the party that you are about to sue really has no deep-rooted connection with your current predicament, save yourself, and the court system, some time and money. Don’t be foolish and file a frivolous lawsuit.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Filing a Mechanic’s Lien

2010-11-08T14:17:00.000-08:00

A Mechanic’s Lien is a remedy in which an individual or business entity can ensure compensation when they are not paid accordingly.

A mechanic’s lien is defined as a statutory lien that secures payment for labor or materials supplied in improving, repairing, or maintaining real or personal property, such as a building, automobile, etc. A lien of this nature is also sometimes referred to as a construction lien as it pertains to labor. With respect to materials, a meterialman’s lien can be implemented. All serve the same function, which is to ensure just compensation for the service-performing party.

If, for example, a contractor performs service upon a building, such as installing a new roof, they are clearly entitled to compensation for said work. If the owner of the building or business entity does not pay the contractor their fee, the contractor, after due diligence in attempting to be paid, may file a Mechanic’s Lien against the property.

A Mechanic’s Lien by definition puts a lien on the property in question in the amount that is owed or in dispute. If the property is to be sold, the mechanic’s lien will show up in a title search and it will need to be satisfied prior to sale and/or foreclosure. At this time, the contractor will receive their rightful compensation, assuming the property is not sold/foreclosed at a loss.

A Mechanic’s Lien must be filed in the county in which the property is situated. The filing fee is approximately $5.00. While it is not necessary to hire an attorney to file a mechanic’s lien, it is common to do so since they often deal with this area of law on a regular basis and can guide one through the process accordingly.

Once the Mechanic's Lien is properly filed, the duration of the lien, in the State of New York, is typically not to exceed a one year term. Unless other factors exist, a party make extend the duration of the lien for an additional year if it is not satisfied. If the property in question is in foreclosure, the courts will allow the lien to be extended past the one year period in order to allow proceedings to commence and conclude accordingly.

The amount of the lien may only include the cost of labor and associated materials. A contractor may not add finance charges to the Mechanic's Lien in question.

For more information on Mechanic's Liens and other New York State laws and statutes, visit http://public.leginfo.state.ny.us/menuf.cgi

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Things to consider before filing a law suit

2010-11-02T06:40:00.000-07:00

Filing a law suit should never be done without first carefully considering several factors. First and foremost, one must be certain that their issue indeed requires legal action. More often than not, issues between parties can be resolved without taking official legal action. Only when parties cannot work things out amicably should a law suit be considered.

If an amicable agreement cannot be reached, a person must then make the important decision as to how to proceed with resolving their legal conflict. The first thing one should consider is whether or not they have standing to bring about a cause of action. To have standing, one must have a “stake” in the matter at hand. If, for example, a person is hit by a car and the other party is not willing to take responsibility for their negligent actions, the injured party would have standing to bring a cause of action in court. However, if the injured person’s friend who was not involved in the accident wishes to sue on their behalf, they would have no “legal stake” in the action and therefore no legal standing.

Once standing on a given matter is established, one should consider whether they are going to represent themselves or hire an attorney. In certain circumstances, one can apply for a public defender at no charge if they financially qualify. However, assigned counsel typically applies only for criminal and family court matters. If you choose to represent yourself in a legal matter, you are considered pro se.

Next, the proper venue needs to be established in order to go forward. A party needs to determine whether their matter falls in the realm of small claims or perhaps county court. In New York, the maximum amount allowed to litigate in Small Claims court is $5,000. If your legal issue involves a monetary amount that is higher than $5,000, the proper venue to bring a cause of action is County Court. Also, the initiating party must consider that they must bring the action in the county in which the defendant resides or does business.

If one feels as though they have a personal injury claim, they again should be sure that they in fact have standing to sue and that a valid claim actually exists. In today's society we are riddled with all sorts of frivolous law suits. Said law suits often waste valuable time and money and ultimately cause more harm in the long run. Personal injury law is a very specific and specialized area of law. If one feels as though they have a lawful claim against another party, it is recommended that they consult with an attorney that is well versed in this area of law.

Another area of law that is a "hot bed" for litigation is family law. This is a very emotional area of law since it involves children, custody, and other domestic issues. Here, when a dispute arises between rival parents or family members, people often "fly off the handle" and are quick to march down to their local Family Court and file a petition. With Family Court, it is relatively easy for a person not familiar with legal procedure to file a petition for a cause of action because the forms are readily available at the court clerk counter and are "fill in the blank" format. Here, once a petition is filed, it is processed and the case is put on the court calendar. A Law Guardian, also known as Attorney for the Child(ren) is then automatically assigned to the case by the presiding family court judge. The Law Guardian, by law, must personally meet with the children prior to the case to assess the situation and ultimately look out for their best interests. Since a family court action is not taken lightly in the eyes of the law and because it is multi faceted to say the least, it is highly advised that litigants work their problems out amicably prior to filing said cause of action. Mediation is also an avenue people can go down if they cannot work things out themselves. This process is a bit less strenuous on the children and the parties in general.

People also need to consider whether or not the issue to be litigated is actually worth the time and effort. For example, if someone owes you $100 and you go out and spend $500 on legal representation, it does not make much sense to pursue the issue in this fashion. Perhaps a better forum would be to attempt to work out the problem outside of court or maybe “let it go” all together.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Adding a Codicil to your Will

2010-10-22T21:16:00.000-07:00

Once people already have their Wills in place, they often find themselves in a position where they want to change or add a particular provision. The easiest way to go about adding a new stipulation to one's Will is to draft a Codicil.

A Codicil is defined as a supplement or an addition to a Will. It may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions that are present in an existing Will. By adding a Codicil, it does not revoke the existing Will in its entirety but rather amends it to reflect the desired changes and modifications.

The execution of a Codicil in New York State is implemented the exact same way as the Will itself. Often times people will attempt to have a Codicil drafted and then notarized. This is not valid execution. To properly execute a Will and Codicil in the state of New York, the following requirements must be met:

1. The testator (person who makes the Will) must be at least 18

2. The Will and/or Codicil must be signed by the testator

3. Testator's signature must be at the end of the Will/Codicil

4. Testator must "publish" the Will/codicil by declaring the document to be their last Will & Testament

5. There must be at least 2 witnesses attesting to testator's signature of the Will/Codicil

6. The execution ceremony must be completed within 30 days, which begins to toll when the first witness signs the document. This ceremony consists of getting all the signatures completed and having the testator attest and acknowledge that he/she is implementing their Will/Codicil.

7. Testator must sign or acknowledge signature of Will/Codicil in the presence of each witness.

New York doesn't require that the witnesses sign in each other's presence, nor does it require that they sign in the testator's presence. However, the testator must sign or acknowledge his/her signature in the presence of the witnesses.

Bottom line, in New York, if one wants to amend their Will without drastically altering its overall premise, the most efficient way to go about doing this is to execute a Codicil. When doing so, be sure to follow the proper steps and procedure or it will be invalid and the original executed Will will take precedent without having your intended amendments included therein.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Cats are natural born lawyers

2010-10-13T07:16:00.000-07:00

Growing up as a child, I was a dog person. I had a dog at a young age and my dog, like most dogs, wore his emotions on his sleeve. He would go crazy and wag his tail feverishly when I came home from school and was never one to shy away from affection.

As an adult, my wife and I decided to get two baby kittens to start our family, so to speak. Having never owned a cat, I went about treating them just like I did with my old faithful, loyal dog, Rusty. I was in a world of shock when my cats would run away every time I came near them. When I picked them up, they whimpered and did everything in their power to get out of my clutches. My wife, who grew up with cats as pets, had no trouble in wrangling the kitten’s affections and as a whole, they took to her a lot better than me. I asked my wife why this was happening and she simply told me that I needed to let the cats come to me on their own terms. I then decided to take this advice and sure enough, as I calmed my approach to them down and allowed them their space, they eventually warmed up to me.

This same approach works wonders in dealing with clients and people as a whole. More often than not, when two or more individuals have a dispute, their first instinct is to get their point across at all costs without really allowing the other person or persons into the conversation. This was how I approached my cats, who would quickly retreat due to the overwhelming nature of my affection. This is comparable to real life disputes when people feel attacked and overwhelmed, they often do not respond in a productive manner and usually the debate escalates without much progress.

However, if one were to go into a legal dispute, or any type of conflict, with the attitude of allowing the other person to express their point of view without jumping all over them, the probability of a successful resolution is greater. In other words, sometimes you need to let the other person “come to you” and once they do, you will likely gain, to some degree, their “affections.”

Again, all this is common sense, but that doesn’t mean people often follow it. Sometimes taking a step back will get you a lot further in the long run.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The role of a Law Guardian

2010-10-01T09:07:00.000-07:00

People often hear the term Law Guardian and are immediately confused as to what that role entails. The role of a Law Guardian in Family Court is to act as the attorney for the child or children involved and to look out for their best interests. In New York, the term Law Guardian has been replaced by “Attorney for the Child(ren)” in what I assume is an attempt to avoid said confusion as to what the job entails. However, much like die hard defunct names such as “The Pepsi Arena” and “World Wresting Federation,” the Law Guardian moniker will in all likelihood be used for quite some time.

In every case that is filed in Family Court, no matter how adverse or amicable, the children involved automatically get assigned a Law Guardian. This often confuses and concerns parents, especially when the parties are going to court just to amend an order or amicably change certain mutually agreed upon arrangements. In instances such as this, there is no need to be alarmed because, as stated, when filing in Family Court, an Attorney for the Child is attached to the case. This is so the child has their own separate legal advocate that is not potentially biased toward the mother, father, or other interested parties.

The Law Guardian, although not officially a mediator, often acts as a go between among the parties in an attempt to come to some sort of resolution that is in the best interest of the children. A Law Guardian will make it very clear at the onset of the case that they are the child’s lawyer, not mom or dad’s. Anything the mother, father, or other interested parties say to the Law Guardian may be used against them in court. Anything that is discussed between the children and the Law Guardian is to be confidential and does not have to be disclosed to the mother, father, or interested parties.

Once the case is set down for a first appearance in Family Court, the Law Guardian is assigned to the applicable children. The Attorney for the Children often sends a letter to all parties involved introducing themselves. It is required that the Law Guardian meets with the children for an initial interview. This is required regardless of the age of the child. Clearly, a child 6 months old will not be able to carry on a conversation like a 16 year old would, but never the less, an initial interview is to be conducted. These interviews are typically conducted with age appropriate dialogue and are usually not that invasive to the child. As a Law Guardian myself, I try to make the client interviews as comfortable as possible for the children, as they are often understandably upset and uncomfortable about their current family circumstances.

The parties then meet at Family Court for a first appearance and the case is heard before the judge. The children, unless special circumstances exist, do not appear in the courtroom. The Law Guardian appears and advocates on their behalf.

For further information regarding Family Court proceedings, contact the Family Court located in the county in which your children reside.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Trademarks 101

2010-09-17T09:15:00.000-07:00

We’ve all seen the little “TM” symbol near names of commercial products but what does it actually mean? The “TM” stands for “trademark” which, according to the United States Patent & Trademark Office, is a word, phrase, symbol or design, or a combination of words phrases, symbols pr designs, that identifies and distinguishes the source of the goods of one party from those others. In basic terms, this means that once you have a trademark on a particular word, phrase, symbol, or service, no one else may use that particular “mark” without your permission.

Trademarks come into play in terms of intellectual property, which is a fancy term for an individual’s creative take on a particular product, service, phrase, or word. With intellectual property, a person can trademark their individualized original creation, but cannot trademark a given idea. They can only trademark their own particular version of said idea. For example, Sylvester Stallone cannot trademark the idea for creating a movie based on an underdog boxer who becomes champion of the world through all sorts of adversity. He can, however, trademark his particular take on said idea in the form of Rocky Balboa and that character’s exploits.

In terms of business, the gourmet restaurant McDonald’s has a trademark on the name “McDonalds” as it pertains to the sale of fast foods and services. A person, even if their name was in fact “McDonald,” could not choose to start up their own fast food company and use that particular name.

A person or company could, however, choose to use the name “McDonalds” if they were entering into a field of business that was not similar to the fast food industry. The key is whether or not there is potential confusion in the market place. If, for example, Joe McDonald wanted to open a jewelry business and call it “McDonalds Jewelry” he could do so because there would be little confusion as to what services he offers as opposed to what McDonald’s fast food restaurant offers.

In the iconic 1987 Eddie Murphy film “Coming to America,” John Amos’ character created a fast food chain called “McDowell’s.” Despite the fact that this was the character’s real last name, by using this as a name of a competing fast food chain, there would be all sorts of confusion as to whether McDonald’s and McDowell’s were the same entity, due to the similar name, symbol, product, and service. In real life, the McDonalds Corporation would have challenged McDowell’s use of the name in relation to its restaurant. Similarly, if he chose the name “Burger Queen,” the Burger King Corporation would have been all over it.

To file for a trademark, one would need to go through the United States Patent and Trademark Office. By visiting their website, one can search the trademark database to see if a particular mark has already been taken. When searching, please keep in mind that a given mark may already be taken, but may be used for a different product or service. If this is the case, you may still be able to use the mark you originally intended, assuming no confusion in the market place exists. One does not technically need to hire an attorney in filing for a trademark, but may choose to do so if things get overwhelming.

For the USPTO’s website, go to www.uspto.gov

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Attitude is Everything

2010-09-11T10:06:00.000-07:00

Tennis legend Andre Agassi once said, “Image is Everything.” While that not so modest statement may hold true in some aspects of life, it certainly doesn’t always apply to the legal world.

When it comes down to a legal dispute between parties, the better mantra to follow would be “Attitude is Everything.” A person’s attitude drastically comes into play when a dispute arises in terms of settlement. More often than not, if a person’s attitude is positive from the onset, most disputes can be settled rather quickly. It is when people attempt to “fight fire with fire” that often causes disputes to escalate. This in turn is when nasty litigation occurs.

Truth be told, if one keeps a positive attitude when a potential legal dispute arises and enters the situation calmly and rationally, a lawyer would not be needed. (Parish the thought!) Simply staying calm in a given situation can do wonders in terms of getting to the bottom of a particular dispute. When one party is combative toward another, a person’s first instinct is usually to fire right back in a hostile like manner. As another old saying goes, “you get more with sugar than with vinegar.” This old saying truly applies when it comes to the onset of a legal dispute.

One should also be acutely aware of their body language when entering into a legal debate or dispute. Like in poker, a person’s body language and facial expressions can tell an adversary everything they need to know without them uttering a word. The key is to not “show your cards” and keep one’s emotions from manifesting on the surface. This is extremely difficult for people who often wear their heart on their sleeve. My advice is to “wear long sleeves” and not let emotions get the better of you when faced with a legal dispute.

Judges and attorneys are especially keen on picking up subtle body language cues, especially when in court. When appearing before a judge, if one’s conduct is very standoffish and aggressive, the judge may formulate certain thoughts and opinions that are not ultimately in their favor. If, however, a person stays on point, addresses the judge in a confident and respectful manner, they more often than not will be given the benefit of the doubt on a lot of issues.

A lot of what I have been saying here is pretty much common sense. However, when faced with an emotional legal situation, people often forget their manners and go for the jugular. By keeping one’s cool, a potentially heated legal debate can be stifled efficiently, effectively, and rationally.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Where to go for Legal Research

2010-09-03T19:03:00.000-07:00

One of the beauties of the legal profession is that anyone can be their own lawyer if they so choose. Of course, there’s the old saying that states a person who represents them self has a fool for a client. This statement may or may not be true, but before hiring a lawyer for a specified matter, one should consider doing a little legal research on their own to better acclimate themselves to their current situation or predicament.

I’m not going to lie. Legal Research can be confusing, tedious, demanding, and exhausting. Believe it or not, there are some practicing lawyers out there who never truly master the art of legal research, present company excluded of course.

When faced with a legal issue and you want to educate yourself more about it, one of the best, if not THE best places to conduct said research in the Capital District is Albany Law School. Albany Law School has arguably every research tool a person can hope for. For an added bonus, the library is open to the general public and their staff is at one’s disposal. A lot of lawyers continue to use the Albany Law School library after graduation due to its vast resources.

When doing Legal Research, one of the most important things to look out for is making sure the law being cited in your research is up to date. All sorts of rulings and legislation are constantly being passed, changed, or amended on a consistent basis. To be sure that you have “good law,” one must Shepardize. To “Shepardize” means to cross reference the material you are citing and to make sure that it is up to date and relevant. There are all sorts of websites that give the ins and outs to Shepardizing. However, if you are new to the wonderful world of legal research, I simply suggest asking the law librarian to help you.

Another place to go for Legal Research is a local library. Most libraries have some degree of legal literature and reference materials that should allow one to at least get the ball rolling, so to speak. Again, if you feel overwhelmed, do not hesitate to ask the reference librarian for help.

An advantage of doing a little Leal Research prior to diving into a personal or professional legal matter is that it puts you on the right course and allows one to have a better feel as to what they are getting themselves into. As another old saying goes, “Knowledge is Power.” The more knowledge you have prior to getting involved in any legal situation will no doubt put you in a better all around position.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Taking a Defensive Driving Course

2010-08-30T20:35:00.000-07:00

We’ve all heard of a Defensive Driving Course, but exactly what does such a course entail? Most often people enroll in said course because they received a traffic violation and have acquired a few points on their license.

By enrolling and completing a Defensive Driving Course, an individual can have up to 4 points removed off their license at a given time. If you receive a 2-point violation, the course will eradicate said points. However, you can’t “bank” the other two and have future points retro actively removed. In New York, taking a Defensive Driving Course for point reduction is allowed once every 18 months. The course does not remove the actual violation for your driving record, but it does remove the points. Having points on a driver’s license will often make insurance rates go up. Therefore, it is best to have them removed or reduced whenever possible.

Another benefit of taking a Defensive Drive Course is receiving a 10 percent discount on car insurance. Even if one has a flawless driving record, they may enroll in a Defensive Driving Course and upon completion, receive said discount.

A typical Defensive Driving Course lasts for 2 days, approximately 5 hours each day. There is no written exam. The topics that are discussed include maintaining proper speed, signaling, seat belt use, vehicle maintenance, and over all driver awareness.

So if you or someone you know received points on their license and wish to get their record “cleaned” up, taking a Defensive Driving Course is the way to go. Plus, the 10 percent discount on car insurance is always an added bonus.

To find out where courses are offered in your area, contact any local DMV and they will point you in the right direction. Also, check the web, as certain places are offering online-based courses and seminars.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Filing for Custody in Family Court

2010-08-26T07:26:00.000-07:00

As stated in one of my prior blogs, dealing with issues in Family Court can be very stressful and confusing. Often times when issues surrounding custody and visitation arise, parents and loved ones don’t know where to turn.

When custody issues arise, the first thing a person should do is go to the Family Court located within the county they or their children reside and file a petition for custody and visitation. This is a standard “fill in the blank” type form that can be obtained at Family Court. Simply ask the clerk and the form will be provided free of charge. The form will typically say the following at the top left hand corner:

PETITION FOR MODIFICATION OF CUSTODY OR VISITATION

Check the box that applies and fill out the requested information accordingly. Once complete, hand it to the clerk and it will be put on file with the court. You, along with the opposing parties, will receive notice in the mail of a court date. The initial court date given is identified as a “First Appearance.” At this time, the child(ren) will be assigned a Law Guardian, also known as the Attorney for the Child, who will represent their best interests.

The parties will appear on the given court date and the Law Guardian, along with the Judge, will attempt to help the parties come to some sort of amicable agreement regarding their issues. If no agreement can be made, the parties may request an adjournment to either seek counsel or they may proceed forward representing themselves. The judge will typically adjourn the matter for several weeks to allow the parties an opportunity to come to a resolution on their own. If not, the matter gets set down for trial.

As stated, custody issues can become difficult to deal with due to the inherent emotions that are associated with them. If one is not sure about their rights and how to properly proceed, they should seek out an attorney that handles these matters on a consistent basis. If one cannot afford an attorney, they can apply for assigned counsel at no charge when filling out the initial custody petition. Simply ask the clerk for the assigned counsel forms and they will provide and file them accordingly.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Eviction 101

2010-08-14T21:29:00.000-07:00

When a landlord decides to evict a tenant for failure to pay rent, there is a strict procedure to abide by. If the tenant has not paid rent, the landlord must serve a personal demand. This demand, known as the “3 day notice,” basically tells the tenant to either pay the rent owed within the next 3 days or surrender possession of the premises. The 3 day notice can be served by the landlord him or herself and must state the amount of rent that is owed along with the period of time for which said rent is due. The rent is due within 3 business days after said service. If a landlord does not feel comfortable with serving the 3 day notice themselves, they may use a process server or anyone else that is 18 years of age or older and is deemed competent to serve. Once the 3-day notice is served, the server must sign an affidavit of service in front of a notary. This document shows proof that service actually took place and would come into play in court if the matter goes that far.

If the tenant does not pay the rent that is owed after receiving the 3-day notice, a Landlord-Tenant Proceeding can then be initiated in the court in which the property is located. In this proceeding, a Notice of Petition and Petition is to be filed. These documents need to be served upon the tenant by a third party, typically a process server.

Within the Notice of Petition, the landlord, or attorney for the landlord, must contact the court for a court date. This date is to be added on the Notice of Petition and cannot be sooner than 5 days nor later than 12 days from the date the tenant is served. Again, the landlord can fill out the forms and have them served or they may hire an attorney who would then do all the legwork for them.

The actual Petition is served along with the Notice of Petition and must state the respondent’s interest in the property, such as whether he/she is a tenant, sub-tenant, etc. The Petition also typically includes the basic terms of the lease, the monthly rent and the payment schedule. Once these documents are complete, the landlord or attorney for landlord must have the judge or clerk of the court sign them and then they may be served on the respondent (tenant). If, for example, the court date given by the court is September 15, the Notice of Petition and Petition can be served as early as September 3 and as late as September 10. All of these documents, including the previously served 3-day notice and associated affidavit, must be filed with the court in duplicate along with the filing fee. This fee can vary, but it usually around $45. The affidavit of service for the Notice of Petition and Petition must be filed with the court within 3 days after service.

If the tenant pays the rent that is owed prior to the court date, the tenant cannot be evicted at that time. If the tenant fails to appear in court or does appear in court and fails to pay the requested rent and has no viable excuse for not doing so, a judgment is entered in favor of the landlord. The judge then signs a Warrant of Eviction. The Warrant of Eviction enables the Sheriff to remove the tenant from the premises. By law, there is a 72-hour waiting period between the time the Sheriff serves the Warrant of Eviction and when the tenant can be removed from the premises.

This procedure is to be followed when a tenant fails to pay rent. If a landlord wishes to evict a tenant for a reason other than non-payment of rent, they need to serve a 30 day notice and then go from there. This procedure will be addressed in greater detail in an upcoming blog so stay tuned.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Getting started in Family Court

2010-08-05T08:36:00.000-07:00

Having to go through Family Court when dealing with an issue can be an extremely difficult and stressful process. I will be doing several bogs on this topic in the future due to its enormous scope.

Matters that involve going through Family Court to bring a cause of action typically involve custody matters, issues of neglect, juvenile delinquency, persons in need of supervision (pins) and support matters.

If one has an issue that is need of Family Court intervention, the first thing they need to do is file a petition. These documents are typically “fill in the blank” so they are pretty user friendly. Simply go to the Family Court located in the county in which you or the child(ren) live in and ask for the petition you are in need of. The court clerks in Family Court are usually pretty helpful in pointing applicants in the right direction. Once you fill out the proper petition, the clerk with file it and you will then receive an appearance date in the mail.

Understandable, many individuals feel overwhelmed with this process, due to the often-emotional nature of the matter. If this is the case, it would be wise to retain an attorney who is experienced in these matters and they would file the appropriate documents for you. If an applicant qualifies, an attorney can be appointed by the county to represent your needs at no cost. To see if one qualifies, an application must be filled out upon filing of initial petition.

If one is not sure if they want to hire an attorney, or apply for one, they may represent themselves accordingly. After the initial filing, if the petitioner (or respondent) decides that they do indeed need an attorney, that person can simply appear in court, request an adjournment to seek counsel and the judge will then almost always grant such request. The retained/assigned attorney will then likely re-submit the petition that you initially filed with amendments to make it flow a little better and “dress it up” so to speak.

Once the parties meet for a first appearance, negotiations begin to take place in terms of settlement, which is key in Family Court. The ultimate goal in Family Court is for the parties to resolve their issues with as little court intervention as possible. If the parties cannot come to an amicable resolution, a pre trial conference is set up at a later date and then ultimately a trial if needed.

Stay tuned for more blogs on this topic including custody matters and issues of neglect.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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The Confines of Confidentiality

2010-07-28T19:45:00.000-07:00

One of the most important things within the attorney-client relationship is confidentiality. Once said relationship is set in motion, the attorney is bound to keep everything the client says to him/her in confidence. They can’t go blabbing to their neighbor or best buddy as to what you talked about during your meeting. They can’t discuss the finer points of a conversation they had with a client over a quiet dinner with their spouse. And in this day in age, they most certainly can’t go on their Twitter and/or Facebook account and post a witty remark about the inner workings of your relationship.

Bound by the rules of ethics, an attorney is required to keep everything that is discussed within the confines of the attorney-client relationship confidential. To do this, said relationship must first be established. For example, if an attorney is talking with a friend about something personal and the attorney then “gossips” about the conversation to another friend or colleague, confidentiality is not broken because no actual attorney-client relationship between the parties was formally established. For confidentiality to exist, the attorney and client have to have a “meeting of the minds” and voluntarily enter into such a relationship. If not, anything you say to an attorney can and will be used against you, so to speak.

The rules of confidentiality also do not apply when a third party is present. Here, whatever is divulged to the attorney cannot be considered confidential because of the presence of the third party. If the third party is also a client that is involved in the same case, such as a husband and wife, then confidentiality would be back on the table. However, if a dispute were to arise between the husband and wife based off of what was said in confidence between them and the attorney, the attorney would not be bound to keep things in confidence in favor of one spouse over the other.

If a client discloses to their lawyer that they are going to cause harm to another individual, the lawyer in this scenario is not bound by the attorney-client relationship in terms of confidentiality and may notify the proper authorities to prevent said act.

Similarly, if a client tells their lawyer that they have intentions on hurting themselves, such as committing suicide, the lawyer is not bound in confidence and may alert the proper authorities.

While it is true that the attorney-client relationship allows the client to speak their mind without the stress and fear that their disclosure will end up in tomorrow’s “headlines,” there are numerous times when lawyers do not have to take the information “spilled” upon them to the grave. When talking to a lawyer and it is your wish to keep things secret and off their Facebook and Twitter feed, be certain an iron clad attorney-client relationship exists. Make sure nobody else in the room and don’t make mention of any intention to harm yourself or anyone else. If all of this is properly done, your attorney will then be ultimately required to take your deepest, darkest secrets to the grave.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Did somebody say Hearsay?

2010-07-22T18:25:00.000-07:00

We’ve all heard of the term “hearsay” but what does it really mean? In the legal vernacular, hearsay is defined as an out of court statement (oral or written) by a person (referred to as a declarant) offered to prove the TRUTH of the matter asserted. In other words, a person can testify that they saw somebody run a red light and attempt to have that testimony offered as actual PROOF that the person in question in fact ran the red light. Another example would be if a declarant testified that they saw a man shoot another man with a pistol. Here, the declarant’s testimony cannot be admitted solely for the purpose of TRUTH that the man in question actually committed the shooting.

Confused? Don’t worry. Even the mightiest of lawyers around the globe have trouble differentiating what is and is not hearsay. Most times, when an attorney yells “objection!” during a trial, they are referring to a violation of the hearsay rule. Unless an exception exists, standard hearsay is inadmissible in court.

The exceptions to the hearsay rule is where all the fun is at. Whether a statement is or isn’t hearsay will depend upon the PURPOSE for which it is offered. The keyword here is PURPOSE. Many out of court statements (such as a piece of a conversation between parties) may look like hearsay at first glance, but are not to be considered hearsay if said statements are NOT offered to prove the truth of the matter asserted in the statement.

Statements made that go on to show things other than truth are often deemed admissible and therefore are not to be classified as hearsay.

The top ten most common exceptions to the hearsay rule are as follows:

Party Admission
Former Testimony
Forfeiture by wrongdoing
Statement against interest
Dying declaration
Excited utterance
Present sense impression
Statement of then-existing mental, emotional, or physical condition
Statement for purpose of medical treatment or diagnosis
Business and public records

These exceptions apply because TRUTH is not being offered when testimony is given and therefore are not to be considered hearsay.

The main reason why statements that are considered hearsay are not allowed in court is because they are simply not reliable. Often times it is one person’s word against another and therefore the truth of the matter asserted cannot be established on those statements alone.
Without the hearsay rule, trials would become one big finger pointing “he said, she said” accusation-laced free for all. As The X-Files’ Agent Fox Mulder once said, “The truth is out there.” The hearsay rule helps us get there.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Legal Movies You Can Learn From

2010-07-12T14:00:00.000-07:00

My mother always told me as a kid that I watched too much TV. She was absolutely correct. However, I believe that every so often, television and movies do a fine job in illustrating certain real life situations and are pretty accurate in their depiction.

There have been several legal based films over the years that I feel do a great job in presenting legal issues in a realistic manner.

One movie right off the bat that is a great introduction into the legal field is the 1972 classic The Paper Chase. There was a spin off TV show by the same name, but I am referring to the movie. This film really does a great job in depicting the life a first year law student. It may appear a bit out of date, but the basic core structure of law school today is still in tact. Students are often “reborn” when they begin law school. Everything they learned in college is out the window, so to speak as students are abruptly forced to adapt to a whole new way of learning. As always, there are those who flawlessly make the transition, but again, they are in the minority.

Another great legal drama is A Few Good Men. This Tom Cruise classic really shows how experience can sometimes be tossed aside in favor of tenacity and sheer dedication. A lot of good trial techniques were exposed in this film. I wouldn’t go so far as to say everything in the film is true to real life, but all in all, it’s a good depiction of trial procedure. For the record, I have yet to have a witness tell me I couldn’t handle the truth.

A Time to Kill is also a great movie in terms of watching a trial unfold. In this film, pure passion and emotion came into play more so than the actual law. Sometimes presenting the law isn’t enough. The attorney needs to “sell it” and speak from the heart. This movie did a great job in depicting how raw emotion comes into play while conducting a trial.

As discussed in one of my previous blogs, My Cousin Vinny is a great legal film that a person can pick up useful pointers from. In fact, my Evidence professor in law school said that comedy aside, this movie really does a fantastic job in demonstrating how the rules of evidence are played out during a trial.

The films A Civil Action and Erin Brockovich specifically focus on environmental law and were based on a true story. These movies show how the negligent actions of big companies can have a serious adverse affect on the average American citizen.

Certain aspects of the countless Law and Order television shows along with other legal dramas and “dramadies” such as The Practice and Boston Legal also serve up a decent quasi-legal lesson from time to time as well.

I often wonder what I would have become if I skipped watching re-runs of Night Court.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Where there’s a Will there’s a Way

2010-07-05T19:04:00.000-07:00

As I’ve said in a previous blog, everyone should have a will. It doesn’t matter if you have Bill Gates money or if you are living paycheck to paycheck. Having a will securely in place provides financial stability and piece of mind.

Contrary to popular belief, one does not have to take the time and itemize every single item or artifact they have acquired through his or her lifetime. All one has to do to ensure their loved ones inherit their worldly possessions is to set up what is commonly referred to as a “simple will.” It’s simple because it is direct and to the point. There is not a lot of lugubrious language that makes things complicated and verbose. Instead, a simple will is typically crafted to make sure the spouse of the testator (person who dies leaving a will) receives all their personal and real property. Bluntly put, the spouse gets it all. They get the house, the cars, the golf clubs, the jewelry, you name it. The testator does not have to specifically name each and every item.

Also found in a typical simple will is language naming another party as substitute beneficiary. This is in case both husband and wife die simultaneously. In this case, both spouses are deemed to have pre-deceased each other and the other named beneficiary or beneficiaries in the will get all of their personal and real property. These beneficiaries are usually the children, grandchildren, or other close relatives.

If one wishes a specific individual to receive a specific item, such as an old family heir loom, this item would then need to be specifically mentioned in the will and so on.

I would like to mention that one does not have to be married to create a simple will. The basic structure still applies.

In terms of executing a will, this is also simple, pun intended. In New York State, a will needs to be witnessed by 2 non-interested parties. Once this is done, keep the will in a safe place, such as a safe, lock box, or something of that nature. These types of wills take relatively little time to have drafted up and are reasonable in terms of attorney fees.

By taking the time to put a will of this nature in place, an individual is ultimately putting themselves and more importantly their loved ones in a more safe and opportune financial situation.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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My Cousin Vinny

2010-06-27T09:16:00.000-07:00

For the record, I actually do have a cousin Vinny and yes, he is a NY lawyer. However, he does not resemble the great Joe Pesci, nor does he talk and dress like him. The title of this blog refers to the great 1992 movie of the same name. This film, in my opinion, not only provides a great amount of laughter, but it is truly a great representation in how the rules of evidence are applied. The film also demonstrates effective analytical techniques that are necessary during a trial.

A person can really learn a lot in a short amount of time in terms of legal analysis by simply watching “My Cousin Vinny.” Often times, when witnesses testify at trial, they are telling the truth even if the facts and evidence do not support their claim. It’s all about perception. If an individual perceives something as the way they saw, heard, or felt it, they will adamantly testify to the truthfulness of the matter asserted. However, perception is not always reality.

For example, in “My Cousin Vinny,” there is a scene in which Joe Pesci’s character examines a woman who claimed to have seen the faces of the alleged perpetrators. In this scene, the woman testifies that she had a clear view of the two men’s faces. However, Vinny had taken pictures of the window in which the woman looked through to see the two men. Here it was shown that the there was a dirty screen on the window, which would obstruct a clear view. The witness in this case did not lie on the stand. She testified to the truth in which she believed. It was Vinny’s keen analytical skills that destroyed the witness’s credibility on this issue.

There is another famous scene within the film that addresses the element of the passage of time. A short order cook was called as a witness to testify about hearing gunshots fired from the “Sac o’ Suds” convenient store. Here, the cook claimed that he heard gunshots 5 minutes after he finished cooking breakfast, more specifically, cooking grits. Normally this type of testimony would not be heavily attacked. However, as Vinny pointed out, everyone in the grit-eating world knows that it takes 20 minutes to fully cook grits. (Assuming no respecting Southerner would use instant grits, of course) Therefore, the cook’s testimony was deemed falsified since it was claimed he heard guns shots 5 minutes instead of 20 minutes after he finished cooking breakfast. This time differential opens up all sorts of possibilities for which two different men could have been at the scene of the crime and fired said gunshots instead of the ones currently on trial for murder.

Also, lets not forget the scene in which a woman testified that she could readily identify what the two alleged killers looked like. On the stand, she was positive that she could accurately identify the assailants. However, Vinny once again shows holes in the witness’s testimony my asking if she wears glasses. When she said she didn’t wear glasses for distance, Vinny walked to the back of the courtroom and held up 2 fingers. The woman, without proper glasses, could not identify how many fingers were being held up.

Not only can new attorneys learn from these methods, but so can everyone else in relation to everyday life. People often argue about the most trivial things and more times than not, both sides are correct to a certain degree. It’s not always about who is right or wrong. It’s not always about who is lying and who is telling the truth. Perception is most often the key factor in resolving an issue. Sometimes the best way to come to an appropriate resolution is to take a page out of Vinny Gambini’s playbook. Revise and analyze.

On a side note, I tried grits for the first time after watching this movie. They’re not bad. As a self respecting Northerner, I prefer to make instant.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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How do I get paid after I win my case?

2010-06-24T18:25:00.000-07:00

Winning your case in Small Claims Court is often the “easy” part. The real challenge arises in the collection of the money judgment.

Typically what happens after a person wins in Small Claims, they are awarded a certain amount of money and the defendant is immediately bound to pay said amount. What often happens is the judgment debtor (the person who owes the money) refuses to pay or is not able to pay the debt at this time. There are several options one can take in collection of the money owed to them.

First and foremost, the judgment creditor (the one who is entitled to the money owed) must request a transcript of judgment from the court. The cost for this is $6. After one obtains this document, they must file said judgment in the appropriate county clerk’s office. The cost for this is $10. These expenses get added on to the overall judgment amount.

Once the judgment is filed, the judgment creditor can attempt to have the debtor’s wages garnished if they have gainful employment. If they are self employed or unemployed, this makes things a bit more difficult, but viable options still exist in getting paid the money that is owed to you.

The judgment creditor can send out an Information Subpoena to the judgment debtor. This document, usually obtained from the court, is to be personally served on the debtor. Within this document, the debtor is legally obligated to list all their assets, income, employment status, bank accounts, social security number, etc. They then are required to send this document back to the judgment creditor. From here, the creditor may attempt to seize any assets the debtor may have, such as a bank account, in an attempt to force them to turn over the money they owe. If a debtor has a valid bank account, the creditor can send the bank a Restraining Notice, which effectively “freezes” the debtor’s account so they cannot withdraw anything out of it. At this point, the parties can work out some sort of deal. If not, the sheriff is then notified and funds are allocated accordingly.

This whole process takes a lot of patience. Like I’ve said about other aspects of the law, collection of a money judgment can be like a marathon. Slow and steady will win the race. Often times, people will go to Small Claims Court mainly out of principle. If you strongly feel you were wronged and are entitled to every penny awarded in court, do not hesitate in collection of said judgment. I assure you, you’ll sleep better at night knowing you did everything you could to fight for what you felt was right.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Studying for the bar when you’d rather be at the bar

2010-06-15T10:19:00.000-07:00

As mentioned in my previous blog dealing with this topic, studying for the bar exam in the summer is no picnic, pun intended. By now most recent law graduates are in their third week of studies and reality is starting to set in. Most students take the bar review course Bar Bri in this area. Bar Bri does a decent job in preparing one for the bar but this course alone will not bring the recent law school graduate to the promise land.

Simply going to the course day after day and listening to the lectures will not be of any service unless you do the required practice questions that they lay out in the syllabus. I know in my last bar exam blog I mentioned that one should do countless practice questions. I cannot express this enough! The phrase “practice makes perfect” truly applies when it comes to passing the bar.

In my opinion, students should do more than the recommended multi-state multiple-choice questions. The Bar Bri syllabus has the student doing a ton of multi-state multiple-choice questions toward the end of the session. I feel that the pace they set out in terms of these questions is a bit overwhelming and students often have trouble keeping up toward the end. I recommend that students do at least 25 multi-state multiple choice questions per day, regardless of what the schedule says. I’m not saying ignore the Bar Bri schedule, I just think that doing at least 25 questions a day along with essays and other related material will build stamina and consistency.

Unfortunately, cramming will NOT work when it comes to the bar exam. You can do 2,000 questions two days before the exam and I assure you, your results will not drastically improve. I equate this to a person not brushing their teeth for six months and then the day before they go to the dentist, they brush for 48 hours straight. Your teeth will still be in rough shape and so to will you if you attempt to cram for this crazy exam. As I touched upon before, think of studying for the bar as a marathon. To be successful, you need to start slowly, build consistency, and eventually everything will just click.

I strongly suggest studying in a secluded place with limited amount of noise. Try to take yourself out of the “daily loop” so to speak and stay focused on the task at hand. Don’t give in to summer temptations and hang out by the pool and beach all the time. Forget about bringing your books to the bar, beach, pool or party. There are too many distractions for one to fully focus on the material at hand. My suggestion is to “socially disappear” for the next 7 weeks or so. This includes not going to 4th of July parties and things of that nature. One might think I’m being too drastic in this recommendation but I stand by this because one party leads to another, and another, and so on. If you need to “blow off steam,” watch a quick movie within your own confines and order some decent take out. I will admit some students may be more disciplined and are able to party a little while successfully studying for the bar. Again, I think these people are in the minority.

Like getting the chicken pox, a person should only be subjected to the bar exam experience once. There is plenty of time for the bar AFTER you pass the bar. Best of luck to all.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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What to DO when you want to SUE, Part 2

2010-06-13T07:13:00.000-07:00

Once all parties are served with the appropriate papers and everyone is at the courthouse its now time for litigation. Litigation is the process of carrying on a lawsuit.

In most courts, the judge will call the parties up to the stand and ask them if they have reached an agreement. If they have not, the judge will give them the opportunity to go meet privately within the courthouse to discuss the matter further in an attempt to reach an amicable resolution. If the parties can reach an agreed upon settlement, they will go before the judge and put the agreed upon settlement on the record. From here, the parties would be bound to carry out said agreement. If an agreement can’t be reached, the litigants will proceed to trial.

At the start of a Small Claims trial, the claimant (plaintiff) will present their case first. If he/she has any documents, papers, items, etc. in which they want to present as evidence, they should have it with them at that time. Depending on the court, the judge may ask for all evidence at once and mark it accordingly or he/she may allow the litigant to present each piece of evidence as the trial progresses. Evidence is marked as “exhibits” along with a letter, the first being A, B, and so on. Small Claims court does not adhere to the strict rules of evidence so not all evidence is bound by the hearsay rule. Hearsay is defined as an out of court statement made by someone other than the deponent offered to prove the truth of the matter asserted. (There will be an upcoming blog on the topic of Hearsay, so if confused, stay tuned)

The claimant then presents their case by giving testimony. If they have any witnesses, they will call them up to the stand one at a time and subject them to direct examination. Once complete, the defendant will have the opportunity to cross-examine the witness. Cross-examination is limited to what the deponent testified to on direct. The cross examiner can’t go off on a tangent and ask about issues that were not raised on direct examination. If one or both sides have no witnesses, which is often the case, they themselves will testify on direct and the other party will cross-examine them accordingly. If one or both parties decide to use an attorney for trial, the attorney will conduct all examinations and presentation of evidence. The judge may directly ask the litigants questions themselves, but usually, once a person is represented by an attorney, the judge will speak directly to them as their agent.

Once all the parties plead their case, present evidence and call witnesses, the judge will often take a short recess, review the case in chambers and then render a decision. Often times the decision will be for only a partial amount of the money being sought. Other times, the judge may dismiss the case entirely for failure to state a proper cause of action, or simply rule in favor of the defendant.

If the loosing party wishes to appeal the decision, they may do so by filing the appropriate papers with the New York State Appellate division. This is a higher court that reviews the lower city, town or village court’s decision for possible errors. If one were to decide to appeal, they must notify the other party of their intent within 30 days of receiving a copy of the judgment, along with an affidavit stating that they indeed served the other party notice. The process of appeal can be quite tricky and confusing so it is strongly recommended that the person doing so contact the court clerk or consult with their attorney first.

Stay tuned for future blogs that will address collection of judgment, location of assets, and other ways to make a judgment debtor pay.

What to DO when you want to SUE

2010-06-06T09:10:00.001-07:00

Often people will enter into an agreement or business transaction and things just don’t work out. In the end, one or both parties may feel entitled to some sort of retribution, which usually comes down to money.

When you feel a person, entity or business owes you money, the first place to consider filing a cause of action is in Small Claims Court. A lot of people may have heard of Small Claims Court and more than likely have seen it play out to some degree on TV (Judge Judy, People’s Court, etc.) but what exactly is Small Claims Court?

Small Claims Court is an informal court where people can sue for MONEY ONLY, up to $3,000 in Town or Village Courts, and $5,000 in City Courts. An individual may appear in Small Claims Court without an attorney if they so choose.

If you are the one filing the cause of action (the plaintiff) the claim must be brought within the town, village or city in which the person/entity/business you are suing resides or has an office.

To be eligible to sue in Small Claims Court, a person must be 18 years of age or over. If you are younger, a parent or guardian may sue on your behalf.

If you are a member of a corporation, partnership, or association, you may sue on behalf of the corporation but you may only do so in Commercial Claims Court. Commercial Claims Court is a lot like Small Claims Court, but the corporation, partnership, etc. must file suit in a City Court within the county of residence and or business of the person in which they wish to sue. The corporation, partnership, etc. also must be represented by an attorney.

To start Small Claims action is pretty simple. Just call the court and request the appropriate form. Most court clerks are very helpful in guiding you along. In Town or Village Court, if your claim is for $1,000 or less, the filing fee is $10. If over $1,000, the filing fee is $15. In City Court, the filing fee is $15 for $1,000 or less and $20 for claims over $1,000.

The form to start a Small Claims action is typically pretty short. Your statement for cause of action should be brief and to the point. It should include a description of the incident that is at the heart of your claim, including all relevant names and dates.

Once you file this form with the clerk, a date and time will be provided. The clerk will then serve the notice of claim by mailing it to the defendant my both first-class mail and by certified mail. If the notice sent by first-class mail is not returned to the post office within 21 days as undeliverable, the defendant is deemed served, even if the notice sent by certified mail has not been delivered.

Once the defendant is deemed served, the parties come to court on the given date and plead their case. As you can imagine, a lot can happen once the parties go before the judge. It is the judge alone who will decide the outcome of the case. With a Small Claims action, there is no jury.

Stay tuned for part 2 of this blog, which will discuss trial preparation, strategies, counterclaims, adjournments, and collection of judgment.

Studying for the Bar while everyone else is at the BBQ

2010-06-02T19:50:00.000-07:00

This blog is targeted for recent law school grads but what I am about to say can be attributed to all walks of life in my opinion.

Studying for the dreaded Bar exam is no doubt a huge undertaking. What makes it more painful is the fact that students are forced to focus during the summer when there are countless distractions. Anyone who has taken a summer class in college can attest to this. The bar exam is arguably one of the hardest exams in the world to conquer, but with mind over matter, it can be accomplished.

It takes much more than academia or “smarts” to pass the New York State Bar exam. One should enter this process much like a prizefight and train themselves both physically and mentally. By physically, I mean building up ones endurance to be able to sit through 3 hours of grueling minutia on a consistent basis. Focusing on ANYTHING for 3 hours is hard enough sometimes let alone the wonderful world of law.

I will briefly mention that there are some individuals who can put in minimal amount of study time and pass the bar on the first try. If you are one of these people, more power to you. However, these individuals are in the enviable minority and should not be considered the norm. Most law school graduates need to put in COUNTLESS hours of work. Repetition is key, so the more practice questions one can handle, the better.

One of the main obstacles in studying for the bar right after law school graduation is the fact that it is summer and it is only natural that one would want to let their hair down. After all, you just spent an additional 3 years in law school and its time to blow off some steam, right? WRONG! As tempting as it may be to follow your buddies to the BBQ, avoid it all costs. One “break’ from studying will lead to another and before you know it, it’s a week before the bar exam and you barely cracked open a review book.

The best advice I can give a person who is about to embark on their bar exam studies is lock yourself away somewhere for the next 2 months. The more secluded the better. Passing the bar is well worth missing a few summer BBQ’s. This I can assure you.

Who parks on pavement?

2010-05-26T19:49:00.000-07:00

We've all heard of the term parking on pavement but so few of us actually know what the true definition is. The only frame of reference most people have is when they are offered this conspicuous charge when faced with a speeding ticket or some other moving violation. Section 1201 of the New York State Vehicle and Traffic Law defines Parking on pavement as the following:

Stopping, standing, or parking outside of business or residence districts. (a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event anunobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.

A typical example would be pulling your car off to the side of the Northway or other major highway and leaving it there to go sight-seeing.

A 1201(a) is the charge that most people wish to plead to when they receive a traffic ticket, especially when they are facing a charge that involves numerous points to their otherwise “spotless” drivers license.

A charge of parking on pavement is equivalent to a traditional parking ticket, such as parking on the wrong side of the street. The penalty comes with a fine and does not add any points to ones license. Another reason why this charge is so popular to plead to is because this violation does not appear on an individual's driving record. Hence, when authorities look at person's drivers abstract, which is basically a "rap sheet" of their driving history, nothing will appear pertaining to the charge.

Typically if a person has a clean driving record and the charge pending is not too extreme, an attorney can often negotiate a plea to parking on pavement.Some courts will offer a 1201(a), second offense if a driver has some recent infractions on their license or if the charge is a bit more severe. Parking on payment, second offense comes with a larger fine amount. It is still considered a non-moving violation and carries no points.

So if anyone has ever received a traffic ticket for speeding or some other moving violation and ultimately pled to a lesser charge, chances are “You parked on pavement.”

You are never too young to have a will

2010-05-20T19:07:00.000-07:00

Thinking about getting a will drafted up is often a dreadful and morbid thought. It’s something that a lot of people would rather not deal with, especially when they feel they have many more years ahead of them.

When deciding to create a will, a person does not have to be in their “Golden Years” to do so. In fact, the earlier a person puts a will in place, the better off they will be in terms of the overall security of their family’s best interest.

When a person has a properly crafted will in place, they are essentially protecting not just their monetary assets, but also making sure that that the proper person handles their estate once they pass and that their children, if any, are provided for in terms of guardianship.

Most people are under the assumption they need not be concerned about creating a will until they reach an advanced age. This train of thought is usually all well and good, but as we all know, life can throw us a few unsuspected “curve balls” and having a proper will in place is one of the best ways to ensure asset and family security.

Not only does a person better protect their assets by having a will in place, it also makes things extremely easier on the surviving family members. During the time of death, an individual’s family will no doubt be emotionally compromised. The added stress of dealing with a loved one’s estate can be overwhelming. The best way to help family members better deal with this stressful situation is to have a will in place that specifically outlines and delineates their wishes.

A typical will designates the individual’s Executor, which is the person or persons who carry out the legal acts specified in the will. The Executor, often a family member or trusted confidant, is the one who makes sure that the will’s wishes are fully executed, hence the name. By having a will in place, it gives the holder assurance that everything will be carried out according to his or her satisfaction upon death.

Practically speaking, the best time to create a will is when a person begins to start a family. Without question, one of the most important things in an individual’s life is the health and welfare of their children. If an unsuspected accident or illness occurs, one would ultimately want to be sure that their children are provided for, both in terms of finances and in terms of parental care. For example, if a tragedy occurs where both parents die in an accident, a will would then come into play to designate who will become the children’s legal guardian and caregiver. If a will is not already in place, the person(s) to take over as caregivers for said children are not always clearly defined. For this very reason, families should have a will in place as early as possible so that their loved ones are adequately protected and provided for.

On a personal note, I was 29 years old when my wife and I had our wills drawn up. This was how old I was when my first child was born. My father, who is also my law partner, encouraged me to draw up a will. I asked him why so early. His response was “You are never too young to have a will.”

Before it's Too Late, consider a Life Estate

2010-05-17T11:37:00.000-07:00

During their lifetime, people acquire many assets. These assets often include real property such as houses and land. They also may have a large amount of cash in savings accounts and CD’s, as well as stocks and bonds. If a person becomes ill and cannot provide for him or herself, they may need to be placed in an assisted living program. As often discussed in the news, these programs and facilities are not cheap to say the least and if a person can’t afford them outright, their assets are often used up in no time at all and the remainder of the costs are then subsidized by the government. Something like this could easily be avoided if a person plans ahead.

Once this happens, one of the best ways to avoid giving up rights to one’s assets is to set up a Life Estate in their real property.

A Life Estate is defined as an estate held only for the duration of a specified person’s life. With a Life Estate, the individual has full rights and privileges to the property, as if they owned it outright. They can remain on the property or will have rights thereof to it so long as they live. Once this individual dies, said property will revert to the holder of the remainder interest, such as the property in question. The “holder of the remainder interest” is typically the life tenant’s child, children, or some other trusted family member or friend.

Put in practical terms, the Life Estate allows an individual to keep their property without sacrificing the freedom to be medically cared for in the future.

For example, if somebody has a house or summer home that they want their children to ultimately inherit, the best way to ensure that this happens is to set up a Life Estate, with a reversionary interest going to the named children. Typical language would look like “To Walter for life, remainder to Jim, Judy, and Lisa.” In this scenario, Walter would have all rights and privileges to said property for the duration of his life. Upon his death, the property or “remainder interest” would be then transferred to Jim, Judy and Lisa in equal shares. By having this Life Estate, Walter would be immune to the property being taken from him in terms of equity if needed to pay for medical services an/or assisted living services in the future.

Currently, in New York State, there is a 5-year “look back” period for which a person is subject to. If a property transfer such as this is attempted within this look back period, the “equitable immunity” so to speak will not apply. For this very reason, it is imperative that an individual take advantage of the Life Estate well in advance and not procrastinate until the onset of illness.

As one approaches their “Golden Years,” it is important that they think about protecting the assets they worked all their lives for. Before it’s too late, seriously consider the option of a Life Estate.

Think Again before you Crumple Up that Traffic Ticket!

2010-05-13T12:56:00.001-07:00

A lot of people when they get a traffic ticket put it on the back burner and do not treat it very seriously. They do this of course until the court date rolls around and then panic often sets in. At this point, an individual often debates whether or not to simply “mail it in” and plead guilty or instead obtain an attorney and hope to plead to a lesser charge.

While it may be easier and more convenient to sign the back of the ticket, mail it in to the “powers that be” and be done with it, this is almost always not the best choice. By blindly pleading guilty to a traffic ticket, an individual risks points being placed on their license and an increase in insurance premiums often go hand and hand. This can further be of consequence to those who are prone to getting stopped for speeding. The more points a person has on their license, the less likely of a chance they may have in successfully negotiating a plea to a reduced charge.

This is all common sense of course, which is why it should be a no brainer to hire an attorney when getting a traffic ticket. The cost in legal fees will be far less than the increase in insurance rates if a ticket is ignored or a blind plea of guilty is entered.

A lot of times, people plead guilty not knowing of the consequences to only later find out that they now have numerous points on their license. They then tend to seek legal counsel to try to remedy the situation. At this point, an attorney can file what is known as a Coram Nobis, which is a request to the court to review its own judgment. This is an up hill battle to say the least and it can be expensive in terms of legal fees.

In short, when a person gets a traffic ticket, whether it be for speeding or running a red light or stop sign, it is wise to seek legal counsel right away in order to avoid unnecessary points on ones license and increased insurance premiums. To avoid financial burden and overall stress, be sure to think again before you crumple up that traffic ticket.

Why do you need an attorney for the purchase or sale of Real Property?

2010-05-10T07:36:00.000-07:00

In order to purchase or sell real property you must first enter into a written contract. A lawyer is then needed to review and approve the contract. They will make sure the parties to the contract are the ones buying or selling the property. They also make sure the property being sold is adequately identified and that the use of the property is specified in the contract, such as single family residential.

An important element for the purchaser is the mortgage contingency paragraph. A lawyer can explain what is needed to meet the contingency within the time frame set out in the contract.

If representing the purchaser he should recommend an owner’s policy of Title Insurance. The lender’s attorneys represent the bank and not the purchaser or seller. Most often a mortgage commitment will require Title Insurance in the amount of the loan with the lender as the insured. This does not insure the purchaser’s interest in the property.

If representing the seller the lawyer will review title to make sure it is marketable and/or insurable. This protects the seller who is warranting title to the property.

Structural, Pest and Radon Inspections should also be made. If there is a problem with any of these it is important to be represented by an attorney who can advocate on your behalf so as to resolve any issues.

If you are selling property, it is important to have an attorney who will prepare the deed and other necessary documents in order to transfer title to the purchaser. Conversely, if you are purchasing property, your attorney will review the closing documents and title to ensure you are being transferred good title free of any liens or encumbrances.

At closing the attorney will provide a closing statement which will include the costs and credits adjusted as of the date of closing for such items as taxes, water, sewer, fuel etc.

As you can see, there are a lot of verbose elements, factors and circumstances that arise during the transaction of real property. Buying or or selling a home can and often is a stressful process. This is why you should be represented by an attorney who will be there to advise accordingly.

Top 5 Things to look for in hiring a Traffic Lawyer

2010-05-04T04:34:00.000-07:00

Location. Make sure the attorney you choose has some familiarity with the area in which you received a ticket. Small Town and Village courts have a lot of idiosyncrasies that local attorneys are likely to know about and can better be of service to you. Also, the less travel time an attorney has to make to court, the less likely he/she is to charge.

Communication. Make sure that when you contact a traffic attorney, he/she is up front with you and conveys his/her advice in an articulate fashion. Most attorneys will offer a free initial phone consultation. Based off this consultation, size up what the attorney has to offer and if you establish a good rapport, this is a positive indication as to how the attorney-client relationship is likely to go.

Price. Be mindful that there are some attorneys out there who advertise a very low flat fee, but once you hire them, they change their tune and inflate the price to reflect your “special” or “unique” circumstances. The old saying holds true in that “You get what you pay for.” Don’t be so quick to hire an attorney solely on price, as more often than not, the lowest priced attorney is not necessarily the most competent attorney.

Referrals. Do an online search when hiring a traffic attorney. If someone refers an attorney by name, check them out for yourself, either by doing a google or bing search or by going directly to their website. In this day and age, most attorneys have their own website. If they don’t, that may tell you something right of the bat. By going to an attorney’s website prior to speaking with them, you will get a chance to go into the conversation already knowing something about them and when speaking to them, you can see if the information they give you “jibes” with the information that is on their site. You would be amazed as to how many attorneys don’t know that they even HAVE a website, let alone know what content about them and their services is on it.

Experience. Make sure that the attorney you hire to represent you in your traffic matter has actually handled cases like yours in the past. Many attorneys dabble in all sorts of areas of law and if traffic is not one they handle on a regular basis, they are not in a good position to advocate in your best interest. The attorney you choose does not have to have a legacy dating back to the 1800’s. Nor do they require “over 50 years combined experience.” More times than not, an attorney who has handled his/her fair share of vehicle and traffic cases will suffice. Just make sure that this area of law is one in which they consistently and continuously take on. You certainly don’t want to hire an attorney who has tons of experience in traffic law, but has been out of the loop for a good number of years. Like mentioned above, all City, Village, and Town courts operate a bit different and have their own way of doing things. By hiring a lawyer who is “in the know” will ultimately be of best interest to your legal needs.