Episodes

  • On July 5, 2017, Rob Kardashian, of the famous Kardashian TV family, uploaded multiple nude photographs of his ex-fiancee, rapper Blac Chyna, to his Twitter and Instagram accounts.

    Did Kardashian violate California's Penal Code section law banning the distribution of "revenge porn?" (nonconsensual pornography)?

    As in 38 states and the District of Columbia, California prohibits the intentional distribution of certain graphic photos and videos of another person without that person's consent.

    In this podcast, I will discuss whether Kardashian could be found guilty of this crime. Click here to read the full article.

  • A leading question is one that suggests the answer sought by the examiner.* For example: "You met with Mr. Williams the evening of July 25th, correct?" (LEADING) vs. "When did you meet with Mr. Williams?" (NON-LEADING).

    Leading questions are generally not permitted on direct examination, but are allowed on cross-examination. Young attorneys new to litigation frequently find it difficult to overcome objections to leading questions. In this episode, we'll explore leading questions:

    What are they? Why are they problematic? What can you do if the judge sustains an objection to your question?

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    * Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

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  • After three years of challenging legal education, incoming attorneys graduate from law school eager to take on the challenges of the profession and practice law. But does law school actually prepare attorneys for the rigorsof litigation practice?

    In this episode, I'm joined by my good friend and fellow attorney, Avi Ross. We reminisce about old times and recall our experiences entering the profession as new attorneys, the lessons we learned, and impart some tips (and warnings) for new attorneys entering the legal profession.

    Check out Justice Navigator: The Ultimate Video Litigation Tutorial for new attorneys and non-attorneys!

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  • On June 12, 1994, the bodies of O.J. Simpson’s ex-wife, Nicole Brown, and her friend Ron Goldman, were found outside Brown’s condominium in Brentwood, California. In what is considered the "Trial of the Century," O.J. Simpson was ultimately acquitted of the murders.

    The most iconic moment of the trial was the fateful decision by Deputy District Attorney Christopher Darden to have Simpson try on two gloves found at the scene of the murder and outside Simpson's house.

    The glove debacle, which actually lasted only a couple of minutes, was the penultimate made-for-TV moment. It had all the right ingredients—theatrics, intrigue, drama, and suspense. As with the JFK assassination and 9/11, millions of people worldwide can recall exactly where they were when they watched the doomed glove demonstration.

    This episode will cover:

    Why the gloves were so important; What physical evidence was contained on the gloves; Why the gloves didn’t fit; Could the gloves have fit?; Why it was such a horrible idea to allow O.J. Simpson to try on the gloves; The origin of the phrase, "If it doesn't fit, you must acquit"; What impact the glove fiasco had on the trial; and Much more!

    NOTE: This episode contains graphic descriptions of violence and use of profanity. It is not recommended you listen to this episode in the presence of children or if you are offended by descriptions of violence.

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  • If your dog bit someone, do not panic. One of the first things you should do is educate yourself about your potential liability to the person injured. Each state has its own laws on the topic, but there are a few common patterns and defenses, which we will discuss in this article. Your best option is to hire an attorney or, if representing yourself, research the law in your state.

    Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

    Humans have kept dogs as pets for over 12,000 years. For at least that long, dogs have been biting people. In the United States, there are 70-80 million dogs—that’s almost 1 dog for every 4 people.

    Although many bites result in minor injuries, dog bites can inflict serious injury. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these cases, roughly 20% require medical attention. The Healthcare Cost and Utilization Project notes that “Common principal diagnoses for dog-bite related hospitalizations included skin and subcutaneous tissue infections; open wounds of extremities; open wounds of head, neck, and trunk; and fractures of upper limbs.”

    Dog bites can be very expensive. The average claim rose to almost $40,000 in 2015.

    One-bite rule

    Although rare today, throughout history many states used the "one-bite" rule. Under this doctrine, an owner would not be legally liable injuries unless he or she had knowledge of the dog’s dangerous propensities, such as the dog biting someone in the past. In other words, the owner gets one “freebie” bite.

    In modern times, an owner could still be held liable if he or she had knowledge (or reason to believe) that the dog was dangerous. This may be due to the dog’s history, breed, or past behavior.

    While the one-bite rule is used in a small minority of states, two other legal theories are more common: negligence and strict liability.

    Negligence

    To prove liability for a dog bite injury under a theory of negligence, the victim must usually prove that the dog's owner/handler had a legal duty to use reasonable care to prevent injuries to others in public and those lawfully on his/her property. The general rule is that an owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability to people trespassing on the property. Depending on the state, the definition of “trespasser” differs tremendously, and may depend on such factors as whether:

    The property was gated, fenced, closed off, etc.; Warning signs (e.g., “NO TRESPASSING”) were posted; The person had a lawful basis to be on the property (e.g., mail carrier, delivery, police, etc.). The person was given implied consent to enter the property; and The age and maturity of the person injured.

    Next, the victim will have to prove that the owner breached the duty by failing to use reasonable care to prevent the attack. As with everything, this depends on the state’s laws, facts of the case, dog breed, size, and history of aggression and prior attacks. It may involve some or all of the following:

    Failure to properly leash the dog; Failure to muzzle the dog; Failure to control the dog; and/or Violation of a statute or regulation (e.g., leash law).

    As with any action for personal injury, the victim will need to prove that the breach of the duty of care caused the victim’s injuries.

    Dog-bite statutes (AKA strict liability)

    Many states have dog-bite statutes that impose strict liability for dog bites. Under this much harsher standard, an owner is liable for dog bite injuries even without proof that he or she failed to exercise reasonable care to prevent the attack. In other words, it is not typically a defense that you took all precautions to prevent the attack.

    In some states with strict liability, the victim must also prove that—prior to the attack—the owner knew the dog had a tendency to be dangerous (known as having "dangerous propensities"). This may include:

    Biting; Snapping; Snarling; Growling; and Fighting (humans or animals).

    Generally, it is not enough to show mere barking, chasing cars, or even jumping on people.

    Common Defenses in Dog Bite Cases

    The defenses available to you will depend on your state’s laws. That being said, here are a few common defenses to dog bite lawsuits (note that they may overlap):

    Statute of limitations

    Statutes of limitation limit the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. If the victim sued you after the expiration of the statute of limitations, you can move to get the case dismissed.

    If you are sued, check to see what the statute of limitations is for dog bite lawsuits in your state. If you have any doubts, contact an attorney and set up a consultation.

    Contributory/comparative negligence

    Under this defense, the victim was negligent and caused (or contributed to) the victim’s own injuries. Here are some examples:

    Ignoring a warning sign (e.g., "VICIOUS DOG" or "BEWARE OF DOG"); Approaching the dog against your warnings; and Hurting the dog (e.g., stepped on its tail, tripped over it, or hit it with a door);

    Assumption of risk

    The victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include:

    Working in a profession where dog bites are likely and foreseeable (e.g., dog groomers, kennel workers, animal control, veterinarians); Approaching a dog known to be dangerous (e.g., growling, foaming at the mouth, history of aggression).

    Provocation

    The “victim” provoked the dog into attacking. This may include:

    Kicking, hitting, or punching; Chasing; Taunting, teasing, or yelling; and Straddling or riding.

    Under these circumstances, you may have a defense to assert, even in states with strict liability.

    Contact your homeowner’s insurance (or renter’s insurance) agent right away

    If you have homeowner’s (or renter’s) insurance, contact your insurance company right away to report the claim. You may also need to submit a written declaration or affidavit. Many policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident did not occur on your property. Most policies require "prompt" notice of a potential claim, so do your best to notify your insurance company right away.

    Once you have filed the claim, the insurance company will determine whether you have valid coverage. If the victim files a lawsuit or threatens you with legal action, your insurance company will conduct an investigation, including interviewing the victim, witnesses, and reviewing any photographs and documents presented. It will then determine whether to settle the claim or defend you in a lawsuit.

    If you did not disclose your dog on your application, or have a breed that is excluded under your policy, the insurance company may deny coverage. In that case, you will need to consider hiring an attorney or representing yourself.

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  • Few agencies are more shrouded in mystery than the United States Secret Service. It even has the word "secret" right in its name!

    In this episode, we trace the fascinating history of this federal agency–from its origins as an investigative agency charged with combating the prevalence of counterfeit currency to its present day responsibilities of protecting the President, Vice President, and several other categories of protected people.

    Did we mention that President Lincoln was assassinated on the very same day he signed legislation creating the Secret Service?

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  • According to the Dave Nee Foundation, which promotes awareness of depression among lawyers, “lawyers are 3.6 times more likely to suffer from depression than non-lawyers.” In a February 2016 study published in the Journal of Addiction Medicine, it was noted that: “Levels of depression, anxiety, and stress among attorneys reported here are significant, with 28%, 19%, and 23% experiencing mild or higher levels of depression, anxiety, and stress, respectively.” Why are lawyers so unhappy? Why aren’t carpenters, plumbers, teachers, priests, or magicians the most unhappy profession? Is there something inherently different about the practice of law? Or is it the profession that attracts people prone to depression? To tackle these difficult questions, we interviewed Daniel Lukasik, an attorney who raises awareness of depression and helps lawyers obtain treatment.

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  • With the recent appointment of Ajit Pai to chair the Federal Communications Commission (FCC), the current regulatory regime of net neutrality is expected to be eliminated or significantly curtailed.

    The elimination of net neutrality may impact which websites and services you can access; the speed at which you can access them; and, ultimately, what it will COST you to access them.

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  • Dred Scott v. Sandford (1857) is widely considered to be the worst decision ever issued by the United States Supreme Court.

    Dred Scott, a slave, sued for his freedom on grounds that he had resided in the free state of Illinois and the territory of Wisconsin, thereby making him a free man.

    In a 7-2 decision authored by Chief Justice Roger B. Taney, the Supreme Court held that, as a descendant of slaves imported to the United States from Africa, Scott was not (and had never been) a United States citizen. Accordingly, he was considered property, and had no ground to bring a claim in federal court.

    The decision further struck down the Missouri Compromise Act of 1820, which had previously outlawed slavery in all future states north of the southern border of Missouri.

    At the stroke of a pen, the Supreme Court inflamed the already-explosive debate over slavery and precipitated the Civil War.

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  • In one form or another, you're exposed to waivers of liability almost every day. Ever wonder what exactly you're giving up with these contracts? Spoiler alert: A LOT!

    Even The Legal Seagull has a waiver of liability in its disclaimer. Check it out!

    In this episode, we discuss:

    The prevalence of waivers and releases; The difference between waivers and releases; Where you're most likely to encounter these documents; What to look out for when reviewing them; How all this impacts you; and How courts treat waivers and releases of liability.

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  • A prenuptial agreement (“prenup”) is a contract between two people, signed before marriage, detailing how assets and liabilities will be divided in the event of divorce or death. When this type of contract is signed during marriage, it is referred to as a postnuptial agreement.

    When it comes to uncomfortable conversations to initiate with your spouse-to-be, few discussions are more dreaded than that of whether to get a prenup. Will he think I’m greedy and obsessed with money? Will she think I don’t trust her? Will he doubt that I love him?

    Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

    Why people shy away from prenups.

    Some people worry that getting a prenup kills the romance by planning for a divorce before the wedding, at a time when the couple is madly in love and planning a future and family together. Others believe that a prenup is a self-fulfilling prophecy: Plan for a divorce and that is what you will get.

    For others, prenups do not necessarily present a moral or philosophical dilemma. They simply do not believe they will get divorced. This is not all that surprising. People tend to be optimistic—and love and passion sometimes cloud rational decision making. While most people know the frightening statistics—between 40-50% of marriages in the United States end in divorce—no one expects his or her marriage to fail.

    Many people never consider a prenup because they believe (mistakenly) that only the rich and famous need them. We’re both broke, why should we waste money we don’t have on something we won’t need? This is another common misconception. As discussed below, prenups can even be drafted to protect someone from his or her spouse’s debts, and to protect the spouse who is less financially stable.

    Marriage is like a business. You need to plan how to pay bills; feed yourselves; save money; manage debt; afford a home; and, eventually, start a family (not necessarily in that order). If you do not bring up the “M-word” (money) prior to marriage, it will come up after. I can personally guarantee that.

    Even if you ultimately decide not to get a prenup, strongly consider meeting with an attorney to discuss whether a prenup is in your best interests. Many attorneys offer free consultations for that purpose.

    Community property vs. equitable distribution states.

    There are two different systems for distribution of assets upon divorce—community property and equitable distribution. As of 2017, community property is the law in Arizona, California, Idaho, Nevada, New Mexico, Texas, Louisiana, Wisconsin, Washington, and Alaska (optional). This amounts to about 25% of the population of the United States. In community property states, income, assets, and debts obtained during marriage are split equally (50-50) between the spouses.

    In the remaining states (the majority) of the United States, the prevailing law is equitable distribution. Under this system, the judge has broad authority to distribute assets and liabilities in an equitable (fair) manner. Depending on the state, the judge may consider, among other things:

    The length of the marriage; Each party’s health, education, training, and age; and Whether a party is at “fault” for the marriage ending (e.g., adultery, abuse, etc.)

    SCENARIOS THAT APPLY TO ALMOST EVERYONE

    Protect money and property acquired prior to marriage.

    If you have assets you acquired prior to marriage, you probably want to protect them. This may include bank accounts, stocks, bonds, real estate, vehicles, personal items, jewelry, or a trust fund. This is especially important in community property states.

    Here is an example: Peter and Lois are about to get married. They live in a community property state. Peter has $25,000 he inherited from his mother and another $30,000 he saved while working at the local ice cream parlor.

    In theory, the assets acquired prior to marriage are Peter’s separate property and Lois would not be entitled to them upon divorce. The problem arises when assets get commingled, making it difficult to trace the source of the original assets. For example, Peter and Lois may:

    Fund joint bank accounts with assets they are bringing into the marriage; Mix Peter’s inheritance and savings with additional income earned during marriage (wages, bonuses, etc.); Use the funds for a down payment on a home; Invest money in stocks, bonds, and real estate; and Use funds to pay off bills and mortgage payments

    As the months and years go by, it becomes more and more difficult to determine what portion of the assets originated from Peter’s premarital assets. A well-drafted prenup may protect Peter from a contentious and expensive divorce and from losing a significant portion of his premarital assets.

    Protect income and assets obtained during

    Depending on the state, a prenup can protect income you earn during marriage and even limit the amount of alimony your ex-spouse can collect.

    Here is a simple (perhaps over-simplified) example to illustrate this point:

    Tarzan and Jane live in a community property state. Prior to marriage, Tarzan had $10,000 in savings, which he maintained in a separate account throughout the marriage. During their 20-year marriage, Tarzan refused to work, spending every day swinging on trees, eating bananas, and pounding his chest ferociously. With Jane working three jobs, the couple managed to save $200,000. When Tarzan filed for divorce, he kept his $10,000 premarital savings and half ($100,000) of the couple’s joint savings.

    I am NOT suggesting that Tarzan should not be entitled to anything because he did not work. Many families consist of one wage-earning spouse, with the other primarily responsible for raising children and managing the household. In some families, a spouse cannot work due to disability, illness, or incapacity. In this particular scenario, however, Tarzan does not appear to be contributing much of anything. A prenup could have eliminated Tarzan’s share of Jane’s wages, or at least limited it (e.g., 15% instead of 50%).

    Ensure your wishes are carried out if your will is invalidated.

    You might be reading this article and thinking, “When I die, my will already spells out who gets what.” Keep in mind that a will can be contested. If the will is successfully contested and invalidated by the court, your assets may be distributed in accordance with a prior will or your state’s intestate succession law. Here is an example:

    Martha and George are a childless married couple living in the State of Atlantis. Before they married, Martha had $50,000 that she won in the Atlantis lottery. Martha’s will states that upon death, the $50,000 should go to her sister Abigail. Martha is killed in a duel. George challenges the will on grounds that it did not comply with Atlantis law because it was not signed and there was only one witness instead of two. The judge sides with George and invalidates the will. With no valid will, Atlantis’ intestate succession law applies. George inherits everything, including the $50,000.

    Wills can be contested on numerous grounds, including but not limited to:

    Failure to comply with formalities; Undue influence; Lack of capacity; and Fraud

    If Martha and George had negotiated a prenup listing the $50,000 lottery prize as Martha’s separate property, George would not be entitled to that $50,000 upon her death. The moral of the story: Before participating in a duel, make sure your affairs are in order. Just kidding, do not participate in a duel! The real moral of the story: A prenup can serve as a “backup” if your will is found to be invalid.

    Reduce or eliminate uncertainty, extensive litigation, fighting, and bitterness in a divorce proceeding.

    When negotiating a prenup, soon-to-be spouses anticipate potential points of disagreement and determine in advance what will happen to their assets (and liabilities) if they divorce.

    When you are in love and planning a future together, discussing the division of your assets upon divorce can be a very uncomfortable conversation. But if you think that is hard, imagine that same conversation during a bitter divorce proceeding where each of you is represented by an aggressive attorney. Did I mention that each attorney bills at a rate of hundreds of dollars per hour?

    In law and love, nothing is certain; however, a well-drafted prenup can eliminate or reduce unpredictability, conflict, and financial loss. The few hundred—or thousand—dollars you save by not getting a prenup could cost you tens—or even hundreds of thousands—in attorney’s fees alone.

    COMMON SCENARIOS WHERE A PRENUP MAY MAKES SENSE

    You or your spouse have children from a prior relationship.

    Children from a prior relationship can introduce uncertainty and tension into your upcoming marriage. If I get divorced, will my spouse take money that I saved for my kids? If your soon-to-be spouse has children, he or she may have the same concerns.

    Whether you discuss it with them or not, your children may also be anxious. Will dad’s new wife get all of my future inheritance through divorce or death? What will happen to Grandpa’s priceless watch?

    A properly-drafted prenup can substantially reduce uncertainty, protect your children’s financial future, and allow everyone to breathe a sigh of relief.

    You own a business.

    A prenup can help protect the business you worked hard to create and grow. Even if you built a successful business prior to marriage, you could still face a claim by your ex-spouse that he or she is entitled to partial-ownership or some interest in the business. This is especially true in community property states if joint efforts were invested to support and build the business.

    To prevent or reduce the likelihood of this scenario, a prenup can specify that some (or all) of the business is your separate property—even if your spouse contributes money and labor into the business.

    If you have business partners, they will probably be thankful that you did some planning. Imagine this scenario:

    Mario and Luigi are general partners in a plumbing business. Mario owns 60%; Luigi owns 40%. Mario’s wife, Peach, files for divorce, and ends up owning half of Mario’s share. Now, Mario owns 30%; Peach 30%; Luigi 40%.

    Neither Mario nor Luigi can stand Peach, who does not know a darn thing about business or plumbing, and who left Mario for Toad, a young Salsa dancer. Because the three do not always agree on company decisions, they are often deadlocked, with no one holding a majority. Every month, the brothers must write Peach a check for her share of the business’s income. Mario and Luigi rarely enjoy each other’s company anymore. Mario cries himself to sleep most nights and wishes he had negotiated a prenup with Peach.

    Your future spouse has a lot of debt.

    Generally, a person is not liable for debts incurred by his or her spouse prior to marriage (again, read the disclaimer!). Nevertheless, if you and your spouse end up commingling your assets (e.g., joint bank accounts, etc.) it may be difficult to determine who owns (or owes) what. Moreover, if you decide to refinance or consolidate your debt, things get even murkier. The last thing you want is to be liable for your ex-spouse’s gambling debts, alimony from a previous marriage, back taxes, and more.

    Consider including a provision in the prenup that all debt acquired prior to marriage will remain separate and that each spouse will not be responsible for debts acquired by the other during the marriage.

    You or your future spouse plans to obtain (or is working towards) an educational/professional degree or certificate.

    Each state has its own laws regarding the division (or non-divisibility) of degrees and licenses upon divorce. Degrees and licenses are inherently expensive—often costing over $100,000. They are also extremely valuable because they significantly improve earning potential and employment prospects.

    Oftentimes, a person will sacrifice his or her career to financially support a spouse in obtaining a degree or license. This leaves the supporting spouse vulnerable in the event of a divorce. On the other hand, the spouse who obtained the degree will continue benefiting from it for the rest of his or her life.

    Here’s another hypothetical: During her marriage to Mark, Cleopatra earned her nursing degree. Most of her tuition was paid for by her parents and some money she inherited from her grandparents. They decide to get divorced. Mark claims that based on their state’s laws, he is entitled to a portion of the nursing degree’s value (in addition to Cleopatra’s future income) because the degree was obtained during marriage.

    A decent attorney could have anticipated this problem and drafted a prenup specifying how the degree should be valued and divided upon divorce.

    You are planning to sacrifice your career to raise a family and/or support your spouse.

    It is not uncommon for a person to sacrifice his or her career to raise children or benefit a spouse’s career. This may include relocating, quitting a job, or giving up a career.

    Take this example: Josephine and Napoleon fall in love and decide to get married. Josephine quits her job as an advertising specialist in Los Angeles (with a salary of $80,000 per year) to move to Cleveland and start a family with Napoleon. Before she quit, Josephine was on track to be promoted to junior vice president and get regular increases in her salary. Napoleon just started his career as an architect, also making $80,000 per year. With Napoleon as the breadwinner, Josephine focuses on raising their two children, Genghis and Khan.

    Ten years pass, and the couple decides to divorce. Now, Napoleon earns $250,000 per year and has a promising career. Josephine, on the other hand, sacrificed her career years ago and must now start from scratch, probably making significantly less money than Napoleon—and less than she was making before.

    Without a prenup in effect, Josephine is at a significant disadvantage and may have a hard time supporting herself.

    Conclusion

    If you are planning to get married, hopefully this podcast has not scared you away from the altar. Prenups are not for everyone; however, a sensible prenup can protect your financial future, reduce or eliminate uncertainty, and make divorce less contentious and expensive.

    Even if you think divorce is unlikely, do yourself a favor and consult with a family law attorney to determine whether a prenup is right for you.

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  • If you died tomorrow without a will, who would inherit your assets? Who would be your children's guardian? What would happen to your remains and who would carry out that unenviable task? How would your debt and final expenses be paid?

    Do you really need a will, even if you're broke? What if you just want everything to go to your spouse?

    Our guest in this episode is trusts and estates attorney Adam Becker. Adam answers all these questions—and more—to help you plan for the inevitable.

    What is a will?

    NL: Let’s start with the basics. What is a will?

    AB: A will is a legal document that lets you decide who gets what, and at what time after you’ve passed away.

    NL: What other terms are there for a will?

    AB: Sometimes you’ll hear people refer to a living will. That is a different document that has more to do with healthcare decisions. You will also hear people refer to a trust, and there is a lot of confusion sometimes between what is a will, and what is a trust. The truth is that they’re related documents that usually work together.

    NL: You mentioned living wills. What is it called when you simply have a will that deals with your assets, and what will happen to them when you die?

    AB: We’d probably call that a testamentary will. That just means when you die there’s this piece of paper that tells people: “Here’s what I want done when I die. Who gets my assets, who is in charge of giving away those assets, who is going to look out for my children,” that’s a guardian named in a will. That’s what you typically would think of in a will that you might see in a movie or in a TV show.

    Who needs a will?

    . . .

    AB: Anybody who has assets needs a will, and certainly anyone who has children needs a will.

    NL: A lot of people . . . have said to me, “well I’m broke, I don’t have anything to give.” Or they’ll say, “I don’t care, I want my wife to get everything.” Would you agree that if you’re broke—or if you’re married—you don’t need a will?

    AB: No. I think nowadays there are online services that can do a good job of providing just a will very cheaply. Surprisingly, you can also write out your own will. I’ll speak for the State of California where I practice. If you take a piece of paper, and in your own handwriting write it, date it, and sign it, that is a legal document that would express who gets what when you pass away. Now, there’s drawbacks to doing things by yourself, and writing things out can often have mistakes, but I would say it’s better than nothing in some cases.

    Bank account beneficiaries

    NL: Specifically, for people who just want their spouse to inherit everything they have, do you think it’s important for those people to draft wills?

    AB: Well, there are ways around a will. For example, a bank account. I can name my spouse on my bank account, or as the beneficiary of the bank account. Then, when I die, she just shows up with my death certificate and claims the assets. So, we didn’t need a will in order to transfer that asset. I could put her on the deed to my house. I can get around having a will if I want to give everything to my spouse. But if I have other people that I want to make distributions to, or if I forget one of those assets, I forget to put her on one of those assets, then I will wish that I had a will, because that can transfer to her after I die.

    NL: What happens if there’s a conflict between the person you listed as your beneficiary, and your bank account, and what’s written in your will? I can’t remember who I listed for my bank accounts. I hope it’s you Olivia, but I probably need to go back and check.

    OL: You’re in big trouble if it’s not!

    AB: That’s a more complicated question, but I tell people to look out for this all the time. We draft a will, then the next step is to make sure that all our beneficiary designations line up with what we’ve said in the will. Because if there is a difference [and] that company that has the beneficiary designation on file, they are going to get the death certificate when you die, and they are going to say, “Sorry Neer, it says here that your mother is supposed to get this asset. Either go to court and tell us otherwise, or we’re paying this to your mother.”

    Preparing a will

    . . .

    AB: Like I mentioned earlier, there are online services that would help you to prepare a will. Usually they have a series of questions that you answer, and it fills out a will for you, so that would be one way. There are good wills that you can get online. [In California and some other states], you can also write a will yourself in your own handwriting, or you can go to an attorney, and have an attorney assist you through the process of preparing a will, or an estate plan.

    NL: When should you consider getting an attorney, versus . . . going to one of these online services, or getting a “fill-in-the-blank” printed form?

    AB: If you have children, I would certainly want to run my will by an attorney to make sure it was done correctly; to make sure that they are going to be taken care of by the people that you use; and, that the assets are going to get to them in the way that you want. If you have substantial assets, and by that I think I would say anything over $150,000, I’d want an attorney to review it. But I know a lot of attorneys who will just prepare a will for a very reasonable price, not much different from what you could pay for it online.

    The importance of wills for blended families

    NL: Let’s talk a bit about blended families where you have children that are the children of both people in the relationship, and then maybe they have children from prior marriages, or prior relationships . . . I want to bring up a hypothetical to illustrate, and flesh out these issues . . . Bob doesn’t have a will. Bob is married to Heather. They have two children together, and Bob has two children from a prior marriage. Bob would like everything to go to his wife, and he figures that’s what will happen. If Bob gets run over and killed by an ice cream truck tomorrow, what happens to his assets without a will?

    AB: So, Bob is married, but he’s got two children from a different marriage, and two children with Heather. If he dies tomorrow and he’s living in California, which is where I practice, everything would not go to his wife, Heather. Some people would be surprised to learn that. No will is there, so he can’t say who gets what. California law says that one-third of his assets would go to his wife, and two-thirds would go to his other children.

    NL: That’s clearly not what he intended for here . . . Assuming he had drafted a will, how could this have prevented the problem?

    AB: With a will, he could choose who gets what in any amount that he wants. Now, there’s some complications with community property and separate property. But just keeping things very simple, in a will, Bob gets to say “This is who I want to have my assets—and here’s the way in which I want them to get them.”

    Concerns involving minor children and young adults

    NL: Does the age of the children make a difference as far as planning whether or not you should get a will, and what the will should provide?

    AB: It certainly does. If you have minor children, they can’t receive the assets until they’re 18 years old. Someone can pay for them, and provide for their needs, but they can’t get the assets until they’re 18 . . . I have a friend I was speaking with, and he told me this story of a client of his who came to him and said, “My son is the beneficiary of a wrongful death lawsuit. His mother had passed away when he was very young because she had been hit by a driver, a city employee who was drunk.” They settled the lawsuit, and now he was going to inherit from the city a couple million dollars. He said, “My son is 17 and a half, and I don’t want him getting all this money, what can we do?” Well, sadly, there’s nothing you can do. The child is going to get that money, because the contract is between the city and the child.

    But my friend said, “I met with [the father and child] in the hopes of convincing the child to put some of these assets into a trust, or some other vehicle where the money wouldn’t be spent. Because who wants their 18-year-old to receive a couple million dollars? So he said, “I met with him, and we convinced him the right thing to do was to put this money up in a trust until he’s at least age 25. But his education would be paid for, his health would be paid for, if he needed money for groceries and things like that, that would be available. But he wouldn’t touch the money until he’s at least 25.” At the end of their meeting [the son] said, “Okay dad, that sounds like a good idea, except I want to keep enough money to buy a condo in Vegas and a Ferrari.” That illustrates to our clients why receiving a lot of money at a young age is usually not a good idea for children.

    NL: In effect, what you’re saying is that sometimes you want to protect your kids from themselves?

    AB: Correct. I always talk about two types of creditors with clients. One, up to a certain age, you want to protect people from themselves—they are their own worst creditor. Then, generally after a certain point, we’re worried about other outside creditors, and there’s ways we can help protect against those. But most people agree that until some age, 25, 30, 35, children are going to need guidance in how their money is spent, and you can set that up with the use of estate planning documents.

    . . .

    Making sure your wishes are carried out

    NL: Let’s say that: Bob’s son, Bobby Jr. . . from a prior relationship . . . [and Heather] have an on-and-off-again relationship—a very tense relationship—because Bobby Jr. and Heather just don’t get along. Bob really wants to make sure that Bobby Jr. is taken care of. What can he do as far as planning, crafting a will that will protect Bobby Jr., and make sure that he gets some money as well?

    AB: This is a common question that I hear from persons in a blended marriage, where they have children from a prior relationship. They say, “Adam, how do I take care of my children from that first relationship. I know my spouse . . . [is] not going to take care of them after I go . . . what do I do to provide for them?” There’s a couple things you can do. First, you could give assets directly to those children when you die. So, in your will, you would say, “Upon my death, Bobby Jr. gets X.” But unless you have a lot of money, oftentimes those assets are going to be needed for your spouse.

    You could give the assets to your spouse, and just hope that she does the right thing in this scenario and gives them to Bobby Jr., but in my experience, that doesn’t usually happen. Other “good reasons” come up for why Bobby Jr. doesn’t need that money anymore. I’ve found that a simple solution can sometimes be a little bit of life insurance. You buy some life insurance, name Bobby Jr. as the beneficiary upon your death. If you want to be a little more sophisticated you’d put that into an insurance trust. Then, when you die, that money is there for Bobby Jr., and he gets it, he’s paid out. The second spouse can go her way, and provide for your joint children as she sees best.

    Wills and trusts: What is the difference?

    . . .

    AB: A will is just a piece of paper until you die. One of the big differences between a will and a trust is that a will is only effective upon your death. A trust, on the other hand, can be created while you’re alive. It’s created by transferring assets (like a bank account or the title to your home) to the name of the trust. Now it’s funded, it’s called a living trust because it works while you’re alive. A good reason why you might want a will while you’re alive is if you become incapacitated. Then, somebody you’ve named in the trust, called a trustee, can step in and manage your assets for you in the event you’re incapacitated, you’re in a coma. Who can manage the family business, who could sell your home, who could cash out bank accounts, who could provide for you and your family if you’re not able to do that, that’s a trustee. If you just have a will, we have to wait until you die until we can step in and manage those assets.

    Who makes your medical and financial decisions when you are incapacitated?

    NL: If instead of dying, Bob ends up in a coma or a vegetative state, what happens? Who makes the decisions for him if he didn’t have a will?

    AB: . . . If he had a power of attorney that would let somebody act on his behalf in financial matters. If he had a healthcare directive in California they could make decisions for his healthcare. But if he doesn’t have any of those things then somebody is going to have to go to court to get what’s called a conservatorship. It’s expensive, and there’s fees. You’ve got to pay the attorney, pay the court, you’ve got to pay an accountant maybe to prepare an accounting of his assets. A conservatorship would then allow somebody to act on Bob’s behalf, to now make financial decisions, and decisions about his person, about his body, what happens, what kind of healthcare is he going to receive . . . We wish he would have had a power of attorney document, or a healthcare directive, or even a trust to manage his assets.

    NL: It seems that whatever money he saved by not drafting a will is now going to cost his family a lot to hire an attorney, and go through this conservatorship procedure—which is not cheap—so it does seem that even though a will is an investment, you’re saving money later on, or saving money for your family in the event that something goes wrong.

    AB: Definitely. You’re also saving frustration, from having to wait on the conservatorship to be approved. You’re saving time, and making it much easier for your family to provide for you if you do become vegetative. You’re making it much easier for your family to provide for you if you are in a coma.

    NL: How long does it take for you to establish a conservatorship, and what happens to Bob in the meantime? I mean, he’s chilling in the hospital bed.

    AB: If everyone gets along, the procedure shouldn’t take too long. But in our scenario, where we had Heather and Bobby Jr., who were at odds with one another, if Bobby Jr. is going to contest this conservatorship, to say that he’s in a better position to care for his father, then [Heather], who is now looking around or something like that, it could take quite a while to resolve this conservatorship matter. So again, if Bob had set these things up ahead of time, there wouldn’t be that issue facing the family.

    Planning for end-of-life care and decision-making

    NL: Do you want to be kept alive artificially? Do you want your heart to be restarted? Can you talk a bit about what important end-of-life decisions one might want to take into account, and how a will can provide for that?

    AB: There’s a lot of important end of life decisions. But I think there’s generally three big ones that people are concerned with the most.

    First, what do you want to have happen with your remains? Are you going to be cremated? Are you going to be buried? Do you have specific instructions? I had a friend tell me one time he wanted to be cremated, but then I was to take his ashes and scatter them in center field of Dodger Stadium, to which I laughed. I definitely don’t think that’s possible, but those are the directions he wanted.

    [Second] is organ donation. You can say in advance, especially if you’re younger and healthy, “If I die, I want my organs to be donated.” Now, your family doesn’t have to make that decision. Is that something they object to, they would want to do on your behalf? You can just tell them ahead of time.

    Third, the end-of-life choice. Do you want to be kept alive as long as possible? Do you want to have your life taken off of life support as soon as they can? Or, like you mentioned, do you have other specific measures? “I want to receive water—but not food.” “I want painkillers—but not something else” All of that you can spell out in a healthcare directive so your family doesn’t have to try and figure it out.

    What do you want done with your remains (e.g., burial, cremation, organ donation, etc.)

    NL: When it comes to the remains that’s also something to consider. Because I, for example, don’t care. If there’s anything that can help someone—whether it’s my eyeballs, corneas, ears, heart—they are welcome to take it. But I totally understand—and I respect—that for a lot of people, there’s parts of their body that are very personal, and that they wouldn’t want to give up.

    There are obviously the eyes and facial features. They do facial transplants now, and that could be very weird for your family, or uncomfortable knowing that your face is on another person. Likewise, for people who have experienced horrific accidents, they have genital transplantations, which I think most people would find kind of weird and would want to make a specification either way in their will. So, I think that’s definitely something you want to include as well, as far as what should be donated, and what should they not take from you.

    AB: In a living will, or a healthcare directive, you can be as specific, or as broad as you want. You can just say simply “I agree to all organ donation,” and now your family gets to make those decisions. Or, you can say, “I agree to organ donation, but I want to keep my eyes, and a few other parts too.” So, ahead of time, you can tell your family what you’d like done. We were saying during a break, I think it was Olivia, one of the important things is not to have any surprises. You don’t want to surprise your family with any strange requests once you’ve passed away.

    NL: Too late for that, my will is drafted. Actually, Adam, I wanted to ask you . . . You did the will for Olivia and I, and I recall there being a conversation about what parts of the body to donate. Olivia specifically…

    OL: Your heart belongs to me!

    NL: Okay. Well, what I was thinking was that I recall [Olivia] saying that [she] didn’t want [her] brain transplanted into another person. Adam, is that a real thing? Can they do brain transplants yet? If you don’t want to get in the middle of this lover’s quarrel, I completely understand.

    AB: Well, Neer, I don’t know if Olivia is going to want your brain, but whether or not they can do a brain transplant, you’d have to speak with a neurologist. To answer it from the legal perspective, you can put whatever restrictions you want into your healthcare directive.

    NL: . . . Let’s get back to Bob quickly. Let’s kill Bob again . . . he’s dead and now there’s no will, so there’s no provision as to what should be done with his remains. Bob wants to be cremated—that’s what was done with his parents’ remains—that’s just what he wants to do. Heather, on the other hand, has strong beliefs that when someone dies they should be buried. Bobby Jr. watched a really cool YouTube video about how some people are being frozen so that in the future—if it’s possible to resurrect them—they are kept intact. Now we have a dispute: There’s Bob’s wish, which is not written anywhere in a will. There’s Heather’s belief that people should be buried. Then, there’s Bobby Jr., who wants to deep-freeze dad. What happens under the law in this scenario?

    AB: Well Neer, I’ve had several people tell me that they want to be frozen—like Walt Disney or Ted Williams—when they die. I’ve always said, “That’s fine, but how are you going to pay for it?? I don’t think freezing is free yet, so someone has to pay for that. So, I’d probably say to Bobby Jr., “Unless there’s enough money in this estate to pay for a frozen father, your idea is no good.” Ultimately the answer, as you know with all legal things, is: If you can’t decide, then you end up in court, and the judge will tell you what to do. So, in this case, they’re just going to have to work it out. The family will have to compromise. This is another good reason of why having a will, or a healthcare directive would avoid this dispute.

    NL: What happens if they just can’t compromise? Heather and Bobby Jr. each have their own opinions, they try settling, mediating, nothing is happening, they just can’t agree.

    AB: Then they’re going to end up in court explaining to the judge why their reason for Bob being buried or cremated is the most important, and the judge will make a decision.

    The right time to get a will

    NL: In your law practice, when do most people come to see you for a will?

    AB: I’ve joked that if we were to ever advertise, we should do it in a travel magazine. Most people come to see me right before they’re going to take a long trip. I guess they’re thinking [that] if the plane goes down, they want to be prepared. The second most common time people come to see me is after somebody they know has died, and now it’s on their mind.

    I guess the third most common would be children who are just concerned about the ailing health of their parents; they want to make sure the affairs are in order before anything happens to mom and dad. But really, if we did it right, everyone should do this early. It is much easier to get things in place earlier in your life than to wait at the end when you have more complicated family arrangements, and a more complicated maze of assets.

    When you have a child, or are about to have a child is a great time to get your affairs in order. You need to choose a guardian. My wife and I took three years to decide who was going to be the guardian. Now, I don’t care so much that I have children, but before the first one came, we just could not decide who would be the guardian of our children, and made it much more complicated than we needed to.

    Before you buy a home is a good time to do your estate planning. Once you own a home, the post-death administration is more complicated because you owned real estate than before you bought the house.

    Before you inherit assets is a good time to set up an estate plan that is going to provide for your own family. I’ve also found recently with children going to college away—out of state or in a foreign country—is a good time to have that child set up a very simple will, or to at least give you power of attorney for their own healthcare, and their own financial decisions.

    When is it too late to get a will?

    NL: . . . Obviously, when you’re dead it’s too late to get a will, and if you’re incapacitate completely, or if you’re in a coma. But is there anything in between where it’s just too late, you just have to wait it out?

    AB: One of the hardest areas for us as estate and trust attorneys is determining when somebody has lost the capacity to sign a will or a trust. It’s a very gray area, it’s heavily litigated. To avoid any of that litigation, you want to have documents signed well in advance—so there’s no questions as to whether or not your parents—or you—had capacity.

    NL: Can you give an example of when someone has questionable capacity, something that could be challenged in a court of law?

    AB: Someone who is not able to make decisions for themselves. They live with the assistance of others, they have a documented diagnosis of dementia or Alzheimer’s. Now, that doesn’t mean they can’t sign a legal document, because they can have moments of clarity. It just means you’re in for a probable lawsuit to try and prove that they did have capacity.

    –END OF INTERVIEW—

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    If you would like to learn more about living wills and health care directives, we did a separate episode on that topic. Enjoy it on iTunes, Stitcher, or Soundcloud.

  • Driving under the influence of alcohol or drugs (DUI) is illegal in all 50 states. Some states refer to this as driving while impaired or driving while intoxicated (DWI).

    I interviewed Deputy Public Defender Omid Haghighat about the ins and outs of a DUI / DWI case, including potential defenses. Although we covered many common DUI / DWI issues (that may be applicable in your state), parts of this podcast pertain specifically to California law. Please read The Legal Seagull’s disclaimer before proceeding with this podcast.*

    Here is a transcript of the interview, slightly edited for reader comprehension and enjoyment:

    Types of DUI / DWI charges

    NL: Omid, welcome to the show.

    OH: Glad to be here.

    NL: What are the different types of DUIs? We all know about the 0.08% blood alcohol content level. A lot of people tend to think that’s pretty much the prime ingredient in most DUI convictions. What are the different types?

    OH: In any alcohol DUI charge basically you’re dealing with two charges. You’re dealing with one that says that you were driving and you had a blood alcohol level of over 0.08%. You have another charge that says you were driving and you were too impaired by either drugs, or alcohol, or a combination of both, to drive safely. It’s a little more complicated than that, but those are essentially the two types of charges.

    Let’s assume that we’re just talking about alcohol right now. Let’s say someone is driving, they get pulled over, they do a breath test ultimately, and they have a 0.14% blood alcohol level, according to the breath test machine. They can be charged with both driving with over a 0.08%, and being too impaired by alcohol to drive safely. If we’re talking about your blood alcohol level we’re talking about having tested it with either a breath test machine, or a blood test. So insofar as you’re using some scientific method to test your blood alcohol level, those are scientific.

    When it comes to being too impaired, or rather driving under the influence without the requirement of a blood alcohol level, there are a number of tests that officers use that are not testing your blood, or your breath, but in fact are testing your ability to do certain field sobriety tests, or otherwise. This is all regulated by the National Highway Traffic Safety Administration. Some of the tests that they have designed are said to be scientifically validated. So insofar as those tests are done correctly, and are scientifically validated, many prosecutors and officers will say that those are scientific tests as well.

    Getting pulled over: the initial stop

    NL: So we’re going to get into this whole area of the field sobriety tests, which is one of the things that most people know about, the whole “touch your nose,” “recite the alphabet backwards,” “try and walk in a straight line,” we’ll get to that. But it sounds like there might be some dispute over whether these tests are all valid, or that they successfully measure impairment. Let’s walk through the entire process. Let’s start with the time when someone is driving a car, they’ve left a bar, or their home, wherever it is that they’ve been having a good time, and they get pulled over. Now, there’s one of two ways this could happen. One is that they get pulled over the way everyone is probably used to getting pulled over, and then there’s the DUI stop. So why don’t we start with that. Take us through it. What happens at that point?

    OH: Well I just want to add that sometimes it’s not that they’re pulled over, but sometimes they get into a car accident. Then, when the police officers arrive and do a little investigation they start to realize that maybe one of the individuals in the car was under the influence. So that’s another way that essentially someone can have an officer initiate a DUI investigation.

    NL: Let’s start first with the whole DUI stop. The type that many of us in L.A. are used to, where you’re driving and all of a sudden you see a sign that there’s a sobriety checkpoint. What are your rights essentially when you see a sobriety checkpoint ahead? Is it illegal to turn your vehicle around to try to avoid it? I’m not suggesting that anyone should do that, but only to see what are the rights that are available to you as of the time that happens.

    OH: Well as far as I know, a DUI checkpoint isn’t like a black hole. If you come within the vicinity you aren’t required to be sucked into its oblivion. If you do turn around, however, an officer can see that, and oftentimes they do have officers in the outskirts of those checkpoints looking for people who are turning around. If the officers do see you turning around, that can raise their suspicions, and they can attempt to pursue you, and see if you commit a Vehicle Code violation, and then pull you over and initiate a DUI investigation. Otherwise, if you drive into the DUI stop—you’re there—and you have to comply with the officer’s requirements.

    Suspicion of alcohol / drugs: Police officer initiates DUI / DWI investigation

    NL: Now once you’re either pulled over, or you come to a DUI checkpoint, or it’s an accident, there comes a point when the police officer suspects you’ve been drinking, or at least claims to have suspected that you were drinking. What types of questions are they allowed to ask at that point in the investigation?

    OH: Well an officer can ask you anything. This is assuming that you’ve come into a legal checkpoint, or if you’ve legally been pulled over. An officer can ask you anything. The kind of questions they’ll ask is:

    “Where are you coming from?” “Have you had anything to drink tonight?”

    OH: The “Where are you coming from” is a question meant to see if you’re coming from a bar, and that will make them suspicious. But essentially they’ll ask these questions of anyone if they’re slightly suspicious of a DUI, but they don’t really begin to trigger their DUI investigation, I think, until they see what I consider the Holy Trinity of objective symptoms of drinking.

    NL: What’s the Holy Trinity?

    OH: I call it the Holy Trinity, they’ll put this in the report:

    They either smelled an alcoholic beverage on your breath; They’ll notice that you had bloodshot, red, watery eyes; or That you had slurred speech in responding to any of their questions.

    NL: I have read, without exaggerating, about 5,000 to 10,000 police reports in my career thus far. I strongly believe that there must be some bank that they draw these from, or that they’re copy-pasted, because I cannot tell you how many times I’ve seen this described the exact same way. “I detected a strong odor of alcohol emanating from his person.” Do you have any idea how this happens, that all these police officers tend to describe this in the exact same way?

    OH: I have some opinions. I’ve seen this happen, and I think there are two reasons for it. You’re never going to see a police report without these three things, because no officer is going to do a DUI investigation over someone that doesn’t seem like they’ve been drinking alcohol, so you’ll never see that police report. But on the other token, officers need to justify the DUI investigation, otherwise the results of their DUI investigation can be suppressed in what is called a suppression motion. That’s a Fourth Amendment violation motion. Because they can be said to have no reasons to prolong what should have been a routine traffic stop, and initiate a DUI investigation. So it depends on how cynical you are, really.

    Reasonable suspicion to pull you over… Probable cause to arrest you

    NL: This gets us to one of the main points here. So a police officer needs probable cause, is it, or reasonable suspicion of alcoholic impairment before they resume with any type of investigation, or asking you to submit to testing?

    OH: If a police officer pulls you over, all he needs is some reasonable suspicion to pull you over, that you committed some Vehicle Code violation, or that you might be under the influence. Let’s just talk about that. What does it take to be pulled over? Some people get pulled over for very obvious “under the influence” reasons. They are straddling lanes, maybe they’re in between two lanes. Maybe they’re swerving within their own lane. Maybe they’re drifting into another lane. Some of them are speeding, or maybe some of them are just driving erratically. People can be stopped for other reasons. I’ve had many DUI cases where someone was stopped because they had no seatbelt, they had an expired registration, their tail light was out. I even had an individual pulled over because his trailer hitch covered a tiny portion of his license plate number. So once they get pulled over all that’s required is reasonable suspicion.

    If the officer approaches the vehicle, and he smells the alcoholic breath, sees red, watery eyes, and he hears slurred speech, that can be enough for him to have further reasonable suspicion that you may be under the influence, and he can initiate a DUI investigation. They have that right. Now they don’t necessarily need probable cause until they arrest you. You’re not technically arrested, according to the police, until the end of a DUI investigation. So while they do need probable cause to arrest you, and take you to the station, the entire process, including the field sobriety test, the questions that they ask you, and even the preliminary alcohol screening breath test that they give you on the field, that’s all part of them establishing whether or not they have probable cause to arrest you, and take you to the station.

    Exercising the Fifth Amendment right to remain silent vs. talking to the police

    NL: One of our past episodes of The Legal Seagull, Episode 2, You Have the Right to Remain Silent, was about Fifth Amendment rights, the right to avoid self incrimination by not speaking to the police under many circumstances. Do you have the right at the time you’re pulled over to refuse to talk to a police officer?

    OH: Absolutely. You obviously don’t want to be a jerk about it, because you’re not going to help your case. No one got out of a traffic stop, whether or not it’s a DUI, or just getting pulled over for a ticket, by being a jerk to the police officer, I can tell you that for sure. But you’re very much within your rights to say, “Excuse me officer, if you don’t mind, I’m going to decline to answer any of your questions.” If the officer thinks that you smell like alcohol, or that you’ve got slurred speech, then he can still initiate his investigation, despite you saying anything. You can remain silent, but that doesn’t mean that he can’t continue his DUI investigation.

    NL: Even if you don’t smell like alcohol though, and you were to say to the police officer when he or she asks where you’re coming from, “Officer, I’m exercising my Fifth Amendment rights not to incriminate myself.” Couldn’t the mere refusal to answer a simple question like that be the basis for an officer’s reasonable suspicion that you must have been drinking?

    OH: Not in court. If an officer puts in his police report that he pulled someone over because they weren’t wearing their seatbelt, it was late at night so he asked them, “Have you had any drinks?” Then the individual responded that, “You know, Officer, I’m not going to answer those questions, I don’t want to incriminate myself.” Without the other facts, the Holy Trinity, if you will; the breath, the slurred speech, the bloodshot eyes. If he was to initiate a DUI investigation, and take you back to the police station, and let’s say he takes your blood, and you have a 0.15% blood alcohol level, very likely in court that wouldn’t stand up. Because essentially he had no reason, he had no articulable facts to believe that you were under the influence of alcohol. He can’t use your Fifth Amendment right to remain silent as reason that you’re guilty.

    NL: The most popular question that’s asked is, “Have you been drinking tonight?” to which it seems like everyone always responds, “I had two beers with dinner, Officer.” At that point, what happens next?

    OH: Well, it really depends. Look, the officer has a great deal of authority in that moment. A lot of the better trained officers kind of look into your objective symptoms, just by standing right in front of you, and decide, you know what, I don’t think this person is under the influence of alcohol, and they can let you go. What we can assume for your hypothetical is that the officer is absolutely hell-bent on doing a DUI investigation on you, and whether or not he’s allowed to based on that. So if you do admit that you’ve had drinks, even absent the objective symptoms, that may be enough for him to initiate his DUI investigation.

    Field sobriety tests: scientifically reliable and valid?

    NL: Now let’s talk about these field sobriety tests, as we discussed earlier. What is the state of the legality of these types of tests, and their admissibility into court in California? I imagine that this might be similar in other states, but as you answer this I’m aware, and the audience should be aware, that you’re speaking about California law.

    OH: Well, they’re certainly legal. These are tools in the officer’s tool belt with which for them to decide whether or not you may be under the influence of either alcohol, or drugs, or both. It’s all for developing probable cause that you’re under the influence. They’re absolutely legal, and it really depends on who you ask whether or not they are useful.

    NL: Can they be refused?

    OH: That’s a good question. An officer will never tell you that these tests are voluntary. However, you may absolutely refuse them in California without any consequence. But just know that if you refuse those field sobriety tests, and the officer does believe that you might be under the influence, you’re pretty much asking for a trip to the police station.

    NL: Let’s assume, for purposes of this discussion, that in the first scenario, you agree to do these field sobriety tests. What are the different types of tests, and what is their reliability, or scientific basis if you will?

    Horizontal gaze nystagmus test

    OH: There is an entity called the National Highway Traffic Safety Administration. They essentially are the ones who are behind a lot of the rules, and regulations, and a lot of the uniform field sobriety tests that happen around the nation, amongst other things. They have spent lots of money, and there has been lots of money poured into them, to scientifically validate certain studies. While there may be many field sobriety tests that people talk about, there’s actually only three scientifically valid field sobriety tests.

    The first one is a mouthful. It’s called the horizontal gaze nystagmus test. It’s essentially a test, without getting into too great of detail, where the officer is testing to see if you’re under the influence by looking at the behavior of your eyes as they track a stimulus; sometimes a pen light, sometimes just a pen, that the officer is holding out in front of your face. What the officer will essentially do is he’ll instruct you to stand up straight, put your arms at your side. He’ll hold the stimulus about 12 to 15 inches from the bridge of your nose, and he’ll move it from left to right. He’ll essentially be looking for nystagmus, which is a jerking motion in your eyes. There are a couple of clues that the officers actually look for. In fact, there are six clues that they look for. The science has shown that this is, actually, if done properly, one of the best field sobriety tests for predicting whether or not someone is under the influence.

    There are actually scientific studies which lawyers are often trying to keep out of court that say that if it’s done properly, you may even be able to assign a blood alcohol level to certain results of this Horizontal gaze nystagmus test. The problem arises, however, because a lot of officers don’t know how to do it correctly. It requires precision. It requires precision with how far the instrument is held from your face, how far to the side you hold the stimulus, and so on and so forth. One thing that is ripe for cross examination in trial is whether or not the officer conducted the test properly. The science is clear: If they do not conduct the test properly then the results are drawn into question.

    Walk-and-turn test

    OH: The next test is the walk-and-turn. The officer has no obligation to give you these tests in any order. But the walk-and-turn is probably the most commonly known field sobriety test. The walk-and-turn test, the officer instructs you to stand with your feet one in front of the other, touching heel to toe, keeping your arms at your side. Then they tell you to count nine steps, tell you to do a turn. They instruct you on how to do the turn, and then to walk nine steps back. They are also looking for a number of clues. Those clues include whether or not you actually were able to touch your heel to toe on every step, whether or not you actually kept your arms at your side. Whether or not you stumbled, or whether or not you were falling from side to side. How you performed the turn, and in general, whether or not you were able to listen to the instructions.

    The point of these field sobriety tests is that they are simulated, divided attention tasks. The idea is that driving is a divided attention task. You’re looking forward while you’re pressing the gas, while you’re also focusing on traffic around you, and trying to look at where you’re going . . .

    The idea is that mental impairment, when you’re under the influence, begins to manifest before physical impairment. These tests are divided attention tasks that measure both mental impairment, and physical impairment. In the case of the walk-and-turn, they are essentially seeing: can you follow instructions, and do as the officer told you? (mental impairment). But also, be able to maintain a straight line, and turn without falling over yourself? (physical impairment).

    One-leg stand test

    OH: The final scientifically validated test is the one-leg stand test. I think this test is really unfair . . . Depending on your physical fitness level, depending on whether or not you’ve had any injuries, this test could be very difficult to perform, even for a sober person. Essentially, one-leg stand is, you’re asked to stand with your feet together, your hands at your side, and you’re asked to lift your leg up at least six inches, and point your toe forward.

    Some officers will ask you to count to 10, some officers will ask you to count to 20. They instruct you if you put your foot down to just lift it back up and resume counting. Then, after that’s done, they’ll ask you to do it with your other foot. The idea is that they’re looking to see: Can you follow instructions, are you using your hands, despite the officer instructing you not to? Are you swaying from side to side? Are you able to count while holding your leg up, and pointing your toe forward, a divided attention task. There are a number of clues, and those clues have to be marked down, and noted properly, because that’s the only way this test has been scientifically validated.

    Those are the three scientifically validated tests. Again, there are many things that can make these tests unuseful in a court of law, or for the officer. For example, if the test is not done in the right circumstances. If it’s not done on level pavement. I had a case where the officer had my client do a field sobriety test on a hill. Of course, he didn’t write that in his police report, but when he wrote the location of where he did the test, I looked it up on Google Maps and I saw that it was a hill. I showed him the map on the stand and asked him, “Isn’t this a hill?” Needless to say, that officer was a little red in the face, because it was a hill, and that absolutely affects your ability to do these tests properly.

    In addition, whether or not you’ve had an injury can affect whether or not you do these tests properly, and whether or not the results are actually valid. Especially if you’ve had a head injury, like in the example of getting in a car accident. Obviously, if there’s a car accident, and there’s a suspicion of drunk driving the field sobriety tests are done, and that head injury can cause you to fail all the tests even if you are sober.

    If the officer does these tests correctly, and in the correct circumstances, then what the National Highway Traffic Safety Administration says is that these three tests are scientifically validated to show if someone is too impaired by either a drug or alcohol. These are tools that the officer uses to form an opinion.

    Now if the officer can say, or an expert can say, that they are scientifically validated, that just helps the jury consider the officer’s opinion with respect to those tests. It doesn’t change whether or not they’re allowed to be heard in court. With that said, it doesn’t need to be a scientific test to inform an officer’s opinion. But if it’s not a scientific test, then defense attorneys oftentimes will use that to say, “Well, if this test isn’t scientific, why are we using it to convict a man of a crime?”

    The “recite the alphabet backwards” test

    NL: So where does this leave the other tests? What about the recite the alphabet backwards test? Any scientific validity for that?

    OH: Absolutely not. I think that’s one of the most unfair tests that you can have, because some people don’t even know the alphabet. No, but seriously, it’s a difficult test for a sober person to do. Try it right now. Try to recite the alphabet backwards. You’ll probably do it slowly, and the officer will probably be able to write things that make you look like you’re doing it slowly, and then say in court that you were probably under the influence of a drug or alcohol.

    Romberg test

    OH: There’s another test that’s commonly used called the Romberg test. You stand with your feet together, hands at your side. You close your eyes, and you tilt your head back, and count to 30. What the officer will tell you is that you want to estimate 30, and then tell the officer when you believe you’ve reached 30. The officer has a stopwatch right there, and he’s also finding out what 30 seconds actually is. The idea is, depending on what your jurisdiction is, or what the officer is using in his consideration, if you complete the test at plus or minus five seconds of 30 seconds. Sometimes, some officers believe 10 seconds of 30 seconds, then you’re within an acceptable range.

    But if you, for example, tell the officer 45 seconds have gone by, but really you think it’s 30, probably you’re under the influence of some depressant. However, if you’re on, for example, a stimulant, like if you’ve done lots of cocaine, and then you get pulled over, you’ll probably count 5 seconds, and then you’ll be like that was 30 seconds. Then the officer will just look at you funny and be like, “This guy is probably under the influence of a stimulant.” So, the test, while it’s not scientifically validated, can help inform them of the type of drug that they’re on, even if it doesn’t mean that they’re scientifically validated.

    Finger-to-nose test

    NL: What about the “touch your nose and stick your tongue out,” or whatever it is?

    OH: The “touch your nose” is commonly used . . . it’s another divided attention task, because you’re switching arm to arm, and attempting to touch your nose with your eyes closed, and your head tilted back. Again, if it’s not scientifically validated it doesn’t mean the officer can’t use it to form his opinion, and it’s doesn’t mean the officer can’t testify to it in trial, it’s just a matter of what weight the jury gives it at the end of its determination.

    Breathalyzer (preliminary alcohol screening test)

    OH: In California, unless you’re on DUI probation, you don’t have to do the preliminary alcohol screening device breath test at the scene of the incident, whether it’s being pulled over, or a car accident. The officer in fact has to admonish you that the test is voluntary, whereas, as I said before, they don’t admonish this for the field sobriety test.

    Now understanding that, if you don’t do the preliminary alcohol screening device the officer is likely going to take you to the police station, and ask you to do one of the required by law, at least in California, breath or blood tests.

    It’s completely up to you whether or not you want to do it. Some people make that choice, some people choose otherwise. Now, the preliminary alcohol screening device is probably the size, depending on the actual device, a little bigger than your fist, maybe a little bigger with its battery pack than that. The officer has it in his vehicle. It’s considered a field sobriety test by officers, meaning that it’s not considered a chemical test. However, the technology that it employs to determine your blood alcohol level is the same as the machine at the station, which is much bigger, much heavier, and a little more technical.

    The idea behind a breath test is actually interesting. Because the idea is you’re breathing into a machine, and it’s determining how much alcohol you have in your blood. Without getting too detailed into the science of it, essentially these little alveolar sacs in your lungs can emit some level of alcohol from your bloodstream. There’s a partition ratio, essentially a ratio of the amount of alcohol that’s emitted into your lungs, compared to how much alcohol . . . in your blood . . .

    . . .

    When you breathe into the machine, that tiny amount of alcohol that’s in your deep lung air gets multiplied by, sometimes the number is 2,100, and that’s how they determine how much alcohol is in your blood. That’s essentially the idea of the machines.

    . . .

    Breathalyzers for marijuana

    NL: Can [these breathalyzers] also detect marijuana, other drugs, or just alcohol?

    OH: Those devices are essentially designed to test ethyl alcohol. That’s a chemical in alcohol. What happens is when you breathe into these machines there’s a fuel cell inside of the machine, and it responds to a number of chemicals, one of which is ethyl alcohol. It creates a charge, and the strength of that charge then indicates through a complicated algorithm, what your blood alcohol level is.

    NL: I’ve been hearing about field tests now that are done to detect marijuana. Do you have any idea how those work?

    OH: Yes. Essentially, what they do is they have a bag of Funyuns, and they hold it in front of you. If you cannot resist the Funyuns then they have determined that you are under the influence of marijuana.

    Actually, it’s not like that at all. This is a brand new approach—certain law enforcement agencies are testing it out. There has been to date no way to test whether or not someone has marijuana in their system. In the field, they’re applying this swab . . . they swab your cheek, and they test the cheek cells, and they determine whether or not you may have marijuana in your system. Not a lot of law enforcement agencies use this, and as of now it’s nothing more than a tool for determining probable cause, whether or not you might be under the influence of marijuana. The ultimate tool is the blood test, sometimes the urine test.

    NL: Before today you had told me some really interesting things about the marijuana test, how it might be a little bit less than scientific in determining impairment.

    OH: Yes. Absolutely. The marijuana test is a very frustrating test for me as a criminal defense attorney. It essentially can’t show a lot depending on the test results, other than this is a chronic smoker who may or may not be high at the time of being tested. When your blood is tested for marijuana, it’s tested for two things . . . an active THC ingredient, and an inactive THC ingredient.

    [The inactive THC ingredient is] called carboxy-THC, it’s a metabolite. The metabolite is like ashes to the fire. It can show that you have smoked maybe as recently as that same day, or two or three weeks prior. It’s a number that’s measured in nanograms per milliliter. Certain law enforcement agencies will look at that in determining whether or not someone might have been under the influence of marijuana.

    Then there’s the active ingredient . . . most laboratories will only test the number of that active ingredient from 2 to 25 nanograms per milliliter. That active ingredient can show particularly if you have marijuana in your system, but not that you’re under the influence of marijuana. I want to make that distinction clear. Because just like alcohol, you can have alcohol in your system, but not be too impaired to drive, which is essentially the legal standard in California. What that means is there is no way to look right now, according to the scientific evidence, at the amount of active THC in your blood, and determine that you’re too high to drive essentially. What means, again, for people who are chronic smokers can be pretty bad. Let me give you some scenarios.

    Let’s say you’re a medical marijuana patient, which is legal in California, and you smoke marijuana every day. Let’s say you smoke on Wednesday night to go to sleep because you need it to go to sleep. You wake up the next day, you feel fine, and you drive to the store, and for some reason you’re pulled over. Maybe because you’ve had marijuana in your car, from purchasing it from the dispensary, your car smells like marijuana. The officer says: “Have you had anything to smoke,” and you say, “No.” Let’s say the officer sees some other things that he thinks might be indicative of you being under the influence of marijuana. Understand that in this hypothetical, you’re not under the influence of marijuana—the last time you smoked was the night before.

    He can take you to the station, he can do a blood test. Essentially what can happen for a chronic smoker is a very high result of the marijuana metabolite, the inactive ingredient, and a tiny, yet measurable active THC in your system.

    The reason for that is that if you’re a chronic smoker the scientific studies have shown that chronic smokers can have a tiny amount of active THC in their blood constantly, because it kind of hides in their little fat cells, and is constantly being released. You may be charged with driving under the influence, and you may have to go to trial in order to prove your innocence because you’re a chronic smoker. That’s just the state of marijuana science right now when it comes to driving under the influence.

    There is no per se limit in California; however, other states do have a per se limit. I know Colorado does, I know Nevada does. In fact, Nevada has one of the scariest per se limits, and I’ll explain why. Because they have a per se limit for the active THC, but they also have a per se limit for the inactive THC.

    What that means is if you are a chronic smoker, and you smoke on Wednesday night, and then on Thursday you don’t smoke, and then on Friday you drive from California, where you were legally allowed to smoke, to Las Vegas. If you are pulled over and the officer suspects that you may be under the influence of marijuana, even though you are not, he can make you do a blood test, and you can be charged and convicted with a marijuana DUI because of the inactive THC that has been in your system from the marijuana you had been smoking even up to weeks prior. It’s a scary thought.

    Prescription medications

    NL: What is the deal with people who are chronic pain patients, either cancer, or any other disease, and they have a prescription for narcotic pain medications like oxycodone, Norco, Dilaudid—very powerful narcotics that in some ways impair your ability to drive . . . ?

    OH: Well, California is clear, and I imagine this would be the case in the rest of the nation. Just because you have a prescription to take a certain medication . . . doesn’t mean you have an absolute defense to driving under the influence of that drug. In fact, many of these medications are very clear: “Do not operate heavy machinery or drive.”

    Chemical sample at the police station: blood vs. saliva test

    NL: Let’s assume that all this has happened already. You’ve been pulled over, talked with the police officer, done the field sobriety test, the breath test, and the officer has decided not to let you go, he has decided it’s time to take you to the police station. What happens when you get there? What else can they do to you there, and what are your rights in the police station?

    OH: If the officer determines there is probable cause to believe you are under the influence of a drug or alcohol, he can take you to the police station . . . You need to provide a chemical sample. That could be in the form of a breath test, or if you like, you can do a blood test. If they suspect you of drugs and alcohol, or just drugs, they very likely will require you to do a blood test.

    Blood test

    NL: Is there a difference one way or the other over the accuracy, or how quickly it will show up in your blood, versus your saliva or urine?

    OH: No. The idea behind the breath test is it is measuring the current blood alcohol content. One of the main real advantages of taking a blood test is that you can retest that blood at a later date if the law enforcement agency saves a sample of that blood. In California, they are required to do so at your request, and oftentimes many police stations will do so automatically. This matters, because . . . [t]hey are taking your blood, and oftentimes what they’ll do is they’ll put a preservative in your blood to make sure that the blood alcohol level doesn’t diminish. They’ll put the preservative in your blood, and then they’ll test it at a laboratory.

    In fact, in Orange County, a lot of DUI convictions had to be overturned because they found that the laboratory that was testing blood for alcohol was doing so incorrectly, and with incorrect measurements by mistake. You’re really trusting this law enforcement laboratory to tell you if you’re under the influence of alcohol. So, it’s great to be able to have an independent laboratory test your blood, and test if there’s any irregularities that may show that this blood alcohol level is, for example, an anomaly.

    The flip side is if you take the blood test, you’re spending the night at the station, because they can’t determine whether or not you are too impaired, or your blood alcohol level in general right away, so you have to stay the night, if that’s okay with you. I’m sure it’s not.

    Breath test

    OH: The breath test is a really simple test. You essentially blow into it twice. The reason you have to blow into it twice—I might have explained it before—is they need to ensure that the result is not an anomaly. Actually, in California, there are special regulations as to how the breath test needs to be administered, and how the machine needs to be maintained and calibrated. The reason it’s required for them to give you two tests is:

    Let’s say there’s some spit, or maybe you have a cavity that has been holding some of that alcohol you drank an hour before. The reason there can be an anomaly in a chemical breath test is because you may have some alcohol in your spit. You may in fact have some reflux disorder that causes alcohol from your stomach to come up through your throat, and then enter the machine, and essentially give too high of a reading, a falsely high reading. You have to blow twice, and you have to wait two minutes in between each blow. In California, if the results are more than 0.02 points away from each other, then that test is said to be essentially invalid.

    Refusing a chemical test

    NL: Do you have the right to refuse a chemical test, or a blood test, at least in California?

    OH: This is the point where you start to have no choice. Before you didn’t have to answer the officer’s questions, you didn’t have to do the field sobriety test, and you didn’t even have to do the preliminary alcohol screening device. But once you’re at the station, the officer asks you, “Do you want to give a blood or breath test?” In California, and I’m sure many other jurisdictions, if you refuse to give that test that results in an automatic one-year suspension of your driver’s license. So, you essentially don’t have a choice. In fact, in California if you’re charged with a DUI, and they found that you did willfully . . . you can have a mandatory jail enhancement as well.

    In order to refuse—it’s actually quite interesting. They have to fully advise you of your rights before you can be said to have refused. They have to tell you that you have choice between a blood or a breath test. Unless they suspect drugs, then you only have a choice of a blood test. They have to tell you that you don’t have the right to an attorney at this point, and that if you don’t submit to the test if can be used against you in court.

    They have to tell you that not submitting yourself to the test can result in a mandatory fine, or imprisonment. They have to tell you that not submitting to a test can result in a one-year license suspension. This is just in California. But the idea of fully advising someone of their rights to refuse is, I think, nationwide. If you are not advised of all these things, then you can’t be said to have willfully refused . . .

    Potential defenses to a DUI charge

    NL: Let’s assume you’ve had your breathalyzer test, spoken with the police officer, maybe even had some field sobriety tests, and the police officer has determined there is a good reason to bring you down to the police station to do further testing. What is the evidence that can be used against you in court?

    OH: In court if you truly believe that either you’re not too impaired to drive, or that you don’t think the state of the evidence should be able to convict you of such a crime, and you decide to take this to trial, essentially you have two hurdles in California to overcome. Like I said before, there are two charges for every DUI that includes a blood alcohol level. There is:

    Were you driving under the influence? Or Were you driving with a blood alcohol level of 0.08% or higher? Defining the term “under the influence”

    OH: For the purposes of the jury, “under the influence” doesn’t mean “I could feel the effects of the alcohol,” it actually has a very specific legal definition.

    In California, the definition [according to California Criminal Jury Instruction 2110] is that: “A person is under the influence if, as a result of drinking an alcoholic beverage . . . and/or taking a drug . . . his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution a sober person, using ordinary care, under similar circumstances.”

    Essentially, that’s the standard that the jury has to decide whether or not you’re too impaired. At court, all the evidence we talked about today is going to be used against you. Every single piece from the reason you were pulled over, to the smell of an alcoholic beverage on your breath, slurred speech, and the bloodshot eyes, to the results of the field sobriety test, the preliminary alcohol screening test, and finally, the results of your breath and/or blood test.

    Per se limit: 0.08% BAC

    It’s important to note, and this has happened to me and my colleagues often. You only need to be convicted at a jury trial of one of those to be convicted of a DUI. What that means is: You can give a blood test, and it could come back with your blood alcohol level being 0.15%, but for some reason your tolerance is such that you’re able to be 0.15% and not be a danger to society, or to the community because you’re able to drive so safely, and your brain is able to operate so well.

    If that’s the case, you can still be convicted of the DUI because your blood alcohol level was over 0.08%, even though the jury finds that you’re innocent of driving under the influence. It’s wild, and it does happen. Jurors do come back with that verdict, and unfortunately you still get convicted. The reason for that is because I think that the scientific evidence is important. The blood alcohol level is important because a lot of what is being used to prove that you’re driving under the influence, as opposed to driving with 0.08% or over, is subjective to the officer doing the tests.

    While the officers will never admit on the stand that they are being subjective, they really are. Every officer performs these tests differently; every officer has a different idea of what these tests are showing. It can be quite abstract for a juror to wrap their head around when they’re listening to an officer spout off all the different clues that were exhibited in the horizontal gaze nystagmus test. Throughout many of my trials the moment the word horizontal gaze nystagmus test is uttered at least one person starts to fall asleep, if not more. So it’s not only difficult for them to grasp, it’s also very boring stuff, so that’s why a lot of jurors will hang their hats on the 0.08% or higher.

    Challenging DUI / DWI test results at trial

    With that said, at every stage there is a way to discuss potential weaknesses of these objective symptoms, or the field sobriety test. But specifically, there’s also a way to show that the machines themselves are not operating correctly.

    Were machines properly calibrated and used?

    As for the preliminary alcohol screening device, and the same for the breath test at the station, there’s a number of ways that defense attorneys bring up in court to challenge these devices. One of them is that they’re simply not accurate. The idea is let’s say you are a 0.05% blood alcohol level, that is your actual blood alcohol level, and you blow into a machine that is not properly calibrated, it can give an incorrect result. It may report 0.09% blood alcohol level.

    In California, and I’m sure many other places, under Title 17 there’s a requirement that they calibrate these machines either, I think, every ten days, or 150 uses, something along those lines. So they are required to calibrate them quite often or rather accuracy-check them quite often. If they’ve gone for more than ten days at a time, or 150 uses without being accuracy-checked or calibrated, that could be something attorneys use in court to discuss why the results may be unreliable.

    In general, there’s a jury instruction that if the machine, its maintenance, or its operation are not compliant with the California Title 17 requirements then you can question the results of that machine.

    Non-compliant testing procedures

    OH: . . . [A]nother way these tests can be challenged is if there’s no 15-minute observation period from the time the officer sees you to the time you give a breath sample, then they are not being compliant with Title 17 . . . as we discussed before, you may have acid reflux, you may have just vomited, you may have had an alcoholic drink in the middle, in the interim 15 minutes. If that’s the case, then you can’t be sure that mouth alcohol isn’t providing a false reading in that breath test. That’s another requirement that California has, and I think other places follow suit.

    In addition to that, each test has to be done two minutes apart. There needs to be a certain volume of air that is blown into the machine. There are many, many things that criminal defense lawyers will try to look for to see if the tests are being done properly, and that’s just the tip of the iceberg for the breath test.

    The rising alcohol defense

    OH: Another defense that a lot of attorneys will use in court, and it’s quite interesting, is the rising blood alcohol defense.

    [Let’s say] you go to a bar, you haven’t had anything to drink. Let’s say you just down two shots of whiskey. Then your friend is like, “We’ve got to go to this next bar across town.” You’re thinking, “Well, I just had two drinks, but I feel absolutely fine.” Then you get in the car, and you get pulled over. The officer smells alcohol, looks at your eyes, maybe hears something in your speech, and decides to begin a DUI investigation. You give a preliminary breath test, and the results are something like, let’s say 0.08%. Then, you go to the station, and you give another breath tests, and the results are 0.10%.

    . . . [T]he criminal defense attorney will likely hire an expert . . . in how your body metabolizes alcohol. What an expert can oftentimes effectively argue is that from the moment you took those drinks, to the time of driving, your body was metabolizing the alcohol, and so your blood alcohol content was rising. When you got pulled over, you may have been somewhere at 0.07% or 0.06%. But the from the time you began the DUI investigation, which could sometimes take 20 to 30 minutes, to when you gave the preliminary alcohol screening device, you were no longer driving, but your body was metabolizing that alcohol.

    When you gave the breath test at the field, it became 0.08%. Then your body was still metabolizing that alcohol on the way to the station, which is shown by the fact that when you go to the station—without having any drinks in the meantime—your blood alcohol level is now 0.10%. There is a blood alcohol curve that even the People and the prosecutor’s experts will draw, that shows the way that you somehow metabolized that alcohol.

    Sometimes criminal defense attorneys can secure acquittals by drawing doubt as to whether or not you ever had a 0.08% blood alcohol level while driving, or if that level was only achieved while you were outside the car being investigated. Now, of course, a lot of people don’t like this defense because the person is still drinking and driving. But the law is clear: Were you driving with a blood alcohol level of 0.08% or higher?

    Despite all the challenges attorneys make, despite all the defenses they have, and how charming (not myself obviously) but other criminal defense attorneys can be in the courtroom, if the evidence is there—the jury will convict. Jurors for the most part, after being properly selected, really are able to sift through all of that and just see if there’s enough evidence. That’s what it’s all about. If someone is acquitted at a DUI trial, it’s generally because the state of the evidence is just not good enough to convict a man of a crime. That’s really what we’re dealing with. There needs to be proof beyond a reasonable doubt. I think that’s one of the great things about America is that we require this great amount of proof before we take away someone’s liberty.

    . . .

    NL: Omid, thank you very much for taking the time to come on the show. It was great having you. A lot of very valuable information.

    OH: Absolutely. I was happy to be here. I love your show, I’m an avid listener.

    –END OF INTERVIEW—

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    If you are serious about writing a persuasive, effective, and professional looking demand letter to help you successfully resolve your dispute, download The Legal Seagull’s free guide How to Write a Great Demand Letter by clicking here. The downloadable guide includes a high-quality, realistic sample that you can use to help you in writing a demand letter.

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    If you are involved in a legal dispute, your first inclination might be to file a lawsuit. However, doing so without first attempting to resolve the dispute may be a huge mistake. Writing a persuasive and professional-looking demand letter may accomplish the same–or even better–results than a lawsuit, without the risks and expenses of taking your case through trial.

    Think about it this way: If you can get paid (or obtain something else you want) by spending 30-60 minutes writing a letter, rather than spending many hours and dollars pursuing a lawsuit, is that not worth the effort?

    There is no guarantee that your opponent will read your letter and immediately mail you a check; however, often enough, demand letters start a dialogue, which can lead to resolving your dispute without the need to file a lawsuit.

    Believe it or not, your opponent might not even realize that you have a grievance and are considering legal action! And, if your opponent knows, he or she might not take you seriously until you send a stern demand letter detailing your allegations and claims for damages.

    Sometimes people try to ignore a legal dispute, hoping that it will simply go away. Occasionally that happens and they are lucky, but often enough, the dispute snowballs into a lawsuit. No one wants to be sued, and receiving a demand letter is not something most people can afford to ignore.

    If your grievance is against a company, your demand letter may trigger management to take your demands seriously and contact the company’s lawyers and liability insurance carrier. If your claims appear strong enough, this could contribute to an early settlement of your claim.

    THINGS TO KEEP IN MIND WHEN WRITING YOUR DEMAND LETTER

    Writing a great demand letter is an art—not a science. Here are a few things you should consider when writing a demand letter:

    Be respectful and polite.

    No matter how much you dislike your opponent, there is no reason to resort to nastiness. The whole point of writing a demand letter is to resolve the claim without having to go through a lawsuit.

    Put yourself in your opponent’s shoes. Imagine this: You come home after a long day of work and grab your mail. After opening up a few bills, credit card offers, and ads, you unexpectedly come across a nasty letter from someone who claims you breached a contract. The letter is loaded with aggressive threats and foul language, and barely contains any supporting facts. Are you likely to respond well? Would you be inclined to reach for your checkbook and mail back a check? Probably NOT!

    Now imagine this: You open up a letter that is professionally written, polite, and logically explains, with supporting facts, how you breached the contract. Would you be more likely to take the letter seriously and try to resolve the dispute? Probably!

    You are more likely to resolve a claim by being respectful, polite, and assertive than by making hostile accusations and being a jerk. It is best to start off with a positive tone. You can always take a harsher stance later on, if necessary. For example, if your opponent does not respond to your letter after a reasonable time, or refuses your demands, you can consider writing a more forceful demand letter or even filing a lawsuit.

    Make your letter appear professional.

    Type up your demand letter on a computer. Or, if you are old-fashioned, a typewriter will do. Include your contact information in the letterhead so your opponent can contact you.

    Do your very best to use proper grammar and spelling and to make the letter appear as professional as possible.

    The demand letter needs to convey seriousness and competence. If you are not comfortable with your writing abilities, have a friend or family member help you write it.

    Know your audience.

    Depending on your opponent’s education, training, and level of sophistication, you may want your demand letter to be more—or less—detailed. Likewise, your choice of language should be adjusted accordingly.

    You should also take into account your relationship with your opponent. Is this someone you want (or need) to maintain a favorable relationship with? Do you want to continue doing business with your opponent in the future? Is it a member of your family? All this needs to be taken into account when deciding what tone to use in your demand letter.

    Keep it short but sweet.

    There is no ideal length for a demand letter. The length depends on your writing style, how long the dispute has been going on, how complex the facts are, and how much you feel you should divulge in your letter. That being said, in the modern world of smart phones, tablets, and other digital devices, attention spans tend to be very short.

    Often in law, as in life, a short letter that gets to the point without too much fluff and blabbering gets better results than the opposite. When writing your demand letter, try to keep it between 1-3 pages, unless you feel you need more to get your points across.

    WHAT TO PUT IN YOUR DEMAND LETTER

    Now that we have covered the basics, we will get down to the nitty-gritty of writing your demand letter:

    Start by recounting the history of your dispute.

    Even though you might remember the facts of your dispute, your opponent might not. Or, if he or she does, their recollection might be very different than yours. A demand letter is a great opportunity to relay your version of the facts.

    The factual history should discuss the incident, event, or contract that forms the basis of the dispute. What happened that brought you to this point? You do not have to write a novel about it, but you should make it detailed enough to support your claims. Be sure to include any attempts you made to resolve the dispute, such as letters, e-mails, conversations, or settlement offers. Remind your opponent how reasonable you have been.

    Include facts and legal contentions

    You do not need to include EVERY fact and legal theory you can think of; however, it is generally helpful to recount the key facts and the causes of action you are considering (e.g., breach of contract, personal injury, negligence, defamation, etc.). Some demand letters spell out the relevant elements of each cause of action and facts to support each. It all depends on how much you want to divulge at this early point and what you think would best accomplish your goals.

    Recite your damages.

    “Damages” refers to the sums of money you claim for the harms you incurred or will incur in the future. If you are demanding money (or something else) to resolve your dispute—which is the whole point of writing a demand letter—it usually makes sense to describe the damages you incurred and what you believe you will suffer in the future.

    Try to be as specific as you can with the damages. However, sometimes damages are difficult to quantify. If that is the case, do your best to be as specific and accurate as possible, and state in the letter that you are still working on calculating your damages.

    Do not forget to explain how your opponent’s conduct caused or contributed to those damages. Unless you do a good job explaining how your opponent caused your damages, do not expect him or her to write you a check!

    Clarify that your investigation is ongoing.

    Make sure to state in your demand letter that you are still investigating the facts and that the letter does not contain a full recitation of the facts and damages you sustained. Moreover, write that you reserve the right to state additional facts and damages as your investigation continues. That way, if your understanding of the facts changes, or you realize you suffered additional damages, you could argue that you reserved the right to make changes in your original demand letter.

    Demand preservation of evidence.

    It is illegal to destroy evidence when one knows or believes that a lawsuit has been filed or is likely to be filed; however, do not assume your opponent knows (or respects) that!

    In a perfect world, you would not have to demand that your opponent preserve key evidence. Nevertheless, if you believe your opponent possesses physical evidence, documents, or electronic media that are capable of being “misplaced,” altered, destroyed, or deleted, be sure to remind your opponent to preserve all evidence until your dispute is resolved or litigation is completed.

    If you know of any specific evidence in your opponent’s possession that you want preserved, make sure to describe those items specifically when writing a demand letter.

    Explain why it makes sense to resolve case.

    If your opponent has not been sued before, he or she might not know the costs and risks of allowing a dispute to snowball into a lawsuit. Explain why it makes sense to resolve your dispute without dragging it through the court system. To successfully settle your dispute, you need to show your opponent what is at stake.

    You could include the following:

    Save money on litigation costs and attorney’s fees; Avoid a judgment; Prevent a lengthy and expensive lawsuit; and Avoid the burden of having to produce documents, respond to discovery requests, and take time off work to appear at depositions, court appearances, and trial.

    You want your opponent to receive your letter and immediately understand the personal, professional, and financial consequences of failing to properly address your claims.

    Consider setting a deadline.

    There is a difference of opinion among attorneys as to whether you should give your opponent a deadline to respond to your demand letter. Some attorneys believe that a deadline creates a sense of urgency; others think that deadlines only irritate your opponent and make settlement less likely.

    It is up to you to evaluate the facts of your case, your opponent’s personality, your history of dealing with your opponent, and whether it is in your best interest to set a deadline. If you set a deadline, make sure to follow through if your opponent fails to respond. If you do not receive a response by the deadline, be prepared to send a follow-up letter or file a lawsuit.

    If the statute of limitations is approaching for your lawsuit, be sure to set a deadline that leaves you enough time to file a timely lawsuit if you are unable to resolve the dispute with a demand letter.

    WHAT TO AVOID Nastiness and abusive language.

    There is nothing to gain—and a lot to lose—by allowing your potty mouth to get the best of you. Abusive language will only annoy your opponent, discourage productive dialogue, and make settlement negotiations more difficult—or even impossible.

    Furthermore, if your dispute leads to a lawsuit, imagine your embarrassment when your letter calling your opponent an “idiot,” “ignoramus,” or “poo poo head” is seen by the judge presiding over your case?

    Be completely accurate and truthful

    EVERYTHING you put in writing has the potential to be used against you. If you write something that is inaccurate or untrue, it could be used to cross-examine you at trial. That could be embarrassing, damaging to your credibility, and disastrous to your case.

    If you are not sure about something, leave it out or put in something to qualify your statement, such as “I am informed and believe that…,” or “it is my understanding that…”

    Do NOT commit extortion!

    Extortion is a crime. Its elements differ in every state, so you want to make sure you do your research and comply with all applicable state/federal laws. The general pattern of extortion laws is that a person is guilty of extortion if he or she uses certain threats to induce someone to pay something, do something, or refrain from doing something. We cannot and will not interpret the extortion laws in your jurisdiction, but here are some general, non-state-specific pointers for things to absolutely avoid in your demand letter:

    Any mention of damaging, destroying, or harming the property of your opponent, his/her family, or any other person. Any mention of accusing your opponent, his/her family, or anyone else, of a crime or disciplinary action. Any mention of exposing a secret of your opponent, his/her family, or anyone else. Any mention of causing shame, disgrace, disrepute, humiliation, or damage to the reputation of your opponent, his/her family, or anyone else Any mention of injuring or killing your opponent, his/her family, or any other person.

    Unless your jurisdiction’s laws say otherwise, it is generally not considered extortion to merely threaten to file a lawsuit if your demands are not met—if in fact you intend to file a lawsuit.

    FINALIZING AND SENDING YOUR DEMAND LETTER Have someone proofread and edit your demand letter.

    When you think you are done writing the demand letter, ask a friend or family member to review and edit it. Pick someone with great grammar and spelling abilities. If you can find someone with a legal background, that would be a huge plus.

    This step is extremely important. We all have a tendency when writing to assume that the reader understands our writing as well as we do. In reality, no matter how many times you edit your own writing, you will almost always miss things that an independent set of eyes could uncover.

    If you give your demand letter to someone to review and they return it to you with a pat on the back and no recommendations for edits or changes, that means they did not do their job. Find someone else!

    Make a copy and send by certified mail.

    Once you have reviewed and finalized your demand letter, keep a copy and send the original by certified mail or some other form of “trackable” delivery.

    If you are using the United States Postal Service (i.e., mail), consider using certified mail with return-receipt requested. You definitely want proof that the letter was delivered—especially if your dispute ends up in court. If you have never sent a letter by certified mail with return-receipt requested, ask someone at your local post office to help you. It is easy!

    In addition to sending the letter by mail or carrier, consider scanning it and sending a digital copy by e-mail. That will make it even harder for your opponent to deny having receiving it.

    Good luck!

    To download How to Write a Great Demand Letter, The Legal Seagull’s free guide and demand letter sample, click here.

    Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator!

    Like this podcast? Then you'll love the video! Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook and follow us on Twitter and Instagram.

    * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at http://www.thelegalseagull.com/disclaimer

  • “When in Rome, do as the Romans do.” Yes, it's an annoying and overused cliché, but an important piece of advice for how to act in court or any other new environment. Going to court is no different than any other new place. There are certain rules and formalities you must abide by—and some important things to avoid.

    This podcast will cover the A to Z of how to act in court. It's impossible to anticipate every conceivable scenario you may encounter, but we'll give you detailed guidelines for how to act in court so that you can appear professional, prepared, and confident. This is especially important if you are representing yourself without an attorney (pro se or pro per).

    Dress appropriately.

    “Dress for success” is another cliché (sorry!), but it is absolutely necessary whenever you set foot in a courtroom. Dress appropriately for all depositions and meetings with the parties and opposing attorneys, whether or not it takes place in a courtroom. Although this may seem obvious, I have seen more than one pro se / pro per party show up in Bermuda shorts and flip-flops!

    Judges tend to be very formal and expect parties to be dressed conservatively. What you wear is a reflection of your attitude towards the lawsuit and your respect (or lack thereof) for the court. If you dress poorly, wear tattered or stained clothes, reveal too much skin, or make poor wardrobe choices, you may be judged harshly, even if you are representing yourself pro se / pro per. Although it may seem superficial, jurors are known to penalize parties who dress in an unconventional or non-professional manner.

    Clothing options for men

    It is always best to wear a suit and tie to court. If you do not own a suit, look for affordable ones in your area or online. Thrift stores are also a good source for used suits—or you can borrow one from a friend or family member.

    If you absolutely cannot get a suit, at the very least you should wear slacks and a dress shirt (properly ironed) with a tie and sports coat. As for shoes, go with brown or black dress shoes.

    Never wear: Sneakers, sandals, flip-flops or any other open-toed shoes; a cap or hat; shorts; sunglasses (unless you have a medical condition); jeans; t-shirts; torn clothing; or excessively baggy pants.

    Clothing options for women

    Disclaimer: I am in no way an expert in women’s clothing! However, based on my years of experience in various courthouses, it seems the best options are a pants suit, skirt suit, nice dress, or slacks with a conservative top.

    Although society has become much more progressive in its approach to gender equality, courts have not moved nearly as fast. Judges and jurors still have conservative views when it comes to proper attire for women (yes—there is a double standard!). Avoid dresses and skirts that are too short—nothing higher than the knees—and blouses that reveal too much skin.

    Never wear: Sneakers; flip flops; halter tops; tank tops; sleeveless blouses; t-shirts; mini skirts; or shorts.

    For both men and women Cover up tattoos (if possible): Wear long pants or tops to cover tattoos. If you have visible tattoos on your neck, face, or hands that you cannot cover with clothing, there are several cosmetic products that conceal tattoos. Better to be safe than sorry—you want the judge or jury to decide your case based solely on the facts—not on their opinion or prejudice regarding your tattoos. I once saw a pro se / pro per party appear before a judge with a huge neck tattoo that said “THUG LIFE.” He probably should have worn a turtleneck shirt… Remove piercings: Do not worry about earrings, but if you have piercings in your lip, nose, chin, eyebrows, or anywhere else visible—remove them. Avoid loud colors: It is best to stick to conservative colors—black, white, brown, dark green, and dark blue. Do not go too crazy with the colors. If you wear red, pink, purple, lime green, or mustard yellow, you may distract the judge or jury. Keep the array of colors for your bowl of cereal. Avoid expensive jewelry: Do not expect much sympathy from the judge and jury if you are wearing expensive jewelry—especially if you are asking the court to award you money! Be punctual.

    Always budget enough time to make it to court. Take into account traffic, parking, and courtroom security. Depending on the courthouse, it may take you a while to get through security.

    Being late reflects poorly on you and could result in you being penalized and reprimanded by the judge. As the great Vince Lombardi said, “if you ain’t 15 minutes early, you’re late.”

    Address the judge properly.

    When addressing the judge, always address him or her as “Your Honor.” It is generally appropriate to say “Judge,” but try to stick to “Your Honor.” Never address the judge as “Sir,” “Mister,” “Madam,” “Ma’am,” “Jonathan,” or “Wassup, Dawg?”

    Stand when you speak to the judge.

    Even if there are chairs at the counsel’s table, always stand when speaking to the judge unless you are invited to sit down or you have a medical condition that makes standing difficult or impossible.

    Direct all comments and arguments to the judge.

    Always speak directly to the judge; do not address your opponent or the opposing attorney. When responding to your opponent’s arguments, speak directly to the judge.

    Even though it might seem strange, you are always addressing (and facing) the judge when you talk. This applies whether you have an attorney or are representing yourself pro se / pro per.

    Be polite and show respect to the court and parties.

    Treat the judge and your opponents with courtesy and respect, even if you disagree with what they are saying. Here are a few words and terms you can use to keep your language respectful:

    “Respectfully”– you could interject this when addressing the judge or responding to your opponent’s arguments. For example: “Your Honor, I respectfully disagree with Mr. Smith’s arguments because…” “If I may”- this conveys deference to the court and shows that you are respectful of the court’s time. “Your Honor, if I may respond, this evidence is relevant to my case because…” “Counsel”- when referring to the opposing attorney, use the term “counsel.” Never use first names! “Please” and “thank you”- as in everyday life, these words are used far too sparingly in court. Whenever a judge, party, or counsel does or says something nice, cooperative, or pleasant, be sure to thank them. This of course is true for all aspects of life, not just for learning how to act in court. NEVER interrupt the judge (or anyone else).

    This is a big no-no! Judges hate being interrupted (especially by pro se / pro per parties). Even if you disagree with the judge, believe he or she misunderstands an aspect of the case, or is misstating the law or the facts, do not interrupt. Wait until the judge has finished, and then politely respond, unless of course the judge indicates that you should stop talking.

    The same goes for the opposing party, counsel, and witnesses. You may hate what they are saying—but do not interrupt. Wait until they are done and the judge asks you to respond. If the judge does not offer you a chance to respond, you can politely ask the judge to allow you to speak.

    If you are ever admonished or criticized by the judge, never be disrespectful or raise your voice.

    Never approach the bench without permission.

    The judge may ask you to approach the bench to speak privately. Unless you are invited, do not approach the bench without permission. The last thing you want is to be tackled by the bailiff!

    Avoid negative body language.

    You may not like what the judge, parties, or witnesses are saying; however, you must make sure you do not exhibit any negative body language. Do not smirk, roll your eyes, groan, or make any other gestures. Doing so could subject you to discipline by the court, and the judge and jury might interpret this as arrogance or rudeness.

    Be persistent but know when to stop.

    During court proceedings, you might disagree with the judge’s rulings. As long as you do so respectfully and politely, you may ask the judge to reach a different ruling. However, know when enough is enough!

    Do not chew anything.

    Do not chew food, gum, tobacco, or anything else while in court. Judges do not like it and neither do jurors.

    Never lie or mislead the court.

    It is unlawful, improper, and just plain wrong to lie or distort the truth in court. If you do so under oath, you could be prosecuted for perjury, held in contempt, or face fines, imprisonment, or all of the above.

    Be very nice to the clerk.

    The court clerk has a surprising degree of power—which could help make your life a bit easier or much harder. For example, clerks can sometimes reject court filings for very minor, technical violations of court rules. Other times, they may be more willing to “bend” the rules.

    Being nice will not necessarily get the clerk to help you—but your chances will probably be better than if you are rude!

    Put away your cellphone.

    Put your phone on silent mode or shut it off before entering the courtroom. That means no talking on your phone. No text messaging. No Facebook, Instagram, or Twitter. And don’t you DARE try taking a selfie with the judge!

    I once sat next to a pro se / pro per party who was so busy playing a game on his phone that the judge had to call his case four times before he finally realized what was happening. Needless to say, the judge was not impressed…

    Conclusion

    It is normal to have some anxiety regarding your first day in court. There is nothing unusual about feeling uncertain, nervous, or even mildly panicked before entering a new environment. Just remember the tips in this article and you will be off to a great start! You can learn more by subscribing to The Legal Seagull’s podcast on iTunes, Stitcher, or Soundcloud.

    Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator!

    Like this podcast? Then you'll love the video! Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook and follow us on Twitter and Instagram.

    * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at http://www.thelegalseagull.com/disclaimer

  • Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts.* Statutes of limitation cut off a party’s right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.

    Throughout my career, I have had the following situation happen to me several times. I meet a potential client, listen to her story, and start to believe she has a potentially good case supported by solid evidence. Intrigued, I ask her, “when did this all happen?” Her response is something like: “about 7 years ago.” My initial enthusiasm then turns to disappointment as I realize that the statute of limitations expired years ago, completely extinguishing her right to sue.

    One of the biggest mistakes parties without an attorney (known as pro se or pro per parties) and new attorneys make is failing to realize that the statute of limitations has expired on their claims. You could have the best facts in the world—but if you blew the statute of limitations—your case is probably toast.

    What are statutes of limitation?

    Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.

    For example, in the fictional State of Atlantis, the statute of limitations for personal injury claims is two years from the date of incident. On January 5, 2017, Dale Defendant smashes his speeding car into Patrick Plaintiff, breaking Patrick’s legs. Patrick has until January 5, 2019* to file a lawsuit. If Patrick files the lawsuit after January 5, 2019, he has blown the statute of limitations and most likely cannot sue.

    Even though judges are sometimes slightly more lenient with pro se / pro per parties, they will not (and cannot) allow you to proceed with your lawsuit if you blow the statute of limitations (even if you are pro se / pro per).

    Generally speaking, statutes of limitation control the time a party has to file a lawsuit—not the time to litigate it. This means that Patrick must file his lawsuit by January 5, 2019, but the lawsuit can proceed in the court system through trial (if necessary) after that date. In other words, if the case goes to trial in September 2020, there is probably no issue with the statute of limitations, because the lawsuit was timely filed.

    How do you figure out the statute(s) of limitations for your claim(s)?

    Each state sets its own statutes of limitation. Depending on the type of claim, different statutes of limitation may apply, and they may be calculated in various ways. Some statutes of limitation may be as short as 1 year; others may be 2, 3, 4, 5 years, or even longer.

    Keep in mind there may be more than one statute of limitations for your claims. For example, you buy a house that has multiple construction defects that the seller failed to disclose during escrow. You decide to sue pro se / pro per for (1) breach of contract, and (2) fraud. Let’s say that in your state, the statute of limitations for breach of contract is 4 years, but the one for fraud is only 3 years. In this scenario, the safer bet would be to file the lawsuit within 3 years so you do not blow the statute of limitations for the fraud claim.

    To ensure you do not miss the statute of limitations, research the law in your state as soon as you begin considering a lawsuit. If you can afford to hire an attorney—or at least get free legal resources from a self-help center—you will probably be better off. Be sure to write the statute of limitations date in your calendar and set a reminder so you do not miss it. Even a one-day delay could kill your case!

    Can the statute of limitations be extended?

    Under certain circumstances, a statute of limitations may be “tolled,” which is basically a fancy legalistic way of saying “extended.” Read your state’s laws and court rules to determine under what circumstances (if any) the statute of limitations may be tolled.

    States have different grounds for tolling the statute of limitations. Here are some common grounds—but each state is different:

    A party is/was in the military and deployed overseas; A party is/was under 18 years of age; A party is/was mentally disabled or incompetent; A party is/was incarcerated; A party is/was in bankruptcy; or A party is/was deemed insane Better to be safe than sorry.

    Even if there are grounds to toll the statute of limitations, do your best to file within the statute’s time period rather than assuming it will be tolled. For example, let’s say you are 2 years into a 3-year statute of limitations, but you believe the statute should be tolled because your opponent was deployed overseas for six months. The safer choice would be to file before you hit the 3-year mark, rather than waiting 3.5 years and hoping that the judge rules in your favor that the statute of limitations has been tolled.

    What if you file a lawsuit after the statute of limitations?

    If you file a lawsuit after the statute of limitations expires, your opponent may file a motion to dismiss (in some states known as a demurrer). You will have the opportunity to oppose the motion and explain why you believe the statute of limitations has not expired (or has been tolled).

    If your opponent wins the motion/demurrer, your case will be dismissed and the judge may order you to pay your opponent’s litigation costs. If the judge believes your lawsuit was frivolous, he or she may impose money sanctions against you, even if you are representing yourself pro se / pro per.

    As you can see, understanding the statute(s) of limitation for your case is extremely important. Failing to timely file your lawsuit could be disastrous to your case and a waste of your precious time and money.

    The acronym for statute of limitations—S.O.L.—is the same as s**t out of luck. Coincidence?

    Are you a new attorney or pro se / pro per party looking for help? Check out Justice Navigator!

    * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

  • Before you even consider filing a lawsuit, you must determine whether it makes financial sense for you to proceed. In this episode, we discuss some important factors to consider when evaluating the economic wisdom of proceeding with a lawsuit.

    __________________

    You are ready to file a lawsuit.

    You have identified who (or what) to sue.

    If you are representing yourself without an attorney (pro se or pro per) you have researched your state’s law and determined what causes of action to include in your complaint.

    You are ready to pull the trigger—prepare a complaint, file it in court, serve your opponent with it, and start your pursuit of justice.

    There is just one step left . . . and it is an extremely important one! You have to determine whether it makes financial sense for you to proceed with a lawsuit. You must balance your expected recovery (what you hope to get out of the lawsuit) against your litigation costs AND your opponent’s ability to pay off a potential judgment.

    You could have the best lawsuit ever—but if it is going to burn a hole in your wallet—it is probably not worth your time and money!

    Common litigation costs you may encounter

    Depending on your state, county, city, etc., court fees and litigation costs may differ. Here are some common expenses you may need to pay:

    Initial pleadings: If you are a plaintiff, filing your initial complaint could cost anywhere from a few dollars to a few hundred dollars. If you are a defendant, the same applies to the cost of filing an answer or other responsive pleading. This applies whether you have an attorney or are representing yourself pro se / pro per. Service: “Service” is a fancy-schmancy legal term that means “officially delivering legal documents.” Some pleadings (e.g., complaints, subpoenas, and more) need to be served personally—meaning someone (other than you) has to personally hand them to the recipient. If personal service is required, you may need to pay a process server, sheriff, or marshal to serve those documents. Postage: Most (if not all) jurisdictions allow litigation documents to be delivered by mail. E-mail is usually not an allowable substitute. One or two letters might not break the bank, but if your case involves a lot of documents, postage fees could add up. Photocopying fees: Photocopying documents—even at a good rate of a few cents per page—can result in a very expensive bill. Depositions: A deposition is a question-and-answer session where a party can ask her opponent questions. Depositions are transcribed by a court reporter (AKA stenographer). Depositions can be expensive, especially if videotaped. Deposition transcripts cost anywhere from $2-5 per page. A single transcript could cost hundreds of dollars. A video copy will cost extra. Parking and travel costs: Court parking might not break the bank, but a few visits at $5, $10, or even $20 a pop could make a dent in your finances. Trial exhibits: If your case goes to trial, you may want to prepare exhibits for trial (e.g., documents, blowups, posters, samples, etc.). These all cost money. Expert witnesses: If your case requires an expert witness, that could cost hundreds of dollars per hour. You will need to pay the expert for her time reviewing any materials, writing a report, and preparing for and testifying at depositions and trial. Some experts also require payment for travel costs, parking, mileage, and hotel accommodations, if necessary.

    Check to see if you qualify for a fee waiver that would allow you to proceed without paying any (or some) court fees. Every jurisdiction is different, but this usually involves filing an application or motion to waive fees, which a judge then reviews and makes a ruling. You will likely need to produce evidence showing that you cannot afford to pay court fees (e.g., affidavit, declaration, bills, bank statements, etc.).

    As you can see, lawsuits can be very expensive, even if you save money on attorney’s fees by representing yourself pro se / pro per. Do not let this list overwhelm you—I prefer to be overinclusive so you know upfront what costs you might incur. Sometimes surprises suck!

    What if you can recover litigation costs?

    At this point, you might be thinking to yourself: “I don’t care about litigation costs because in my state, the losing party has to pay the winner’s litigation costs, so I’ll just win and get those expenses back!”

    If your state allows you to recover litigation costs, that is great! But remember: you still have to win to recover! That means you will likely have to go to trial, prove your case, and obtain a judgment in your favor.

    If you lose, you are out of pocket for all your litigation costs AND you have to pay your opponent’s costs! Or, if you settle (as do 90-95% of cases), most settlements involve each party “eating” (absorbing) its own costs.

    Even if you win and get your litigation costs back in the end, you still have to come up with the money to finance your lawsuit until the end. If you run out of money midway through your lawsuit, you may end up having to dismiss it.

    Watch your wallet!

    Determine whether your opponent can afford to pay you

    Here is a rhetorical question: How happy would you be if you won a judgment—only to find out that your opponent is broke, unemployed, in serious debt, and cannot pay you a penny? Even worse, if the defendant files for bankruptcy, your right to collect the judgment will probably be terminated.

    To avoid this disaster scenario, you should find out early on whether your opponent has the financial wherewithal to pay you if you win. Do some basic online research (e.g., Google, Bing, etc.) and social media (Facebook, Instagram, etc.). Is he employed? Does he drive a nice car? Does he appear to have disposable income (vacations, restaurants, property, possessions)?

    You can also try searching public records in your state/county/city to determine whether he owns property, such as homes, cars, boats, etc. The more you know about your opponent’s assets—or lack thereof—the better position you will be in to determine whether you are likely to get paid.

    Researching a business’s financial situation is a bit trickier than a person, but there are still things you can do. Drive past the business. If it is a retail establishment, restaurant, or store, are there people going in and out? Does it appear to be relatively successful? Does it own any equipment, vehicles, or merchandise? Does it have a legitimate website and social media presence? Read any reviews or articles you find relating to that business.

    You can also search public records to determine whether the business or individual has outstanding judgments or liens (e.g., taxes, child support, alimony, criminal penalties, etc.).

    There are also online services you could use to check whether your opponent has any prior or pending bankruptcies, lawsuits, judgments, liens by creditors, court orders for garnishment of wages, child support, or alimony. These services may even be able to tell you whether your opponent has property, personal possessions, and a job.

    If you discover unpaid judgments and liens, that is a red flag. It means that other parties have had a hard time collecting from your opponent. You may very well run into the same problem…

    One last word on this topic: Just because a person or business is broke does not necessarily mean pursuing a judgment is pointless. The future is uncertain. A person can eventually inherit money, start a successful business, or sell off property. Depending on the state, judgments may be valid for 10-20 years, and can often be renewed. The big question is: How long are you willing to wait to recover your money… if ever?

    Conclusion

    Before filing a lawsuit, be sure it makes financial sense. If you rack up expenses beyond what you recover, you are in a worse position than you would be without the lawsuit. Likewise, if you sue a person or business that is broke or contemplating bankruptcy, you will probably have a hard time enforcing your judgment.

    Like many things in life, justice ain’t cheap.

    Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter and Instagram.

    * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

  • You may not recognize the term exculpatory clauses; however, it may surprise you to learn that you have signed dozens upon dozens (if not hundreds or thousands) of them. In fact, you may have even signed one today!

    You have “agreed” to an exculpatory clause if you: (1) had a valet park your car; (2) received medical treatment of almost any kind; (3) signed a residential lease; (4) gone skydiving; (5) checked your coat in at a restaurant; (6) swam in a hotel pool; (7) used software or applications and clicked “AGREE” to the terms and conditions; (8) attended a concert; (9) gone on a cruise; and much, much more.

    Exculpatory clauses are agreements that relinquish a person’s right to hold another party liable for certain (or all) wrongful conduct. These clauses were once only used in connection with inherently dangerous activities (e.g. skydiving, white-water rafting, etc.) but can now be found in a seemingly endless array of activities, consumer products, and services.

    Exculpatory clauses are everywhere… but are they enforceable? (SPOILER ALERT: YES… and NO)

    In this episode, I interview Professor Scott J. Burnham, the Curley Professor of Commercial Law at Gonzaga University*, and author of Contract Law for Dummies, The Contract Drafting Guidebook, and Drafting Contracts. Professor Burnham guides us through the intricacies of exculpatory clauses and helps us understand the competing societal interests of freedom to contract vs. the right to hold wrongdoers accountable for their negligent, reckless, and intentional acts and omissions.

    For further reading, please see Professor Burnham’s excellent law review article on exculpatory clauses: Are You Free to Contract Away Your Right to Bring a Negligence Claim?, 89 Chicago-Kent Law Review 379 (2014). It is available at http://studentorgs.kentlaw.iit.edu/cklawreview/issues/vol-89-issue-1/

    Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter and Instagram (https://www.instagram.com/thelegalseagull).

    * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

    ** The views expressed in this podcast episode are those of Professor Burnham and not those of Gonzaga University or Gonzaga University School of Law.

  • In this second part of our two-episode series on basic U.S. contract law, we discuss the various defenses to contract formation and breach, including: lack of acceptance, lack of consideration, lack of capacity, illegality, violation of public policy, unconscionability, ambiguity, misrepresentation, duress, Statute of Frauds, rescission, impossibility, prevention of performance, failure of condition precedent, and accord and satisfaction.

    Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter and Instagram.

    * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer