Attorney Ed Napier

Ten Tips for a Successful Uncontested Divorce

2010-11-28T16:03:00.000-08:00

An uncontested divorce is where both parties agree on all issues involved in the divorce, including property division, child support, custody, visitation, and alimony. The key is that both parties “agree”. If you don’t agree, an uncontested divorce is not for you.

With that in mind, here are some tips to help you succeed.

Make sure you both want a divorce. If you want a divorce, but he doesn’t, then there’s no need to have an in-depth conversation about who gets the Buick and who gets the FORD. If both of you do not agree that the marriage is over and it’s time to divorce, then you either need a marriage counselor or a contested divorce.
Understand the benefits of pursuing an uncontested divorce. An uncontested divorce is the fastest, easiest, and least expensive way to get a divorce. Instead of measuring the cost in thousands of dollars, you will measure it in hundreds. Instead of measuring the length of divorce in months, you will measure it in days. These tangible benefits are something that both parties should know and keep in mind.
Put grudges aside. You’ve both agreed you want a divorce and that you want to do so as quickly and easily as possible. Now is not the time to try and settle a score or punish you spouse. Who did what to whom is not a factor.
Develop a Business Attitude. - Focus on being in the best position you can the day after your divorce. Dealing with your spouse is “just business” – it’s not personal. Approach issues in divorce the same way you would issues in the business world. Know what is reasonable, what is not, and try to keep your emotions in check.
Agree on what needs to be settled. – Start the discussion by trying to agree on what you need to settle. Custody, child support, alimony and property division are all typical areas in the divorce. Make sure you both know what the issues are that have to be settled.
Begin with something easy. – Once you know the areas you need to agree upon, try and pick something easy to being with. It will help you both realize that it’s not impossible to settle this between the two of you. Also, early momentum may help you tackle the tough issues later on.
Kids are not property. - Do what’s best for the kids – period. Remember that the children want to spend time with both of you. Have a candid discussion about what is best for the children and while doing so, remember they are not steak knives or bank accounts. Custody is not something you “win”; it’s something you earn.
Negotiate in Good Faith. – Realize that neither one of you is going to get everything you want. There has to be some give and take. Remember, if you go to court you are leaving everything up to a Judge.
Don’t be petty. – You don’t really care about that dining room table do you? There are hundreds out there for sale, new and used, and none of them cost as much as going to court over your divorce.
Hire a professional. - You’re not hanging drapes or finishing the deck. If you screw this up, it can’t be fixed in an afternoon. A professional will know the range of possibilities and help you understand what the ramifications of your decisions will be in the future. If you’re smart enough to try and solve your problems out of court, don’t be stupid about how you do it. Don’t be penny wise and pound foolish.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Theft by Shoplifting - What to do?

2010-11-21T17:14:00.000-08:00

What is Theft by Shoplifting?

If you or someone you know has been charged with Theft by Shoplifting, then you need to know some basics. Please be aware that these are just the basics. The official code section is O.C.G.A. § 16-8-14.

Georgia Definition of Theft by Shoplifting

A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following:

(1) Conceals or takes possession of the goods or merchandise of any store or retail establishment;

(2) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;

(3) Transfers the goods or merchandise of any store or retail establishment from one container to another;

(4) Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or

(5) Wrongfully causes the amount paid to be less than the merchant's stated price for the merchandise.

Most convictions are obtained based upon (1) above. It is important to realize that a person does not have to actually take the merchandise out of the store in order to be charged.

Punishment for Theft by Shoplifting

If the property allegedly stolen is less than $300 in value, then the offense is a simple misdemeanor and the max punishment is one year of confinement and a $1000 fine. If the property value is $300 or more, the offense is a felony and the possible sentence is a maximum of 10 years.

Finally, a fourth shoplifting offense is automatically treated as a felony regardless of the property value.

Possible Defenses to Theft by Shoplifting

This is not meant to be an exhaustive list of all possible defenses. Every situation is unique and must be considered based upon the facts associated with the specific case. Having said that, here are some things to consider.

Not me – you got the wrong guy (or gal).
I was going to pay. (Read the cases below)
The property does not cost $300. (for felony cases)
Mistake – I didn’t realize I didn’t pay for that.

Interesting Cases concerning Theft by Shoplifting

Racquemore v. State, 204 Ga. App. 88, 418 S.E.2d 448 (1992) - The state proved the element of intent to appropriate the merchandise for defendant's own use, where defendant was seen stuffing two packages of meat into the waist of defendant's trousers and pulling defendant's shirt down over them, but returned the meat to the display case after the store security guard and store manager started watching defendant's actions and following defendant.

Taylor v. State, 270 Ga. App. 637, 607 S.E.2d 163 (2004) - Because a co-manager of a grocery store saw defendant, who was pushing a shopping cart, take a package of ham hocks and some tomatoes and place them in defendant's purse, and when defendant approached the checkout counter, the co-manager confronted defendant and defendant retreated into the store and discarded the two items on a display, the evidence was sufficient to support a shoplifting conviction; the question of whether defendant's placement of the goods in the purse showed an intent to commit theft by shoplifting was one for the jury and the conviction was affirmed.

Simmons v. State, 278 Ga. App. 372, 629 S.E.2d 86 (2006) - Defendant's act of concealing liquor bottles in the defendant's pants, with no intent to pay for them, despite the fact that the defendant put the bottles back on the shelf before leaving the store, was sufficient to support a conviction.

What should I do?

Pick up the phone and call. My office number is 678-383-1690. I will discuss your case with you and help you determine what the next step is.

Removal from Georgia Sex Offender Registry

2010-11-03T12:53:00.000-07:00

Overview

In most cases, the most severe criminal sanction involves incarceration. However, in cases involving sex offenses, a lifelong requirement to register as a sex offender is a disastrous consequence preventing individuals from obtaining employment and pursuing other endeavors. Many defendants find the lifelong registration requirement devastating.

There is good news. Recently, the legislature enacted O.C.G.A. § 42-1-9, a means by which certain Sex Offenders may seek removal from the Sex Offender Registry. It is not easy and it is not available to every offender. The first step is to determine eligibility.

Specifics

Everyone on the registry wants to be removed. What does it take? To be eligible, the offender must fall in one of the four categories:

1.) Disabled Persons: The Offender must have completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; and

· be confined to a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home; or

· be totally and permanently disabled as such term is defined in Code Section 49-4-80; or

· be otherwise seriously physically incapacitated due to illness or injury;

2.) Romeo & Juliet: The Offender was sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006, and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2;

3.) Non-sexual Offense: The Offender was required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor. For purposes of this paragraph, the term "sexual offense" means any offense listed in division (a)(10)(B)(i) or (a)(10)(B)(iv) through (a)(10)(B)(xix) of Code Section 42-1-12; or

4.) Everyone Else: The Offender has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2. and

· either ten years have elapsed since the end of the sentence or

· the Offender is considered a Level I risk by the Sex Offender Review Board.

The disqualifiers mentioned in O.C.G.A. § 17-10-6.2 are:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

Next Steps

If you meet the eligibility requirements, then you may file a Petition for Removal from the Sex Offender Registry. Additional requirements exist regarding venue, proper service of the petition, proper requirements for requesting a hearing, and necessary requests for relief. Therefore, the assistance of legal counsel is critical. Should your Petition fail for some reason, you must wait two years to file another Petition.

If you need help, call me at 678-383-1690 or visit my website at http://www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Georgia First Offender Act

2010-10-30T06:06:00.000-07:00

Georgia First Offender Act

The First Offender Act is an alternative sentencing mechanism that allows someone to accept responsibility for a mistake, pay his or debt to society, and avoid the label “Convicted Felon”.

Sentencing under the First Offender Act is discretionary and only available once. O.C.G.A. § 42-8-60 states:

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:

(1) Defer further proceeding and place the defendant on probation as provided by law; or

(2) Sentence the defendant to a term of confinement as provided by law.

Pursuant to O.C.G.A. § 42-8-62, “[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8- 63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.”

The First Offender Act is a “double-edged” sword. Under O.C.G.A. § 42-8-60, “[u]pon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law.”

What happens if I violate the terms of probation

Upon a revocation of a defendant previously sentenced under the First Offender Act, the Court which sentenced the defendant may resentence him/her to the maximum sentence penalty allowable under the law.

What Crimes are not available for First Offender Treatment

First Offender Sentencing is not available to defendants in the following classes of cases:

(1) A serious violent felony as defined in Code Section 17-10- 6.1;

(2) A sexual offense as defined in Code Section 17-10-6.2;

(3) Sexual exploitation of a minor as defined in Code Section 16-12-100;

(4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1; or

(5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2.

Interesting First Offender Cases

Wilson v. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003) - Under O.C.G.A. § 42-8-60(a), a trial court may place a first offender defendant on probation or sentence the defendant to a term of confinement as provided by law and nothing in the statute mandates a probationary period for first offenders; on the contrary, a trial court exercises its discretion in determining whether to grant probation to a first offender. Therefore, defendant, who was sentenced as recommended by the plea agreement, properly had defendant's motion to correct sentence denied.

State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009). After a defendant was convicted for statutory rape, the trial court lacked jurisdiction to resentence the defendant as a first offender or to rescind the conviction or confinement portion of the sentence. First offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced.

Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983). The trial court does not err in imposing a greater sentence on defendant than the original first offender sentence, in revoking defendant's earlier probation, where the first offender sentence of probation plainly stated, "If such probation is revoked or cancelled, the court may adjudge the defendant guilty of the above offense and impose any sentence permitted by law for the ... offense."

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Aggravated Assault in Georgia

2010-10-29T05:55:00.000-07:00

What about Aggravated Assault?

If you or someone you know has been charged with Aggravated Assault, then you need to know some basics. Please be aware that these are just the basics.

Georgia Definition of Aggravated Assault

A person commits the offense of aggravated assault when he or she assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or

(3) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

Punishment for Aggravated Assault

Generally, the punishment is a max of 20 years. However, depending on the status of the victim, there can be certain mandatory minimums and higher maximums.

Possible Defenses to Aggravated Assault

Not me – you got the wrong guy (or gal).
Self-Defense – I was afraid for my safety or someone else’s safety.
No deadly weapon – I had a cell phone not a gun;
Victim didn’t know – The victim was unconscious, asleep, or otherwise incapacitated. (Patterson v. State, 192 Ga. App. 449, 385 S.E.2d 311).

Interesting Cases concerning Aggravated Assault

Robertson v. State, 245 Ga. App. 649, 538 S.E.2d 755 (2000). - When a defendant intentionally shoots several times into a group of people intending to harm only one of them, a jury would be authorized to find defendant guilty of aggravated assault against each person in the group.

Miller v. State, 292 Ga. App. 641, 666 S.E.2d 35 (2008). In an aggravated assault case, since no witness saw a weapon or "sharp instrument" as alleged in the indictment, evidence that as a result of the defendant's attack, the victim suffered a clean cut from the forehead to the lip was sufficient to allow the jury to infer that the wound was caused by a sharp instrument. Evidence as to wounds inflicted was sufficient for a jury to infer a weapon's character.

Haugland v. State, 253 Ga. App. 423, 560 S.E.2d 50 (2002). Jury could find that a defendant's hands and feet, depending upon their use, wounds inflicted, and other surrounding circumstances, were deadly weapons or objects likely to result in serious bodily injury when used offensively against a person for purposes of aggravated assault under O.C.G.A. § 16-5-21(a)(2).

What should I do?

Pick up the phone and call. My office number is 678-383-1690. I will discuss your case with you and help you determine what the next step is.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Intoxilyzer 5000 – can it be trusted?

2009-10-10T09:14:00.000-07:00

Intoxilyzer 5000 – can it be trusted?

Driving Under the Influence (DUI) is a serious crime in Georgia. Would you want to be convicted of a DUI based upon a reading by a machine that other states legally declare as “unreliable”.

There are two types of DUIs related to alcohol. One involves being under the influence to the extent that you are a less safe driver. The other type is what is known as “per se” DUI. It requires a blood alcohol content (BAC) of .08 or higher. Law enforcement in Georgia often relies upon a machine know as the Intoxilyzer 5000 to determine what a driver’s BAC level is. Florida has declared the Intoxilyzer 5000 unreliable based upon testimony from experts in the field.

The primary issue with the Intox 5000 is how the machine calibrates. The Intox 5000 is only checked once per month to insure the accuracy of its results. The currently accepted practice and recommended by most experts in the field requires that a control test be conducted prior to each actual test to insure that results are, in fact, accurate.

Moreover, in Florida, results from the Intox 5000 can no longer be introduced as evidence. However, Georgia still relies upon, and allows into evidence, Intox 5000 tests. If Florida doesn’t trust it, why does Georgia? Does Georgia have lower standards than Florida?

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

What is a Criminal Trial in Douglasville like?

2009-09-24T16:25:00.000-07:00

Most people have no idea what it is like to experience a trial – either from the perspective of a juror, witness, or defendant. As a witness, the experience seems confusing and boring because you spend most of your time waiting to testify outside the courtroom. As a juror, the experience is probably a mixture of boredom, excitement, and frustration because you will see almost everything but not quite. As a criminal defendant the trial experience is a drag race with no helmet, doors, seatbelt or floorboard. You experience everything with the knowledge that your life hangs in the balance.

The trial experience actually begins days or perhaps even weeks before the actual trial with the “Calendar Call.” The Calendar Call is a show-up and “shut-up, or put-up” event. During the call of the calendar, each attorney has to announce whether the case is going to trial. If the State (prosecution) announces “ready”, the defense must either be ready to go to trial, willing to accept the state’s plea offer, or have some explanation as to why the case is not ready for trial. In Douglas County, it is not unusual for 50-100 cases to be on the trial calendar. If both the State and the Defense announce “ready”, you will have to report back at the start of the trial week.

Start of trial week is still uncertain. Your case may be the first out, or it may be down the list. If it is not first out, you will be put “on-call”. You may be called in later during the trial, but if you are not, you will be put back on the calendar call for the next month and the process repeats. I have several cases that have been on 10 or more calendars without ever being tried. Likewise, I have had cases that were on only one calendar and tried the first week. In general, the District Attorney controls which cases will get tried and which will not. Weak cases will not go to trial unless they have nothing else to try. Cases which the DA thinks are strong will go to trial right away.

The beginning of the trial starts with voir dire. This is the process of selecting jurors who are impartial and fair to both sides. A panel of 12-14 jurors is put into the jury box and the attorney for the State begins questioning the jurors. Next, the attorney for the defendant asks questions. Questions may cover just about any topic so long as they do not ask the jury to prejudge the case. Since most cases that go to trial are very close, I believe voir dire is the most important part of the trial. An experienced attorney will know exactly what kind of juror he is looking for and what questions to ask to determine who is and who is not that kind of juror.

After voir dire, each side makes an opening statement. The opening statement is just a preview of what each side expects the evidence to be. Openings are not supposed to have any legal argument and are therefore rarely dramatized in movies or TV. However, research shows that most jurors actually make up their minds by the end of opening statements and rarely change from their initial judgment. Therefore, a powerful opening statement that clearly communicates the theory of your case is more important than all the fancy one-liners watched in the movies.

After opening statements, the prosecution presents its case. Witnesses will normally include law enforcement officers, the victim, and maybe scientific testimony if the case requires it. After the prosecution finishes the direct examination of each witness for the State, the Defense is allowed to cross-examine the witness.

After the State has presented its case, the Defense is allowed to call any witnesses it wishes. It’s important to note that the Defense does not have to call any witnesses because the “burden of proof” belongs to the prosecution. Additionally, although the Defense may call any witness it wishes, the defendant does not have to testify. The Court may not order the defendant to testify and the State may not call him as a witness.

Following the Defense case, the prosecution may call rebuttal witnesses if they so choose. If they do not, the case will proceed with closing. Closing is the part the lawyers like because we get to be dramatic and persuasive while we try to impress everyone in the Courtroom. However, in my opinion, closings are mostly for show. At best closings are simply icing on the cake. Icing won’t make a dry cake taste good; likewise a powerful closing won’t make a poor case a winner.

Following closing, the Judge will charge the jury on the law. The jury will then retire to the jury room and deliberate. Deliberations can last minutes, hours or days. If the jury has questions, they will send a note to the Judge, who will then consult with the Attorneys and formulate a response. Once the jury reaches a verdict, they will return to the Courtroom and the clerk or the foreperson will read the verdict.

As you can see, a trial is a complicated event. I often see people who have not been trained try to act as their own attorney in Court, which I always consider to a fatal mistake. For example, how does a lay person know when the prosecution is attempting to introduce impermissible hearsay (as opposed to permissible hearsay). What if the prosecution asks a question that puts the Defendant’s character at issue? What if the prosecution objects to a question on the basis of improper foundation? Simply put, if you represent yourself in a criminal trial, you have a fool for a client.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Be Careful what you say online

2009-09-16T07:11:00.000-07:00

The Internet is making the world smaller, faster and more productive. One hundred years ago, it could take days to get a message from one side of the country to the other. Now, it takes seconds. Whether we are texting, tweeting, or emailing, we are all so wired that we can communicate virtually anywhere with anyone.

Nevertheless, rules of the old world still apply. Before cell phones and the Internet, there were do’s and don’ts. For instance, you couldn’t call your next door neighbor a murdering thief, unless he really was one (in which case you probably wouldn’t want to). If you did falsely accuse your neighbor of being a criminal, your neighbor could sue you for defamation – more commonly referred to as slander (spoken word) or libel (printed word). These rules still apply on the internet. Often, I encounter people who believe anything goes on the “Internet”

However, I am here to tell you that defaming someone online will still cost you money. There are no special statutory exemptions for statements made online. A good example of how this plays out in our local community can be found at this url. A number of posters to the TOPIX forum mistakenly believe that because what they say is online opinion, their speech is somehow protected. IT IS NOT PROTECTED. Therefore, be careful what you say online. It may be tempting to hide behind what you believe is cyber anonymity, but ultimately it may cost you significant sums of money.

Defamation is not the only way your online presence can get you in trouble. Attorneys, doctors, and others who have special restrictions can get in trouble quick when they forget the rules still apply to online speech. Here is a wonderful article about the missteps and mishaps of barristers who mistakenly believed special rules apply in the cyber world.

Bottom line, speech is speech. It doesn’t matter if its spoken online, in a checkout line, or a telegraph line (they do still exist). YOU ARE RESPONSIBLE FOR WHAT YOU SAY.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Georgia's Speedy Trial Demand

2009-09-15T08:00:00.000-07:00

If you know anyone that has been involved in a criminal proceeding, you also probably know that the process can drag on for what seems like forever. Quite often, it is in a Defendant’s best interest for the case to drag on for what seems like forever. However, in certain situations, the Defendant is better served by having his or her case resolved quickly. The key to making this happen is Georgia’s Demand for Speedy Trial which can be found at O.C.G.A. § 17-7-170.

The speedy trial statute allows a defendant to file a motion that requires the state to try his case within the current “term of court” that the demand is filed or the next term thereafter. If the case is not tried within that period, then the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

Example: Defendant is indicted for shoplifting in Douglas County. The alleged offense occurs in December. She is indicted the following March by the Grand Jury. Douglas County has two terms of court running from April to October and from October to April. Assuming the Defendant files the motion for speedy trial before the end of the current term, the case must be tried before the second Monday in October. If the case is not brought to trial, the defendant is automatically acquitted of all charges.

A defendant that demands a speedy trial must take precaution that he or she does not waive the demand. If the defendant takes affirmative actions that cause the case to be delayed, the demand is effectively waived. Such affirmative actions include a motion for continuance, not appearing for a calendar call, and challenging the jury pool.

In the right case a demand for speedy trial can be an effective tool. However, it should be undertaken only with proper consideration given to all the circumstances of the case. Proper legal counsel is essential.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Sitting and Waiting in Court

2009-05-27T15:10:00.000-07:00

If you are ever involved in litigation, especially in Douglasville, what you will soon learn is that going to Court involves a lot of sitting and waiting. There will be days when you go to Court, and just sit, and sit, and sit.

When most folks watch TV or read a book or go to a movie, they always see people just walk into court and the case immediately starts. What is never shown on the big screen or written about in the legal thrillers is the constant waiting and waiting. These delays happen for a number of reasons.

First, the way Courts in Douglasville schedule cases is very inefficient. No queuing techniques are ever considered. Everybody reports at the same time and cases are just taken one at time until all cases are done or the Court day is concluded. Imagine a doctor's office that told it's patients, "Everybody be here at 9 a.m., and we'll do our best to see everybody before the day is over." My personal opinion is that a better scheduling system would result in less delay.

Secondly, courts are crowded because there are simply too many cases. You can't put seven gallons of water in a five gallon bucket. Domestic relations cases, divorce, custody, contempt, etc., are the main problem. The Georgia legislature continues to make domestic relations issues more complicated, which in turn takes the court longer to hear them and attorney's longer to prepare. Consequently, domestic cases are clogging up the Superior Court system in Douglas County.

So, what can be done? I have two recommendations. First, we should add another Superior Court Judge in Douglas County. Second, we should implement any type of scheduling system that resembles something other than a stampede.

They scheduling system doesn't have to be elaborate; it could be as simple as what most deli counters and barber shops implement - "take a number". If for instance a potential litigant had the choice of being #20 next week or #3 a month later, an intelligent choice could be made. Standing orders could require numbers 1-10 to show up at 9 am, slots 10-20 at 11 am and so on and so forth.

Finally, even if my suggestions aren't actionable, the community needs improvement. Access to the court system is necessary for our society to function. However, until we get improvement in Douglas County, my only suggestion to the citizens that have to appear: "Bring a book."

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Georgia Parenting Plans

2009-05-21T04:47:00.000-07:00

Effective January 1, 2008, any custody proceeding involving minor children requires a parenting plan. So what is a parenting plan? Well, here is what the legislature requires in a parenting plan as outlined in O.C.G.A. § 19-9-1:

1. A recognition that a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest;

2. A recognition that the child's needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;

3. A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and

4. That both parents will have access to all of the child's records and information, including, but not limited to, education, health, extracurricular activities, and religious communications.

5. Where and when a child will be in each parent's physical care, designating where the child will spend each day of the year;

6. How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;

7. Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;

8. Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;

9. An allocation of decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and

10. What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent's right to access education, health, extracurricular activity, and religious information regarding the child.

I know that seems like a tremendous amount of information to put together in a plan. However, in general, these plans are good things because they force parents to think about how things are going to be handled. Actually, a little bit of hard work and expense in the beginning can pay big rewards (in terms of smooth relations) later. As an example, if parents sit down and think about who will be responsible for transportation, who will make the decision for which baseball team the child will play , who will stay home with the child when he or she is sick, etc., then when these events actually occur, each party knows ahead of time what is expected of them. By knowing ahead of time what your responsibilities and expectations are, each parent can focus their energy on dealing with the event or obligation instead of arguing about who does what and why. Remember the old saying, “those who fail to plan, plan to fail.”

So what does a parenting plan look like? You can find one here. But there is no “set in stone” format for what one should look like. It’s not an IRS form or anything as structured as that. Many attorneys, and some courts have a preference but the legislature does not dictate what the plan has to look like.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Fighting Back Against Insurance Companies

2009-05-18T01:32:00.000-07:00

Don’t you hate getting taken by insurance companies? I know most folks do. You pay them tons of money, for years at a time, and then when you need them, they turn their back on you. Insurance companies love to take your money, but they hate to pay your claims. They pull out every exclusion and nickel and dime you to death. Well, you can fight back, and here’s how.

In Georgia, we have what is known as a “Bad Faith” statute. O.C.G.A. § 33-4-6 requires an insurance company to pay for a loss covered by insurance within 60 days of a proper demand. If the insurance company does not pay the demand within 60 days, the insured is entitled to recover an extra 50% of the liability or $5000 whichever is greater, plus reasonable Attorney’s fees.

Let’s illustrate with a real world example. You have a homeowner policy with ACME insurance. The policy insures you against theft of items taken from your home. Someone breaks in your home and steals $4,000 of your stuff. You file a claim with your insurance company, and they refuse to pay. On top of refusing to pay, the “Special Investigator” also insinuates that you may be attempting to commit insurance fraud by filing this claim. At this point, you’ve got two options.

Option 1 is probably the most commonly pursued and the one the insurance company is betting on. You’re mad, insulted, but also busy as heck. It’s just $4,000 and you figure, “It’s just not worth it. They’ve got all the money and power.” So you do what the insurance company predicts, what their mathematical studies indicate is most likely, and you just walk away. They Win. You Lose.

Option 2 is Fighting Back. You talk to an Attorney about O.C.G.A. § 33-4-6. You send ACME a proper demand. The Attorney chews on the “Special Investigator”, the 60 days pass, and your Attorney files suit against the insurance company. The insurance company then sends you a check for $4,000 and you say thank you very much, but we’re still going to teach you a lesson. One of the great provisions of 33-4-6 is that payment after the 60 day window isn’t a defense to the bad faith claim. The insurance company refuses to settle your “Bad Faith” claim. You go to trial, pick a jury, and tell them what a terrible company ACME is. They award you the extra $5000 (because $5000 is greater than 50% of $4000), plus Attorney’s Fees.

I like Option 2.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Obstruction (or Destruction) of Justice

2009-05-16T06:19:00.000-07:00

When you hear the term "Obstruction of Justice", what pops in your mind? If you are like most law abiding citizens, you probably think of a group mobsters trying to intimidate witnesses or a secretary deleting computer files seconds before a search warrant is served.

Well, the purpose of today's entry is to recalibrate your thinking. The crime or charge commonly referred to as "Obstruction of Justice" should really be called "Making a Police Officer Mad." If you find yourself in a situation where you make a police officer mad, the odds are pretty good that you are going to get charged with Obstruction of Justice. In Georgia, Obstruction of Justice is defined as follows:

Obstructing or hindering law enforcement officers:

(a) Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.

(b) Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer, prison guard, correctional officer, probation supervisor, parole supervisor, or conservation ranger in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

Most Obstruction charges arise when people run from police. If you run, you will be charged with Obstruction. What is more interesting is that it doesn't matter if you actually did anything wrong, initially. If an officer has a valid reason for stopping you (an articulable suspicion), and you decide to take off running, you have just hindered his lawful discharge of official duties and you will be charged with Obstruction.

Also, if you lie to a police officer, you will be charged with Obstruction. (lying to him/her is also likely to make them mad). Duke v. State, 205 Ga. App. 689, 423 S.E.2d 427 (1992); Carter v. State, 222 Ga. App. 397, 474 S.E.2d 228 (1996).

What that average citizen really needs to understand is the criminal liability associated with "touching" a police officer. If you touch a police officer during the commission of his/her duties, then you may be charged with felony obstruction, which carries a maximum of five years in prision. Felony obstruction requires that you actually do violence or offer to do violence towards an officer. If you touch a police officer, he will conclude that is violence.

As an example, let's assume that you are watching a 6' 4" officer that weighs 240lbs arrest your pregnant 5' 2", 120lb pregnant daughter. The officer has your daughter down on the ground with his knee in her back while she screams for you to help her because she can't breathe. If you touch the officer and ask him to stop, you will be charged with felony obstruction.

So what’s the moral of this BLOG? It’s simple, “Don’t make a Police Officer mad.” If you do, the odds are very good that you will find yourself arrested.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

How should I pick an Attorney?

2009-05-15T12:22:00.000-07:00

Hello, I am pleased to announce the first publication of my weBLOG. The purpose of this blog is facilitate the spread of information concerning legal services, law, and the practice of law within the Douglasville community.

When individuals choose an Attorney, they often do so based upon little information. Typically, they look for the lowest cost Attorney that will return their phone call the quickest. While value and responsiveness are certainly important criteria, what most people may not realize is that the lowest quote may not be the most economical and that the best attorney may not be able to return a call right away because they are often in Court when you do call. With that in mind I'm going to propose a set of factors for you to consider in deciding on an Attorney:

1. Have they handled a case like yours before?

2. Do they know the other local judges and attorneys that will be involved in your case?

3. What percentage of their practice is dedicated to your particular legal issue??

4. What is their policy regarding phone calls/correspondence ?

5. What is their fee policy?

6. Are they available to work on your case right away?

7. Will they do the work personally, or will they ask someone else to do it?

8. What is their standing with State Bar Association?

9. How many hours do they estimate your case will require?

10. Do they express genuine concern for your situation?

Deciding upon an Attorney could be the most important decision of your life. It may mean the difference between freedom or jail, between having your children with you or with someone else, between getting justice or getting taken. Don't pick a lawyer on the spur of the moment or because they have the lowest fee. Pick an attorney because you trust him or her to care about your case, to know the law, and to fight for you.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.