Personal Injury Blog – Dewoskin Law Firm

What should I do if the other driver leaves the scene of an accident, exchanges information with me but leaves before the police arrive?

Mon, 09 Mar 2020 12:39:00 GMT

Our firm has recently been hired by several different clients involved in car accidents, in which immediately after the accident, our client called the police. While waiting for police to arrive, the at-fault driver provided our client a copy of his or her insurance information, allowed our client to take a photo of their driver’s license and tag, and then drove away from the scene prior to police arriving.

These cases were not minor impact cases in which there were no injuries. These were medium-impact collisions in which our clients were hurt. When police arrived to the scene in each of these cases, the officer refused to write a report for some inexplicable reason. On one occasion, the officer claimed he could not get the other driver’s story and, thus, could not write a report. This is completely incorrect and unacceptable.

So, what should you do if you find yourself in this situation?

O.C.G.A. § 40-6-273 requires that:

“The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $500.00 or more shall immediately, by the quickest means of communication, give notice of such accident to the local police department if such accident occurs within a municipality. If such accident occurs outside a municipality, such notice shall be given to the office of the county sheriff or to the nearest office of the state patrol.”

For these clients, not only have the officers failed to investigate and cite the at-fault driver for causing the collision, they have also refused to write an accident report of any sort. This laziness can and will cause the injured party problems in the near future, as many insurance companies will fail to properly consider or address claims of damage or injury unless there is a police report.

In the situation where our client has a copy of the at-fault driver driver’s license, the best approach for our client may be to forego filing an insurance claim and instead choose to litigate the matter immediately. The hurried, at-fault driver who left the scene will not appreciate dealing with a lawsuit. It would have been much easier if he or she had stayed at the scene of the wreck and had his or her insurance involved from the get-go. But for our client, this may be the best strategy to ensure our client is appropriately and quickly compensated.

When the at-fault driver leaves the scene of the collision, the officer could cite (and arrest) the driver for hit and run. O.C.G.A. § 40-6-270 requires that:

“(a) The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident and shall:

(1) Give his or her name and address and the registration number of the vehicle he or she is driving;

(2) Upon request and if it is available, exhibit his or her operator’s license to the person struck or the driver or occupant of or person attending any vehicle collided with;

(3) Render to any person injured in such accident reasonable assistance, including the transporting, or the making of arrangements for the transporting, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such transporting is requested by the injured person; and

(4) Where a person injured in such accident is unconscious, appears deceased, or is otherwise unable to communicate, make every reasonable effort to ensure that emergency medical services and local law enforcement are contacted for the purpose of reporting the accident and making a request for assistance.

The driver shall in every event remain at the scene of the accident until fulfilling the requirements of this subsection. Every such stop shall be made without obstructing traffic more than is necessary.”

Thus, exchanging information properly negates the need for this type of interaction to be deemed a hit and run. However, the troubles with the insurance company are certain to present themselves when an officer refuses to write the accident report or call the at-fault driver for a statement.

So, what should you do if you find yourself in this situation?

First, call 911 or ask for someone else to call 911. Then use your phone to take photographs and/or video, of the vehicles, any other damage, pictures of the scene, visible injuries, and documentation of anything that could possibly be used as evidence. Depending on the severity of the collision and your injuries, this may not be practical. But do so if you can, provided it is safe.

If there are witnesses present, get the names and contact information of those witnesses, especially if they witnessed the other driver refuse to remain at the scene. These witnesses can be useful when it comes time to process the claim or litigate the matter in court. You should try to persuade the other driver to remain at the scene. While at the scene of the accident, you can alert your own insurance company of the collision, and can inform them that the other driver is refusing to remain at the scene.

If the other driver leaves the scene of the collision before you can get any information – a true hit and run – then your uninsured motorist coverage comes into play. If you are not sure if you have uninsured motorist coverage, stop reading this article immediately and contact your insurance company. Uninsured motorist coverage will be your only avenue to recovery if you are injured by a hit and run driver (this would also apply to drivers who do not have insurance at all).

Although Georgia law does not require you to carry uninsured motorist coverage, failing to have this coverage is the type of mistake that could cost you thousands to hundreds of thousands of dollars. This coverage should not be considered optional when there are thousands of drivers on Georgia’s roads at any given time who, if they hit you, will leave you with no way to recover for your medical bills from them.

Getting back to the issue at hand, it is important that you insist that the officer make a report. Not insisting on a report may seem like the polite thing to do, especially when dealing with a police officer, but in the end that decision can hit you hard in the pocketbook. We represent many clients who come to our firm after a vehicle collision who wish they could go back to those important moments immediately after the accident and do things a different way.

When you or someone you know has been involved in an automobile accident due to the negligence of someone else, call the experienced trial attorneys at the DeWoskin Law Firm at 404-987-0026.

What Happens If I Am the Victim of a Hit and Run?

Mon, 17 Feb 2020 18:23:00 GMT

The number of hit and run accidents that take place in metro Atlanta is staggering. We see clients far more often than we would expect after car wrecks where the other driver takes off into the night. Sometimes, these wrecks are minor, but often, they involve serious collisions with no other driver in sight when the officer arrives at the scene.

Hit and run drivers may take off for various reasons, possibly because they are driving without a valid license or insurance. They may be aware that there are warrants for their arrest for something minor, or perhaps something serious. There are many excuses why the other driver does not stick around, but none of those reasons excuse the irresponsible behavior.

Now, the important thing here is that, if the other driver takes off, there is likely only one insurance company that can even possibly be involved to make things right for an injured driver or passenger. This is the driver’s, or sometimes the passenger’s, own insurance company. This would be a UM, or uninsured motorist, claim with the insured party’s insurance company. If there is no UM coverage, then there would be no real avenue of recovery in this situation. We see far too many of these sorts of cases. After all, many hit and runs are based upon the other driver not having any insurance. Given that this is why they leave the scene in the first place, knowing the identity of the driver is only one factor in figuring out how best to get compensation for our clients who are injured.

Every once in a while, a hit and run driver is caught just after the wreck. This makes for a great case, as the other driver has now opened himself or herself up to claims for punitive damages. Not only may this driver, and the insurance company, find themselves questioning the responsible driver regarding the injuries sustained, but they do so while having to explain why they did not feel the need to hang around for the police.

In one memorable case, we represented a young woman in a wreck where a hit and run driver was followed by an off duty police officer. He faced the officer from the inside of his garage as the door closed, as the officer told him that the police were notified and on their way. The police did come and arrest the young man, and after suit was filed and depositions were taken, it was clear that this young man was responsible for all damages. The insurance company was not happy with the situation, but they ended up paying policy limits instead of explaining why the young man was just scared and that he should not be responsible for punitive damages.

Unfortunately, it is rare that the hit and run driver is actually caught. Atlanta Police Department has a special unit devoted to hit and run accidents. Although you may think this means that they are catching the majority of these folks, the existence of this unit suggests rather how widespread the problem is. They may take the reports, but even their focus is on the most serious of cases with the most serious injuries. Most of these reports will just languish from a criminal justice and accountability standpoint.

For our purposes, although we believe strongly in accountability from a criminal justice standpoint, we are most concerned with getting proper compensation for our injured clients. This is only possible when our clients have proper insurance coverage.

When you or someone you know is involved in an automobile collision due to the negligence of someone else, seek medical attention as soon as possible, follow the advice of your medical professionals, and call the experienced trial attorneys at the DeWoskin Law Firm at 404-987-0026.

What happens to my case if I have been in a car wreck before?

Mon, 27 Jan 2020 21:51:00 GMT

If you have had a driver’s license for any significant amount of time, the chances are you have been in some sort of car accident or collision in the past. It may have been something minor, or perhaps a more serious wreck where you were injured and recovery took more time and treatment than you anticipated. I say this because, unfortunately, car wrecks, especially here in the metro Atlanta and DeKalb area, are extremely common. Drivers are tired, impatient, distracted by cell phones and other things, and often inattentive when they disregard safety rules and traffic laws. This means that, despite your best efforts to drive carefully and avoid collisions, you cannot control what the other drivers around you are doing.

When you are in a car accident, the law in Georgia is that the party responsible for the wreck is legally responsible for the damages that they cause to you. So, if you were injured in a previous wreck, or if you have some other unrelated injury that is aggravated by the impact in a later accident, the other driver is liable for that aggravation. Often, this comes down to a question of what proof can be demonstrated that the other driver is not being held accountable for an unrelated injury, but with thorough documentation, proper treatment, and diligent investigation and legal work, this is usually not a problem.

As an example, we represented Camilla M., who had undergone surgery for an unrelated medical condition just prior to a serious car wreck. The wreck not only caused her significant injuries to her lower back, but required additional procedures to restore the original work done by the surgeon. Significantly, as she was still recovering from surgery at the time of the accident, she was unable to engage in the typical treatment which occurs after an accident. This meant that she experienced additional pain, discomfort, trouble and delay in recovery than a person in her situation might typically have had. Because of this, her damages were more substantial.

Although we had to litigate the case, we were able to resolve it favorably before trial. It meant that we had to gather all the evidence to demonstrate what a jury was going to see in order to persuade the insurance adjuster that this was not just any other car accident case that they undervalue day in and day out. This is not typical, but no two cases are ever identical, no matter how similar the injuries or the circumstances.

I WAS INJURED IN A CAR WRECK BUT I DON’T HAVE CAR INSURANCE. DO I STILL HAVE A CASE?

Tue, 31 Dec 2019 15:03:00 GMT

If you are injured as a result of another person’s negligence, you are entitled under Georgia law to recover all damages that flow from that injury. Typically, this is referred to as a personal injury claim.

In Georgia, especially in the metro Atlanta area, many personal injury claims result from car wrecks. So, what happens if you are injured in a car wreck that is not your fault, and you don’t have car insurance?

The most pressing matter you will face will not be related to your personal injury claim. It is illegal in Georgia to drive without insurance. It is possible – and even likely – that you would be arrested at the scene of the auto collision even if you did not cause the wreck, due to lack of car insurance.

Having said that, your car insurance protects your assets when you are at fault for a car wreck. If someone else is at fault for the wreck, and you are injured as a result of the wreck, you would still have a valid personal injury claim against the negligent driver.

Personal injury cases are complex. You should consult with a trusted attorney about the specific facts of your case. Call the experienced trial attorneys in DeKalb County at the DeWoskin Law Firm: 404-987-0026.

“I have Uninsured Motorist (UM) Insurance Coverage, so I’m good, right?” Maybe not.

Wed, 04 Dec 2019 14:51:00 GMT

You have heard all the nightmare stories about people who do not carry uninsured motorist (UM) coverage. You have read the articles or listened to personal details of Georgians who were rear ended by drunk drivers whose licenses were suspended at the time of the accident, or perhaps people who were hit by someone driving a stolen car, and the injured person was left with thousands and thousands of dollars in medical bills with no way to recover for any of their injuries. So, you did the responsible thing and made sure you purchased uninsured motorist coverage. Problem solved, right? Well, maybe.

There are two types of uninsured motorist (UM) coverage in Georgia, generally, and they are frequently referred to as “Add On” or “Reduced By” UM. In an “Add On” situation, you pay for an additional $25,000 UM coverage or more. So if the at-fault driver hits you and only has $25,000 in coverage, but your damages exceed that $25,000 mark, you would be covered for up to an additional $25,000. Thus, there would be a total of $50,000 in coverage.

In a “Reduced By” situation, given the same factors as above, your $25,000 UM coverage is reduced by the coverage that the at fault driver has. This means that you would get $25,000 from the at-fault driver, but since your policy is only $25,000 of “Reduced By” UM coverage, there is no additional coverage at all. If your “Reduced By” UM was for $50,000 coverage, you would have an additional $25,000 in UM, after it was first reduced by the $25,000 afforded under the at-fault driver’s policy.

Although this can be confusing, it is extremely important that you understand the coverage you currently have. Speak with your insurance company and be certain that you have the coverage you want. Clearly, “Add On” UM coverage is superior and will go much farther toward protecting you in the event that you are hit by a driver with insufficient coverage. As always, if you have any questions about a DeKalb or Atlanta car accident, you are always encouraged to call the DeWoskin Law Firm to speak with one of our experienced and knowledgeable attorneys.

What takes place in a personal injury deposition?

Wed, 06 Nov 2019 16:08:00 GMT

If you are considering filing a personal injury lawsuit as a result of being injured in a car wreck or any other incident in which you are injured as a result of another person’s negligence, it is likely you will be questioned by opposing counsel in a deposition.

Any number of people may be deposed as part of a personal injury lawsuit – you, the defendant, witnesses, and experts (doctors, accident reconstructionists) are the most likely people to be deposed. Each deposition type is different. If you are deposed as the plaintiff, you will be in a room with a court reporter (whose job is to transcribe what everyone says), your attorney, and the defendant’s attorney.

You will be placed under oath just as you would be if you were testifying in court. Opposing counsel will ask you a series of questions. Some of the questions will be designed to learn more about you personally: your education, your employment history, etc. Some of the questions will focus on how the car wreck took place. Many of the questions will focus on your injuries, the medical treatment you received, and the current status of your health as it relates to the injuries you suffered in the wreck.

The answers you give can be used against you if you were to testify differently at trial. For that reason, it is important to thoroughly prepare with your attorneys prior to being deposed. Your attorneys should review the above matters with you, as well as your responses to any written discovery, any exhibits that might be used at trial such as the crash report filed by the responding officer, any photos taken of the scene, and your medical records.

Your testimony during a personal injury deposition can make or break your case. Even if you are doing your best to answer honestly, failure to prepare for the deposition can be costly because you may forget certain details.

If you or someone you know has been involved in a motor vehicle collision in DeKalb County, the Atlanta metro area, or anywhere in Georgia, reach out to the DeWoskin Law Firm. Let us guide you through the process and maximize your recovery. Call us at 404-987-0026.

Texting While Driving

Wed, 16 Oct 2019 20:08:00 GMT

Most Georgia drivers are now aware of the law that took effect in 2018 making it illegal to text or operate a cellphone or similar device while driving. O.C.G.A. § 40-6-241 makes it illegal to even “physically hold or support, with any part of the body” a wireless communications device. It should go without saying that using the phone to text or use a navigation app is also prohibited.

What you may not know is that law enforcement officers and some select others are excluded from this law. When cops, firefighters, or emergency medical services technicians are driving, they are permitted to use their phones or other devices without fear of violating the law, provided it takes place “during the performance of his or her official duties.” In the months and years to come, there will almost certainly be scores of cases and legal decisions that narrow down just what this last phrase means. Was the officer talking to another officer in an emergency situation, or was he or she asking his or her boyfriend or girlfriend what restaurant they should go to on Friday night?

What we know for certain is that driving distracted, especially while texting or looking at a cellphone, is one of the most dangerous activities any driver can engage in. In fact, we might all prefer to be on the road with drunken drivers who are paying attention than sober drivers who can’t be bothered to be concerned for other drivers and pedestrians who might cross their path while they check the score of a game, look up a recipe, or post on social media as they cruise across Georgia roads and highways.

Take a look at this video (*STRONG LANGUAGE WARNING): https://www.youtube.com/watch?v=QoSOEtzWPlU

Vigilance while driving is vital to safety on our roadways. Any parent of a teen driver will tell you that it is not just your driving you need to worry about, but everyone else on the roads. If you are injured in a DeKalb County car accident, or a car accident in any county in the State of Georgia, it is important that you contact a knowledgeable attorney who will consider how the collision took place. It may not always be as obvious, or as documented as the video posted above. The fact that the at-fault driver in the video was a law enforcement officer only demonstrates that, even though they are exempt under many circumstances from the laws against texting and driving, they are not exempt from the dangers that law is designed to prevent.

If you have been in a car accident and have questions about liability or how to recover damages for your injuries, call Dan DeWoskin and Alex Merritt for a free consultation.

What happens if the at-fault driver does not have insurance?

Wed, 25 Sep 2019 13:24:00 GMT

In Georgia, it is illegal to drive a motor vehicle without auto insurance in the amount of at least $25,000.00. Keep in mind that the auto insurance you carry protects your assets in the event you cause a collision.

But what if you are injured in a wreck caused by someone else, and the at-fault driver does not have insurance? If the other driver does not have insurance, who will pay for your medical bills, property damage, lost wages, and other damages resulting from the wreck?

The first possible answer to these questions is still the at-fault driver. The at-fault driver is still responsible for compensating you for any damages arising from his or her negligent driving. But, in this hypothetical situation, there is no insurance company to provide funds. So the issue for you becomes whether or not the at-fault driver is financially capable of fully compensating you.

If the at-fault driver has no money, no income, and no assets, then the at-fault driver will have no way to pay you even if you were able to get a judgment against him or her. And while there are exceptions to the rule, it is more likely than not that a person driving around without insurance has little to nothing to protect. In the legal profession, we call this type of person “judgment proof.” That is, even if you get a judgment against this person, there will be no way to collect your money.

So, what do you do if the at-fault driver is judgment proof? If the at-fault driver has no insurance (or not enough insurance), then you can recover using your UM policy, if you have a UM policy. “UM” can stand for Uninsured Motorist or Underinsured Motorist (although both are not exactly the same). UM is an add-on to a standard insurance policy, and it would be a part of your policy. If you are reading this and do not have UM (or do not know if you have UM), you should strongly consider adding this provision to your policy. You should call your insurance agent and get that set up.

A UM provision provides coverage to you when you are injured by an at-fault driver that does not have insurance or does not have enough insurance. A UM provision can also be used when you are injured by a hit-and-run driver.

This is just the tip of the iceberg when it comes to how to handle a motor vehicle collision when the
at-fault driver lacks appropriate insurance coverage. If you or someone you know has been involved in a motor vehicle collision, reach out to the DeWoskin Law Firm. Let us guide you through the process and maximize your recovery. Call us at 404-987-0026.

Gwinnett County Solicitor’s Office will not prosecute many marijuana cases for the time being

Fri, 09 Aug 2019 18:39:00 GMT

Where a crime takes place in Georgia, and most places, is an extremely important question. Yesterday, the Gwinnett County Solicitor General announced that the prosecutors will not prosecute marijuana possession cases with arrest dates of May 10, 2019 or after due to a law change that pertains to THC levels. https://www.wsbtv.com/news/local/gwinnett-county/this-metro-county-will-not-prosecute-any-more-marijuana-cases-for-now/974261373 .

In essence, it is now more difficult for the State to establish through its available tests beyond a reasonable doubt that the substance the defendant possesses is an illegal substance as opposed to a legal substance, such as hemp.

Now, other counties and municipalities in Georgia, such as our own DeKalb County, Fulton County, and even Atlanta may follow suit. However, Cherokee County is not likely to adopt this view. In most Georgia counties, a misdemeanor marijuana charge would carry a fine, perhaps some community service, and, in the most serious cases, such as a repeat offender situation, a period of time on probation. In Cherokee, we see negotiated plea offers that require random drug tests, significant jail time (30+ days), exorbitant fines, requirements to attend drug court, and DUI Risk Reduction School, even when the charge has nothing to do with the defendant driving.

It is extremely important that an attorney be familiar with the venue in which a criminal case, or even a civil case, is pending. There can be a huge discrepancy between how one county deals with a particular charge and how another county would address the same matter. In some circumstances, this disparity in how things are handled can vary from one judge’s courtroom to another. The knowledge of how to respond and react in these circumstances is something that comes with experience, knowledge of the jurors in a specific county, awareness of the local customs and practices of the court, and connections with others who are most familiar with the venue.

If you or someone close to you has been charged with a marijuana offense, or any criminal offense, call the DeWoskin Law Firm for a consultation. We have the experience and expertise to provide sound legal guidance as to the best manner of defending the case. If the charges do come out of a venue with which we are not familiar, we know how to get you to the person most knowledgeable, reliable, and capable of handling the matter.

UPDATE: I am pleased to announce that Cobb County and Dekalb County, my backyard, are two jurisdictions in Georgia among others that have made similar announcements with respect to the prosecution of misdemeanor marijuana cases. This is a developing issue in the law and one that is likely to call for many more updates. For the time being, we would expect them to be developments suggesting a halt to such prosecutions, but tests that satisfy evidentiary standards do exist, and thus vigilance is required for anyone charged with these offenses.

Should I settle my debt with Bank of America or American Express?

Thu, 01 Aug 2019 15:19:00 GMT

Bank of America and American Express are first party debt collectors, meaning that if and when they file suit against you, they are the original lenders seeking to collect their own debts. Thus, these are often tougher cases to beat in court. However, before agreeing to settle or pay even a first party debt, there is information you should have or verify.

First, you should always be cautious when speaking to any debt collector on the phone. They will usually require extremely private information from you to verify who you are, or looking for information they may not have, such as your address or place of employment. Meanwhile, you will never get simple information from them, such as the representatives first and last name, employee identification number, direct number, etc. When you are at this kind of a disadvantage, it is better to tell them absolutely nothing and insist that any and all communication be in writing. If they then ask you to confirm your mailing address, you should always refuse. The true and valid debt collector should have it. DO NOT be persuaded to bypass this rule. Debt collectors are trained in how to play off your concerns about what could happen or make you think they are there to help. They are there to collect money. They are not on the lookout for your best interests.

Second, you should ensure that you have true and correct copies of the documents supporting their claims against you before ever agreeing to what is owed or how you will pay them. If you went to a restaurant, you would not just look at the total of the bill at the end of a meal. You would look to ensure that so much as an extra iced tea wasn’t added to your bill if it was not ordered and received. Well, this is the same thing. You may not need to read over every charge of every bill as you may do monthly when you receive credit card statements, but you should know what is being charged, claimed, and what it is related to before you decide whether or not to pay it.

Third, make sure that any resolution you agree to is in writing, and that it fully resolves the debt such that it won’t be resold to someone else or that they can pursue you for the remaining balance. What you want to prevent is a judgment being entered against you, or perhaps even the chance that you will be sued again. In Georgia, a case may be dismissed with or without prejudice. “Without prejudice” means that the case can be refiled at a later time even though it is the same case or controversy. So, before signing or agreeing to anything, know that “the lawyer told me this” or “Sandy at Bank of America told me that” will not be the beginning of a successful argument defending against a debt at a later time.

Finally, it is best to have the input and guidance of an experienced attorney when trying to make sure that you are doing what is best for you under the circumstances. Sometimes, that may mean speaking to a couple of attorneys. For instance, my firm does not practice bankruptcy, but we can identify when it is best for some potential clients to forego hiring us to instead retain the services of a qualified bankruptcy attorney. Also, you should be certain your attorney is competent. A simple Google search can give you insight into an attorney’s reputation for ethics and professionalism, whether or not the attorney has been sanctioned or disbarred in the past, or whether or not the attorney holds himself or herself out in a professional light. Paying attention to these things can prevent further headache and harm. Nobody ever wants to spend good money after bad. If you have any questions regarding these types of debts, please call us at the DeWoskin Law Firm, (404) 987-0026.

See also Blog Post dated 05/23/2018 and 06/08/2018

Waiting to call an attorney after an injury can mean evidence is lost or destroyed

Mon, 22 Jul 2019 19:43:00 GMT

F.A. was a client of ours who was taking her car to be serviced at a luxury car dealership in North Atlanta. While she waited, she began to walk through the showroom and stopped before a glass shelf with lots of coffee mugs, hats, pens, and other branded things that the dealership was selling. She set her purse down and reached for a mug on the glass shelf. When she placed it back on the shelf, the rest of the items on the shelf started rolling forward onto her. She quickly tried to catch these items and level out the shelf, but it was already tumbling toward the ground.

The shelf crashed down onto her foot, landing so hard that the glass cut into the bones of her foot. Our client was rather shocked as several employees of the dealership came to check on her. Many of these employees came with towels, mops, and other things to try to clean up the blood and glass that was now all over the floor. F.A., who was 75 years old, was taken to the hospital by ambulance and treated for her painful injuries. Due to some other unrelated health conditions, including peripheral arterial disease, the treatment for her injuries took longer than it might have with a younger or healthier person. She had to undergo surgical procedures and angioplasty to assist with proper circulation and prevent the need for amputation of her leg.

When F.A. hired us, we immediately sent spoliation notices to preserve all the necessary documentation and determine who the witnesses were, secure any video footage of the incident, and ensure that we would have what we needed to prove liability when the time was right. Fortunately, thanks to several prompt phone calls and letters, we were able to actually view the video footage. Although the insurance company argued that F.A. caused the shelf to collapse onto her (which was not the case) we pressed forward showing that this shelf was precarious before F.A. ever approached it, and that these items were clearly on display with the expectation that customers would pick them up and then purchase them.

The case ultimately settled for $200,000.00. What this case really demonstrates is the importance of hiring counsel early. Had our client waited even a week before reaching out to us, we could have had real issues ensuring the availability of that video. With proper notifications in place, if the video were to disappear, through standard practices of recording over videos or any other reason, we would be able to hold the dealership accountable and there could be sanctions that would protect the client.

If you have questions soon after being injured, do not wait to reach out to knowledgeable counsel. It can be the difference between complete success and complete failure to recover damages after being injured.

Is it possible to be removed from the Sex Offender Registry?

Wed, 10 Jul 2019 20:39:00 GMT

Being a registered sex offender negatively impacts your life in a variety of ways. It affects where you live, where you work, and whether or not you can even get a job. It can have a negative impact on your social life if your neighbors learn that you are a registered sex offender. It can also negatively impact your relationship with family members.

If you are a registered sex offender, your life can be vastly improved by being removed from the registry. If you have completed all of your jail time, parole, and probation for the charge or charges that required you to register, you may be eligible to be permanently removed from the sex offender registry. Call the experienced lawyers at the DeWoskin Law Firm for a free consultation to see if you are eligible to be removed from the registry.

IS THERE A DEADLINE FOR FILING A PERSONAL INJURY LAWSUIT?

Tue, 02 Jul 2019 20:06:00 GMT

Many personal injury claims settle out of court without the necessity of filing a lawsuit. If the case is not settled out of court, the injured party has the option of filing a lawsuit in an effort to be fairly compensated through the legal system.

However, there is a time limitation for filing a personal injury lawsuit. That time limitation is called the statute of limitations. In Georgia, the statute of limitations to file a personal injury lawsuit, generally speaking, is two years from the date that the right of the action accrues. (O.C.G.A. 9-3-33)

For example, a personal injury suit based on a car wreck must be filed within two years from the date of the wreck. If you do not file suit within the statute of limitations, your case will be dismissed, barring extreme circumstances.

There are exceptions to the above rule. For example, under the same statute, a person has just one year to bring an action for injuries to reputation. Also, there are rules that pertain to the timeliness of serving the lawsuit on a defendant that relate back to the statute of limitations. There are other rules as well that can affect the viability of your lawsuit.

To best protect your ability to be properly compensated and to ensure that you do not miss the statute of limitations, you should consult with a trusted attorney about the specific facts of your case. Call the experienced trial attorneys at the DeWoskin Law Firm at 404-987-0026.

THE REAL REASON THAT NO GOOD AND DECENT ATTORNEY WILL EVER CALL YOU FIRST AFTER A CAR WRECK

Tue, 18 Jun 2019 19:21:00 GMT

Many law firms in Georgia illegally and unethically employ individuals to pull police reports after an accident, then call the people listed on the reports and offer the legal services of their employers. These individuals are called “runners,” and they are the definition of ambulance chasers. In fact, they are more than happy to come to a hospital bedside, invited or otherwise, at any given point in the day.

Not surprisingly, the State Bar of Georgia looks upon these predatory, sleazy tactics unfavorably. Unfortunately, the State Bar does not have a history of addressing these matters aggressively and holding the law firms that employ such runners accountable. And so, after a car wreck, it is not just possible, but likely that you will receive a call from someone who calls himself or herself an “investigator,” or who misrepresents that they work with this or that insurance company.

It is a disappointing truth that, at a time when all you should be focused on is getting better and treating injuries, you must also be vigilant not to be fooled by someone who works for a law firm pretending to be someone they are not so they can sign you up as a client. NO GOOD AND DECENT ATTORNEY WILL EVER, EVER CALL YOU, OR HAVE SOMEONE CALL YOU , WITHOUT YOU REACHING OUT TO HIM OR HER FIRST. This is a cornerstone of an ethical law practice. Sure, lawyers may advertise services on television. They may put billboards on the highway or on the sides of buses, but they should never call you or have someone call you and say, “I hear you were in a wreck and we can help.” This is the tactic of a law office desperate to sign up anyone naïve enough to fall for this sort of thing. They work on case volume, which means they simply do not have the time nor the resources to provide you with competent legal representation.

If you or someone close to you has been in a car accident, even if it is not a serious car accident, do not talk to someone when they call you and tell you they heard you were in a wreck. If they claim to be calling from the insurance company, ask them what the policy number is and get a number to return their call. The chances of them actually being from State Farm, Allstate, Progressive, etc. will improve if they can give you a number that does not ring back to a cellular telephone. In fact, it would be a good idea to Google the company to ensure the number you were given is legitimate.

Be careful and don’t be scammed by these folks who will tell you whatever it takes to sign you up. You should only ever enter into an agreement for legal representation when you are sitting and talking to an actual lawyer.

MEDICAL ADVICE WHEN INVOLVED IN A PERSONAL INJURY CASE

Thu, 30 May 2019 21:05:00 GMT

After being involved in a motor vehicle collision, people will often ask me for advice regarding treatment. I am not a medical doctor, so I cannot give medical advice, but I have a large network of trusted medical professionals to which I can refer my clients, although which medical professional they choose to see is entirely their decision. Above all else, it is imperative that my clients follow the advice of the medical professionals they see.

Neglecting or delaying medical treatment, or failing to comply with the advice of medical professionals after being involved in an auto collision can negatively impact my client’s case. It is important to seek medical treatment as soon as possible, if not immediately, after being involved in a motor vehicle collision for several reasons.

First, if you sustain cuts, scrapes, or bruises after a wreck, those are readily visible injuries that would probably require immediate medical attention. However, you would not necessarily know if you have sustained any internal injuries because they are not as apparent as external injuries. These types of injuries could potentially be harmful, and it is for this reason medical advice should be sought after an accident.

Additionally, failing to follow the advice of medical professionals when involved in a motor vehicle collision can negatively impact your ability to recover in your case because in Georgia you have a duty to mitigate your damages – including your injuries. Essentially, this means you have a legal duty to try to get healthy. Not doing so can be held against you in your case. For example, if you are involved in a motor vehicle collision and you see an emergency room doctor immediately afterwards, or any other medical professional, and it is recommended that you follow a specific schedule for physical therapy, but you do not follow the doctor’s advice, the insurance company or opposing party’s attorney will have a strong argument that the injuries you sustained in the collision were not severe because you did not follow the treatment suggested by the doctor.

Similarly, the insurance company or opposing counsel will likely argue that you must not have been severely injured by the collision if you waited days or weeks after the collision to seek medical treatment, or if you are inconsistent with treatment. These gaps in time between treatment are called “gaps in treatment.” An example of a “gap in treatment” would be if your doctor advised you to attend physical therapy twice a week for eight weeks and you went for two weeks, then skipped two weeks, and then continued your physical therapy thereafter. Gaps in treatment can negatively impact your ability to recover in a personal injury case because the insurance company or opposing party will argue that your injuries must not be severe if you skipped treatments.

How does the amount of damage to my vehicle affect my recovery in a personal injury case?

Tue, 07 May 2019 16:08:00 GMT

According to the Governor’s Office of Highway Safety in Georgia, there are more than 300,000 motor vehicle collisions in the state every year. Many of these collisions result in property damage and bodily injury to one or more people involved in the collision.

If the collision results in property damage to your vehicle, under Georgia law the at-fault driver (i.e. the driver who caused the wreck) is responsible for paying for the damage he or she caused to your vehicle. If your vehicle is damaged but not totaled, the at-fault driver must pay for your cost of repairs. If your vehicle is totaled, the at-fault driver must pay whatever the value of your vehicle was at the time the wreck took place; that is, what your vehicle could have been sold for prior to being involved in the collision.

Your vehicle’s damage is also evidence that can be used to assist in proving (or, unfortunately, disproving) any bodily injuries you are claiming resulted from the wreck. As the saying goes, a picture is worth a thousand words. You can tell people that you were involved in a violent collision, but those words mean different things to different people. However, a single photo of a vehicle that is crushed like an accordion tells people more than any amount of story-telling could.

If you are involved in a collision, whether it is your fault or not, you should always take photos of the property damage to your vehicle and to any other property that was damaged (e.g. the other vehicle, roadside property that might have been hit, etc.). These photos can be invaluable evidence in your case.

If you or someone you know has been involved in a motor vehicle collision, reach out to the DeWoskin Law Firm. Let us guide you through the process and maximize your recovery. Call us at 404-987-0026.

Why You Must Have a Lawyer if You Are Charged with DUI

Tue, 30 Apr 2019 21:00:00 GMT

You’re in your car with your significant other, leaving the new trendy restaurant in Midtown, Atlanta at which you both had dinner and enjoyed a couple of glasses of wine. You forget to flip on your turn signal while turning right onto North Avenue to head home. Suddenly you hear sirens and see blue lights. You pull over for the officer, gather your license and registration, and as the officer approaches the vehicle, you hear the dreaded question: “How much have you had to drink tonight?”

You agree to perform the tests the officer asks because you think, “Hey, I only had a couple of glasses of wine, right? Surely, the officer will realize I am not drunk.”

After being compliant with the officer and performing all the tests, the officer places you in handcuffs, reads out loud to you the contents of an orange card, asks if you will take a breath test, and takes you to jail.

Many Georgians have found themselves in the exact situation described above, and it can be one of the most frightening and confusing things to ever happen to a person in their life. People hire attorneys to shepherd them through the rest of this unfortunate ordeal. Others get out of jail after being arrested for DUI and think: “DUI is just a misdemeanor traffic charge. I have never been in trouble before. I am sure I can handle this on my own and save attorney’s fees.”

This article examines several reasons why you should always retain an experienced DUI attorney as soon as possible after being charged with DUI.

First, you should hire an experienced DUI attorney because there are certain time-sensitive components related to being charged with DUI that will affect your case significantly. In addition to having criminal charges brought against you by the State of Georgia, the arresting officer will often file what is commonly referred to as an “ALS” which is short for “Administrative License Suspension.”

By filing an ALS, the officer is asking the Georgia Office of State Administrative Hearings and the Georgia Department of Driver Services to suspend your driving privileges for allegedly driving under the influence. If an officer files an ALS in your case, you have a very short time frame within which to respond. If you do not respond within the requisite time frame, your license will be automatically suspended for one year without you having ever been convicted of any crime at all. This is because the license suspension is a civil matter that is separate from the criminal DUI matter.

To avoid your license being administratively suspended after being charged with DUI, it is important to hire an experienced attorney right away that knows the law regarding ALS hearings and can assist you in maintaining your privilege to drive.

Because the law in Georgia regarding DUI constantly changes and evolves, it is important to hire an attorney who is up to date on these changes in the law. For example, the Georgia Supreme Court recently handed down a decision which holds that in a DUI case the prosecution can no longer present evidence that a Defendant refused to give the officer a sample of his or her breath. This decision by the Court is huge for Defendants in DUI cases because the prosecution is no longer allowed to argue to a jury that the reason a defendant refused to provide a breath sample is because the defendant was drinking. The lawyers at the DeWoskin Law Firm have filed motions based on this recent Supreme Court decision, and other favorable decisions, in pending DUI cases where our clients refused to provide breath samples.

Another reason you should always hire an experienced DUI attorney is that there is an absolute wealth of information that can be used pertaining to the tests an officer will ask a person suspected of driving under the influence to perform. It is imperative that your attorney know all of this information. The National Highway Traffic Safety Administration (NHTSA) requires that officers give very specific instructions to DUI suspects before having them perform these tests, otherwise the results of the tests can be unreliable. It is also critical that the investigating officer ask certain medical qualifying questions to a DUI suspect to ensure that the results of the tests are accurate. It is essential that the officer conducting these tests perform them correctly, or else the results of the tests can be skewed, and the DUI suspect can be wrongfully convicted of DUI.

Last but not least, you should hire an experienced DUI attorney because a conviction for DUI in the state of Georgia is almost always permanent. If you are pleading guilty to DUI in the State of Georgia, you cannot utilize Georgia’s First Offender Act. A DUI cannot be expunged from your record in the state of Georgia. The best way to avoid a conviction for DUI ending up on your record is to immediately hire an experienced attorney who knows how to get the charges dismissed or reduced, or who may be able to convince a jury to return a verdict of “not guilty.”

Call the experienced trial attorneys at the DeWoskin Law Firm if you or someone you know is charged with DUI.

What are Punitive Damages?

Mon, 25 Mar 2019 17:48:00 GMT

In Georgia, the law allows for punitive damages to be awarded by a jury “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. §51-12-5.1. These damages are not awarded as further compensation to a person who has been injured, but instead are awarded as punishment and designed to penalize and deter the defendant from acting in the same manner in the future.

These damages often come into play in cases where a DUI driver has injured somebody in a car wreck. If there is so much as $1 in compensatory damages, the jury will get to determine if punitive damages should apply. Juries are far less likely to award such damages on a first time DUI driver, but in the event that the driver has had many DUIs, or even many incidents that have and could prove dangerous to others that involve alcohol or drugs, the chances of getting punitive damages grow considerably.

Even when punitive damages may be applicable in a case, juries are often skeptical and reluctant to award amounts of money that will enrich the plaintiff. For instance, juries will often ask at the punitive damages phase if they can designate that the damages will go to Mothers Against Drunk Driving (MADD) or another non-profit. They will ask the courts if they can order the defendant to enroll in rehabilitation. The juries will get creative and try to resist awarding money that just goes to the plaintiff, but not as compensatory damages. Again, they have already considered those damages and rendered their verdict there. This is about exemplary damages, and the statute even references that.

Punitive damages can be a tricky issue. The jury will consider many factors in determining how much, if any, to award for punitive damages. The jury must consider the degree of reprehensibility of the defendant’s actions that give rise to such damages, including considerations as to whether the harm caused was physical or just economic, whether the conduct demonstrated an indifference to the safety and health of other people, and whether or not it was a one time offense or just one of many occurrences. The jury also must consider the means of the defendant in assessing these damages. The higher the price a defendant has paid in the criminal justice setting for the same conduct may very well reduce the level of accountability that the jury is willing to impose in a civil setting.

It is not enough that a defendant was merely negligent for punitive damages to be awarded. The exposure for punitive damages is strictly limited to those situations where the defendant needs to be punished and have his or her behavior corrected. This makes perfect sense when, in the case of ordinary negligence, the likes of which result in so many car wrecks and injuries related to those wrecks, the jury is not considering punishment, but only putting the injured plaintiff in the same position that he or she was in before the car wreck. This is the idea of being “made whole.” Unfortunately, in countless situations, lives are lost to negligence or injuries are beyond being fixed 100% such that a jury must find the fair amount of monetary compensation to try to make the plaintiff whole.

Knowing when punitive damages should be considered and how to go about seeking them is a complicated decision and process. However, with proper experience and application, these damages can greatly enhance the chances of getting a just recovery from a fair and impartial jury. These damages should not be taken lightly and should only be pleaded for in the appropriate circumstances.

How do my doctor’s orders affect my personal injury case?

Mon, 04 Mar 2019 22:41:00 GMT

If you have been injured due to someone else’s negligence – whether it was a car wreck, a slip and fall, or some other unfortunate incident – getting the medical treatment you need is of the utmost importance. You may need to be treated by a doctor, chiropractor, physical therapist, and any number of other specialists. As you are treated by these medical providers, they will advise you regarding what steps you should take for your health to improve. That advice could include the types of medications you should take, what follow-up treatments you should pursue, what exercises you should do on your own, and many other instructions.

It is, of course, important for your health and recovery that you follow the doctor’s orders. But it is also critical to your personal injury case that you follow the doctor’s instructions. If you fail to show up for an appointment or otherwise fail to follow your doctor’s instructions, you are giving the opposing party in your case ammunition to undermine your case. The opposing party will argue that you would have less pain and suffering *if* you had followed doctor’s orders. You would have healed faster *if* you had followed doctor’s orders.

There is logic to those arguments – and other similar ones – even if they don’t necessarily speak the truth in your specific case. If you follow your doctor’s orders perfectly, your opponent cannot make that argument and your case is that much tighter. So, for your health, recovery, and for the sake of your personal injury case, be sure to follow doctor’s orders.

If you or someone you know is injured due to another person’s negligence, call the DeWoskin Law Firm at 404-987-0026.

What Can I Recover If I am in a Car Wreck and It is Not My Fault?

Mon, 25 Feb 2019 14:19:00 GMT

Most people know if they are involved an automobile collision caused by another driver and suffer some kind of loss as a result, they can sue the person who caused the collision. However, when I talk to people day to day, I find that many people are actually surprised to learn what they can recover. Under Georgia law, there are three kinds of “damages” you can recover for if you are involved in an automobile collision caused by another person which are called “special damages,” “general damages,” and “punitive damages.”

Special Damages, in the context of an automobile collision case, are monetary losses that are easily quantifiable. Special damages can include, but are not limited to, the cost of repairs for your vehicle (or the total value of your vehicle if it was a total loss), your medical bills, and any wages you lost as a result of the wreck.

General Damages are non-economic damages, or what you most commonly hear referred to as “pain and suffering.” A plaintiff in an automobile collision case can recover money for things such as the pain of broken bones, lacerations, bruising, and burns that are a direct result of the wreck. A plaintiff can also recover for future pain and suffering if there is proof that the injuries he or she sustained in the wreck will cause pain and discomfort in the future. Emotional stress, anxiety, depression, and loss of consortium that was a direct result of the automobile collision are also considered damages. Under Georgia law, there is no limit on the amount a jury can award a plaintiff for pain and suffering.

In certain cases, a plaintiff may be able to recover punitive damages as well. Punitive damages are money awarded to a plaintiff to punish the bad actions of a defendant, and to deter such future misconduct. One of the most common types of car accident cases in which punitive damages are awarded is when a drunk driver causes the collision.

Get sound, reliable advice and fully understand all of your options before trying to speak with insurance companies, bill collectors, and others. If you or someone you know has been involved in a car wreck, do not wait to reach out for help. Get medical attention immediately and call an experienced attorney at the DeWoskin Law Firm.

“Is This a Scam?:” How to Respond to That Unknown Debt Collection Caller

Tue, 29 Jan 2019 15:02:00 GMT

We often get calls from folks who have been contacted by phone about “their account,” or perhaps “the balance that they owe,” or attempts to deliver a certified document or summons that implies that if no return call is made in 48 hours, they will be in legal trouble. These calls may be for something that is completely bogus, an account they never had, a service they never applied for, an amount that was due, but is not collectible since 25 years have passed, or a host of other things that should cause them to be very suspicious. It could even be that family members are being called seeking information about your “so called” account.

The first and best step toward protecting against being scammed is to approach every single one of these phone calls as if it is a scam. For instance, this kind of jaded perspective can be very helpful. I am not suggesting that people immediately hang up on such callers (although I am not against such actions, either). What I am suggesting is that people who get these calls insist upon getting the first and last name of the caller, the company from which the person is calling, a good callback number, an account number, and an address. There is virtually no chance the caller will provide all this information.

Instead, expect the caller to deflect these questions and say something like, “Well, I need to get the last four of your social security number so I know I am talking to the right person.” When you hear this, tell them to only communicate in writing and hang up. I mean that. Hang up after that. Do not give them your address. If they say they need to confirm your address, or confirm anything at all , hang up the phone.

We hear routinely about how the caller already had so much information. This is precisely the problem. The caller has the person on the other end of the phone at a complete disadvantage. Essentially, a stranger has called, has some information on some alleged delinquent account, and is demanding more information from the person they are contacting. This is crazy. DO NOT give out information over the phone. Insist on written communications. This way, any information or account numbers can be verified.

Very little good comes from speaking with debt collectors on the phone. They record calls, which may include admissions to things at a time when the information available to the person calls is unavailable or perhaps even unobtainable. If it isn’t in writing, it did not happen and it is not worth discussing. This is generally a good rule of thumb when dealing with debt collection calls.

Surprisingly, we get collection calls on behalf of our clients that often begin with the caller demanding we confirm the last four digits of our client’s social security number. Bear in mind, these are not calls from lawyers on the other side, but debt collectors. Thus, we usually respond with, “Hey, buddy, you’re the one calling me.” We do not spend much time with these calls.

Many of these calls are, in fact, scams. These collectors often prey on the elderly and they are well aware that there are very, very limited resources for the government, state or federal, to take any action against them. Far too many people will grant them access to their bank information, including account numbers, along with other personal information, to address a claim for a delinquent account. I use the term claim because nobody is comfortable with the idea of owing someone else money. Just the allegation makes many people feel either ashamed or guilty, even if just long enough to stay on the phone, when they should have hung up from the first minute.

Remember, there is no law that says you must speak to a debt collector. There is no law against refusing to tell them your name or confirming your name. The best practice is to demand that they send you whatever they want to say in writing. Then hang up. If they don’t have your address, that’s a problem, but only for the caller.

What should I do immediately after a wreck?

Thu, 24 Jan 2019 21:23:00 GMT

You were driving down the road. Or perhaps you were sitting still in traffic. And suddenly, through no fault of your own, another vehicle barrels into yours. What should you do in the immediate aftermath?

The first obvious piece of advice is that you should do whatever is best for your health, whether that is to stay still, seek help, or go to a hospital.

That said, there are a number of steps you can take immediately following a collision that could preserve or strengthen your legal claim against the driver who hit you. If you cannot do these things yourself due to injury, ask a family member or friend to do them for you, if possible.

Following these simple steps can go a long way toward helping you receive the financial compensation you deserve for a wreck that wasn’t your fault. If you or someone you know has been injured in an automobile collision, call the DeWoskin Law Firm at 404-987-0026.

To Nolo, or Not to Nolo?

Wed, 16 Jan 2019 15:46:00 GMT

Some of you might have heard the expression “pleading nolo” in the context of a traffic or criminal case. Some of you might have never hear of such an expression. In the legal context, “nolo” is short for “nolo contendere” which is Latin for “no contest”. Simply put, it means someone charged with a crime or traffic offense is telling the Court that that person is NOT admitting guilt but will accept the punishment as if that person was in fact guilty.

Why plead “Nolo?” Pleading “nolo” can be helpful in several situations. In Georgia, being found guilty of any number of traffic offenses can put “points” on your license. Different traffic offenses carry different amounts of “points”, depending on the severity of the offense. Depending on the age of the driver, a certain amount of “points” on a Georgia driver’s license within a certain period of time will result in that individuals’ driver’s license being suspended. Additionally, any traffic offense that adds “points” to your license can be discovered by your car insurance company, which can result in your insurance rates increasing. However, by pleading “nolo” to these offenses, you will avoid points being assessed to your license, thus preventing insurance rates from increasing in most circumstances.

Being found guilty of certain offenses can also result in your license being suspended. For example, if someone is charged with driving on a suspended license, a guilty plea to that charge will often result in a further suspension of that individual’s license. By pleading “nolo” a person charged with driving on a suspended license can avoid further suspension.

When should I plead “Nolo?” The answer to the question “when should I plead nolo?” depends on a variety of factors and you should discuss that with an experienced attorney. Under Georgia law, one can only use a nolo plea once every five years. Also, a nolo plea is discretionary, meaning that a judge does not have to accept the nolo plea. Finally, your lawyer may be able to get your charges dismissed, or amended to a different charge that would not require you to spend your nolo plea.

What should I do when a loved one is killed in an automobile collision?

Wed, 02 Jan 2019 20:43:00 GMT

Some of the most difficult conversations we have with clients occur very soon after a horrible event has taken place. There are no words that can be said after the loss of a loved one that can replace what has been taken away. The void is often everlasting, even though time does help to heal some of the pain.

For us, the difficulty is in having these tough conversations at very sensitive times. We have an obligation to our clients to preserve evidence and ensure that the loss of a loved one in a car wreck is not made worse by a compromised investigation. In order for us to get a full understanding of what has been taken, it is vital for us to meet with the family and learn as much about everyone involved early on. From there, we continue to listen and learn so that when the time comes and we have all the information we need, we can advocate for the full measure of compensation for our clients.

When these clients come to us, their worlds have been turned upside down. In the very midst of their grieving, they are often not only making funeral arrangements, but scrambling to figure out how they will pay bills, continue to maintain a household for the kids and return to work, and respond to letters from insurance companies and others that fill their mailboxes.

Our job is relieve as much of this burden as we can. We access several different resources to provide knowledgeable counseling for our clients. We reach out to insurance companies and advise them that our clients are represented and work to coordinate all points of contact so that the letters and paperwork do not pile up and overwhelm grieving families. Although calling a lawyer immediately after losing a husband, wife, or partner can feel like it does not properly honor the loss, it helps to allow a period of quiet mourning while having the peace of mind that someone is, in fact, making sure that everything that needs to be done is getting done.

If you or someone you know has lost a loved one in a car wreck, do not wait to reach out for help. It is always best to have a clear mind and know all of your options before trying to speak with insurance companies, bill collectors, and others in the midst of a crisis. Having an experienced attorney can make dealing with a loss easier in the most difficult of times.

How can I get rid of my Georgia criminal record?

Wed, 28 Nov 2018 13:29:00 GMT

It’s easy to get a criminal record in Georgia. Unfortunately, it is far easier than most of us would like to think. Many people are charged with a variety of offenses, from minor misdemeanors to serious felonies, and, due to decisions to delay hiring qualified counsel or perhaps even due to poor representation, they make choices to enter pleas that have lasting and often permanent consequences.

Although none of us would like to think that any innocent person would ever enter a guilty plea, this happens extremely frequently. It may be because the cost of fighting a charge is too expensive in either money or time, or perhaps because the risk of what could happen in a loss at trial is too great. However, in Georgia, with few exceptions under the law, a conviction is permanent. This means that potential employers and other interested parties can easily access this information in a background check and cause problems long after the incident has been “resolved” as far as the courts are concerned.

It is far more difficult to get rid of a criminal record than it is to get one in the first place. Georgia law has provisions for record restriction, which at one time was referred to as expungement. Many people still believe that expungement is the correct term, but as of July 1, 2013, record restriction is not only the more legally accurate term, but the more factually accurate term. Criminal records are never completely destroyed or made to disappear. Instead, they are restricted as to who can access them and how.

When a record is properly restricted, criminal history printouts, commonly known as a GCIC report, will not display an arrest and certain negative entries can only be viewed by law enforcement. Thus, a background check for a job would not reveal the charge or arrest. Once again, the fact that a conviction took place 5 years ago, 10 years ago, or 40 years ago does not mean that the record can be restricted. We are often contacted by people who cannot recall the details of the charge or disposition due to the amount of time that has passed since the case was closed, and thus the first step in every situation with respect to record restriction is for the client to actually get a copy of his or her criminal history (GCIC). From there, we can pull records from the court as needed and provide all the necessary information to determine if a record can be restricted.

It is only natural for people to want to put what can be an embarrassing or difficult situation behind them quickly. For this reason, people will enter pleas in court to shoplifting charges, domestic violence charges, DUIs, or a host of other offenses without fully taking into consideration all of the ramifications of such a decision. Even when the rights they are waiving are expressed to them in court, in the absence of a discussion with a qualified attorney, the pressure on people can make it difficult for them to feel comfortable enough asking questions. Of course, the courts cannot give legal advice of any sort even if a defendant asks questions during a plea. However, such questions can alert the court that more time may be necessary for the defendant to communicate and/or hire counsel.

When someone is charged with a criminal offense, even minor offenses, it is always best to immediately contact a lawyer, or several lawyers, so that he or she can be properly advised of what the process will look like, what decisions will have to be made and when, what rights he or she has throughout, and what defenses are available to him or her. Do not find yourself asking about record restriction or expungement only at the time of applying for your dream job. You owe it to yourself to prevent causing permanent damage whenever it can be avoided.

What is the legal limit in Georgia for a DUI?

Sun, 28 Oct 2018 20:26:00 GMT

What is the legal limit in Georgia for a DUI?

In Georgia, it is generally illegal for a person to operate or be in control of a motor vehicle when a person’s blood alcohol concentration (BAC) is 0.08 grams or more by weight of alcohol at any time within three hours after driving.

Notice above I wrote that the legal limit is generally 0.08. There are a couple exceptions. If you are under the age of 21, the legal limit is 0.02. If you are driving a commercial vehicle, the legal limit is 0.04. Any DUI in which you are above the legal limit is considered to be a charge of DUI Per Se. However, it is also important to note that you can be convicted of DUI even if your BAC is not above 0.08. This would be a charge of DUI Less Safe. If you are deemed to be a less safe driver while under the influence of alcohol, even if your BAC is below 0.08, a jury would be authorized to convict.

How high your BAC is at any given moment is very difficult to determine. It depends on how much and what type of alcohol you have consumed, your body mass, and a variety of other factors. The State typically attempts to measure a person’s BAC by testing blood, breath, or urine. However, even if your BAC is over the legal limit there are still ways to fight a DUI charge. Perhaps the reason the officer pulled you over was unlawful. Perhaps the machine used by the officer to measure your BAC was not calibrated properly.

These are just two of a myriad of issues that can potentially undermine the State’s DUI case against you. If you have been charged with DUI, I encourage you to hire an experienced DUI attorney as quickly as possible. Call the DeWoskin Law Firm at 404-987-0026.

What is the “eye test” officers do during a DUI traffic stop?

Mon, 01 Oct 2018 19:02:00 GMT

The HGN is an abbreviation for “Horizontal Gaze Nystagmus Test.” HGN is one of several tests, referred to as Standard Field Sobriety Tests (“SFSTs”) that officers perform on an individual that they believe is driving while impaired on alcohol or drugs.

Of the several SFSTs that some officers are trained to conduct, you may be surprised to learn that the HGN is the only “SFST” that is proven to have scientific backing – although there is also science that questions its accuracy as well. The National Highway Traffic Safety Administration indicates that the HGN is 88 percent accurate in determining if an individual has a blood alcohol content (“BAC”) over .08, the legal limit for non-commercial drivers in Georgia.

When an officer is performing an HGN test on a suspected impaired driver, the officer is looking for “nystagmus” in the driver’s eyes. Nystagmus is an involuntary jerking of the eyes, which can be indicative of consumption of and impairment from alcohol and/or certain drugs.

However, it is important to remember that certain medical conditions can also cause nystagmus even when someone has not consumed any alcohol, drugs, or prescription medications. This is why if you are pulled over by an office and asked by the officer to perform SFSTs, you should inform the officer of any and all medical conditions you might have, as certain medical conditions can cause a “false positive” while the officer is performing the test. It is also important to note that the certain illicit drugs and prescription medications may cause impairment, but not show nystagmus.

It is also worth noting that you do not have to perform the HGN or any of the SFSTs just because an officer asks you to do so. You can politely decline, and the officer will continue conducting his or her investigation as he or she sees fit.

It is also important to note that an officer must be properly trained in administering HGN tests. If the test is not performed properly, the results may lead to a false positive. If you have been charged with DUI, you should hire an attorney experienced in DUI law who knows how the HGN test is supposed to be administered and who can challenge the results of an HGN test performed by an untrained or underqualified police officer.

If you have been charged with DUI, call the attorneys at the DeWoskin Law Firm, and make sure you are protected by experienced, knowledgeable attorneys.

Three Steps to Addressing an American Express or Bank of America Credit Card Lawsuit

Fri, 08 Jun 2018 15:47:00 GMT

After the date of charge off, American Express and Bank of America will usually file suit if collection efforts have failed to resolve the matter. Once these companies file suit, there are three very important steps to protect yourself as a consumer from suffering far more significant damage.

FIRST: Immediately upon being served, consider hiring counsel. Although these cases may be filed in magistrate court, which is considered (by some) to be faster and more user friendly, the rules of evidence can be tricky to understand and apply. Even when the courtroom is full of knowledgeable counsel, it can be challenging to ensure that the judge is applying the proper standard. Judges are people, and these judges have many, many cases to sort through. The fact that magistrate courts are not courts of record, meaning there are no court reporters, can make it more difficult for a consumer to properly ensure that due process is taking place and that no shortcuts are being taken. There may be little or no opportunity to accurately review what took place after the case is heard by the judge.

If the matter is filed in State or Superior Court, the advantage that the creditor has in having experienced counsel is now even greater. These attorneys are professionals and know what they are doing. They can gear their discovery and tactics to use the procedures that a consumer does not know against the consumer. We often hear that the consumers were waiting for a court date or a trial date. In State or Superior Court, this day may never come, and yet the case can be lost all the same on paper filings with the Court. If someone chooses to represent himself or herself, which a person is entitled to do, he or she is expected to know all of the same procedural rules and rules of evidence as an attorney, which can be overwhelming.

SECOND: Regardless of whether or not you can hire counsel, you must ensure that you file an Answer with all your defenses within 30 days of being served with the Complaint (the lawsuit). Should 30 days pass without an Answer being filed, the matter is in default. This means that the consumer has already lost. Any defenses that existed would be waived by the consumer. Furthermore, even though damages could still be challenged, other opportunities for the consumer to best position himself or herself for a favorable outcome have also been compromised. There is a way to pay costs and re-open the default for 15 days past the 30-day window to answer, but the best practice will always be to file a timely answer responding to each and every claim in the Complaint.

THIRD: Finally, take a moment to consider what American Express or Bank of America needs to prove in order to win the case. Sure, by filing they are asserting that money is owed to them. I have never met a consumer who knew the exact amount that was owed on his or her credit card at any given moment. It can be viewed, perhaps, on a credit report. It can also be viewed by logging into the account online. In any case, to ascertain whether or not it is correct would require the consumer to review all the charges, the payments, the credits, and any other entries that may or may not be appropriate and accurate.

Do not ever take a debt collector’s word about anything. It is not that law firms such as Zwicker & Associates or Cooling & Winter, LLC are actively trying to deceive consumers, but it is always in the consumer’s best interest to verify that the information and amounts are correct. This can and should be done when it comes to litigation. This may require subpoenas, discovery, motions, and/or depositions.

When a consumer takes no action upon being served with or advised that lawsuits are pending, it is the same as agreeing with every single allegation in the lawsuit. Owing a debt is not the same as being charged with a crime, but the principles at work in defending against a criminal charge should be observed in many of the same ways. Like a criminal defendant, a consumer should know his or her rights. He or she should be aware of what is required and expected of the person or company suing him or her. A consumer should not allow fear or unfamiliarity with the system to give American Express or Bank of America the advantage that it has come to expect over the course of filing thousands and thousands of lawsuits.

Are American Express Lawsuits Able to Be Defended?

Wed, 23 May 2018 18:17:00 GMT

Yes. Without question, there are defenses to these lawsuits. Unlike many other debt collectors who file thousands and thousands of lawsuits across the country, American Express is a first party debt collector. They are not a debt buyer and often file suits to collect upon their own accounts that have become delinquent. Just like with debt buyers, they retain counsel, such as Zwicker & Associates, P.C., who prepares and files the lawsuits.

We represent many people who are sued by American Express, and can often find defenses to the suits when the amounts are incorrect or there are procedural errors that can result in improper judgments. The fact remains that just because American Express is a first party, due process still requires that the suits be properly adjudicated and that no shortcuts be taken to compromise the interest of the defendant-debtors.

In defending these matters, we will usually prepare answers, engage in discovery, and determine what amounts, if any, are actually owed. We consider the applicable statutes of limitation and review any available documentation. In the event that American Express can ultimately get a judgment and adversely impact our clients, we take action to negotiate settlements with opposing counsel to minimize any damage to our clients’ credit reports and prevent negative collection activity, such as garnishments or liens.

If you are sued by American Express, just as if you are sued by any other debt collector or party, it is important to reach out to counsel quickly so that any defenses can be preserved. Once served, you have only 30 days to file an Answer or there may be a default judgment. A default judgment is a judgment like any other, and should be avoided if at all possible.

U.S. Vows to Battle Abusive Debt Collectors – NYTimes.com

Wed, 10 Jul 2013 18:49:00 GMT

U.S. Vows to Battle Abusive Debt Collectors – NYTimes.com .

It’s about time for regulators to take more notice of these issues. Many debt collectors, and first party lenders, have engaged in fraudulent and abusive practices with little to no oversight or accountability. I am skeptical about what impact the Federal Trade Commission and other regulators will have in the short term, given just how much capital is at stake. There is so much money to be made by disregarding consumer rights, and that is only when consumers have such rights.

There is so much work to be done to address abusive practices that I can only read this article with the hope that it is good place to begin.

4 Questions that may begin and end every debt collection phone call

Mon, 18 Mar 2013 01:33:00 GMT

In the consumer work that I do, I repeatedly hear about abuses that people are subjected to by debt collectors without any respect for the rule of law and without any sense of common decency. I am frequently asked by clients, friends, colleagues, and others what are some of the ways that people can protect themselves against becoming victimized by these collectors.

I use the term victimized because of the clear distinction in power in such phone calls. Debt collectors will often be much more bold and aggressive on the telephone than they would ever be in person. The job that requires making these types of phone calls day in and day out is ideal for a person who suffers a certain kind of cowardice. These callers know who you are, or at least have access to a good deal of sensitive and private information. All the while, you know nothing about the callers. This is power for the debt collectors.

After cataloguing the many types of complaints and accounts I hear about the manner in which these collection abuses take place, I have come up with four questions that, if asked by the consumer immediately when the call begins, may very well shut down the entire situation before the consumer is intimidated, tricked, bullied, harassed, or otherwise lured into providing compromising information to the complete stranger on the other end of the phone. What I hope the information that I am providing here will do is prevent readers and consumers from giving such callers even more sensitive and private information than they already have.

First, the person who receives a call from a debt collector should ask the first and last name of the person calling. If the caller tells you that he is Mr. Thompson, or Ms. Russell, but refuses to give a first name, the consumer should hang up the phone or otherwise terminate the call. Be prepared for the caller to try to change the subject or “deflect,” as the longer they can keep you on the phone, the greater the chance they have of getting you to eventually give them more information that they can use to take more aggressive collection actions. Do not be afraid to hang up the phone if the person who knows your first and last name will not give you his or her first and last name.

Second, ask for the name of the company that the caller is calling from . When you ask this question, you may hear the person say they are calling “for” somebody or “on behalf of” some other company. This is not sufficient. If the caller works for ABC Collection Company, you should know the full name of the company. This is going to be helpful for you as the consumer to know and compare what information they say they are calling about with what accounts you may or may not have open, in collections, or listed on your credit report. Once more, if they refuse to answer the question, the call should be over. No more questions.

Third, ask for the number from which they are calling. These days, many of these collection companies have found savvy, and sometimes even illegal, ways to disguise their phone numbers. They do this so that people with caller ID may not recognize the number and will pick up the phone. As I have said, the longer they have your ear, the better their chance of getting paid. Most of these callers work on commission, so they are driven salespeople and may easily lose sight of the boundaries that federal and state laws place on them. If you cannot get the phone number, you cannot continue with the phone call.

Fourth, ask them for the full account number that they are calling about and who is the current owner of the debt. If you have gotten this far and have not had to hang up the phone yet, you will likely find the debt collector answering this question with some statement about how they would need to verify your social security number or identification before they can go into that. This is simply a clever ploy to get you to answer questions before they show you that they at least deserve your five minutes. If they try to deflect or avoid answering, hang up the phone!

I don’t wish to make this all sound so routine or scripted that you let your guard down. Many of these collectors are very experienced and have made a lot of money by making false promises, by falsely stating the amount of the debt or lying about how much they would settle the case for, or even by blatantly threatening that if a person does not pay for or account for the debt that he or she can be arrested. You cannot go to jail or be charged criminally for owing a debt (unless that debt is to the IRS and other factors are met).

My point is that the call will likely not follow any of the exact script that I have laid out above, but I would be shocked if a vigilant consumer is able to get through the four questions and still finds himself or herself on the phone with a debt collector. They are not customarily successful by demonstrating professional, kind, and understanding demeanors on the phone. They are instead trained on how to use assertive tones, guilt, shame, and a host of other tactics to exploit unsuspecting strangers on the other end of the line into making agreements that they may not be able to uphold. They are also quite capable of getting many, many folks to give them social security numbers and bank accounts. This is never a good idea. This is NEVER a good idea.

I feel compelled to say that a second time. Do not give out your social security number or banking information over the telephone. No good can ever come of this regardless of the threat that the debt collection caller may make. If you feel pressured to give this information, the caller is likely violating the law. It is as easy as that. Furthermore, if you’re not sure what to do, tell the caller you have to talk to your lawyer and that you will call them back with the number and name, first and last, that the person gave you at the beginning of the call. If the caller tells you that the deal or offer to settle is only good for that night, it is a lie, or not a “deal” at all.

As an attorney, I have one rule that transcends all the work that I do and has been an invaluable resource for me and my clients. If it is not in writing or recorded, it did not happen. If you find yourself talking to one of these debt collection callers, tell them to send you the settlement offer in writing. Tell them to provide all their information, the account they are calling about, the balance, the owner of the account to you in a letter in the mail. They may then try to “verify” your address, but I caution you to respond that you are certain they already have it. You can then wish the caller a goodnight and hang up.

In over a decade of practicing law, I have never heard a single positive experience of someone who resolved a debt through a telephone call. On the other hand, I have heard nightmare stories over and over again where people were tricked or bullied into giving total strangers access to their bank accounts. These people were not stupid, if that is what you were thinking. We all have moments of frailty when we are more subject to being taken advantage of, and when a debt collector calls, we have a stranger who knows something about us that makes us feel bad about ourselves, our financial situation, or our current circumstances. Once they have us feeling defeated, they act as though they are in a position to help. They are not in a position to help.

I do not want to have you as the reader thinking that every single debt collector is a criminal or violates the law when he or she does his or her job. Experience tells me that those people with strong ethics and respect for the law do not thrive as debt collection callers. They are not willing to cross lines that the law creates for them and they will ultimately make less money than those willing to do whatever it takes. Vigilance and knowledge are the best tools you have at your disposal to deal with the callers who do not care about boundaries. The four questions listed above should serve you well going forward.

Garnishments and Traverses

Thu, 20 Sep 2012 22:21:00 GMT

A garnishment is a collection action that takes place once a party to a lawsuit has a judgment against a defendant. This means that there was already a case and it was already lost. People cannot be garnished just because someone says they owe money. It is only after there is a judgment that a garnishment of their wages, accounts, or other property can take place. The garnishment action does not have to be filed in the county in which the original judgment occurred, only in the county where property of defendant is held.

So, what this means is that if a person wants to fight a garnishment, it is almost always an uphill battle. As a lawyer who represents consumers, I hate garnishments because my opponents usually feel what is often a well-deserved sense of confidence when walking into court. After all, they have already won the war and got the judgment. What is one more measly battle to try and get payment? And, they have clearly found a source of collection for my clients whether through a wage garnishment or from garnishing bank funds. Ugh.

When a garnishment is filed, the creditor is basically telling the employer, bank or whoever has property of yours that you have a claim to that property. At that time, you are not actually a party to the action and the garnishment action is between the creditor and the garnishee (party holding the funds of yours). To even become a party to the garnishment action, one must filed a traverse. Some courts in Georgia charge to file a traverse; usually the charge for a traverse is a very modest fee of around $20.00. When a traverse is filed, the court will set a hearing to determine whether or not there is a valid judgment and if certain procedural requirements were met such that nothing is improper or illegal about the garnishment itself.

Often, what you will hear at these traverse hearings are challenges raised by defendants that they were never properly served with a lawsuit or that they never owed the money in the first place. The trouble with these arguments is that they are being made before the wrong court. Once again, if you are saying that you never owed the money, the time to argue this and assert this defense was within 30 days of being served with the lawsuit. If that wasn’t done, the defenses were really waived, meaning you lose them. Thus, a party who never had a justified and legal claim can acquire one because you failed to stop them from getting a judgment. Think of it like this, nobody has a right to break into your house and steal your belongings. However, if you are sitting in the hallway and watching them steal your stuff and you decide not to call the police, or even to say that what they are taking doesn’t belong to them, you are asking for trouble.

There is merit to the argument that someone was never originally served with the lawsuit. After all, how can someone defend a lawsuit that they never knew was filed against him or her? He or she can’t. The problem here is that the court hearing the traverse is only concerned with the existence of the judgment. If it is not valid because the person was never served, the proper and preferable action would be to ask that the court stay the garnishment proceeding and immediately file a motion to vacate the judgment in the court that originally granted the judgment to the plaintiff.

This may mean filing a motion in a court in an entirely different jurisdiction. However, it is the only way to undo the jeopardy that the defendant in a garnishment is in with respect to losing his or her property. In the meantime, the garnishment court will generally be agreeable to staying the proceeding until the motion to vacate is heard by the other court. By “staying,” I mean that the property will remain held up in the court registry or otherwise not paid to the plaintiff until the motion to vacate and other issues are heard and decided. Sometimes, just the threat of this delay and the further work required of the collector can facilitate some sort of settlement.

As I have mentioned, I am not a fan of fighting garnishments primarily because I often feel like a turtle on its back. The best time for fighting has long past and a judgment was already entered. That being said, I do get in this arena and have had success, but they are hard fought and take a great deal of time and effort.

Can I go to jail for not paying a debt in Georgia?

Thu, 20 Sep 2012 16:24:00 GMT

Debtor’s Prisons and “Attachment Bonds”

In Georgia, you will not go to prison or be held criminally liable for owing money. This is true provided that the debt is not the result of some criminal scheme or owed as restitution for injuries or damages caused by a crime for which you are convicted. This means that if you owe money on a credit card or on some account or note that you borrowed on, you can be sued, but not jailed in the event you cannot pay.

In some states, such as Missouri, there are provisions apparently in the law that allow for creditors to sue you and, in the event you fail to answer or show up, actually take steps to have you taken into custody. See this article . This is outrageous and should offend the conscience of every American. In Georgia, if you fail to appear in court or answer a lawsuit, the party suing you gets a default judgment. They win the case, which is something extraordinary, but that is it. They can garnish or collect their judgment in any legal way, but they cannot have you locked up.

In Missouri, and in some other states, if you are sued and fail to respond, as opposed to just awarding the party suing you a judgment, the court will often entertain and sign an attachment bond or order. This order doesn’t attach the defendant’s property, but the defendant himself or herself. The sheriff then goes out and locks up the defendant, who may have not answered for very understandable reasons such as a failure to having been properly served or perhaps some legitimate and providential cause. The defendant is then locked up and held with some purge amount set for his or her bond. This “purge” amount is likely the amount the creditor plaintiff was suing for. Thus, debtors prisons, a concept that should be foreign to us as freedom-loving Americans should certainly not be permissible under the law, are able to vex and oppress a host of people whose “crime” or “offense” may have been to do little more than find themselves unemployed, broke, or homeless.

Debtors prisons are bad for everyone. They burden the taxpayers, law enforcement, and the courts by needlessly shifting the monetary and time expenses to the system when the creditors and third party debt buyers took the risk in the first place. They criminalize routine civil collection actions and further disadvantage a population that is already outgunned when it comes to defending themselves in court. After all, criminal defendants have constitutional rights that require the appointment of counsel when they cannot afford counsel. People being sued on debts and then subject to these attachment bonds do not have such access to counsel routinely. Volunteer lawyer foundations and legal aid offices are quite often not equipped and staffed to be able to take on these representations. These people are poor, but often not poor enough or have enough at stake to avail themselves of any “free” legal services.

So, the taxpayers then foot the bill for jailing these people for their failure to file an answer. The creditors may not see any problem with this system. To them, the jailing comes because the debtors failed to respond and come to court to talk about the debt. This is nonsense. Fortunately, in Georgia, our courts recognize that not answering a lawsuit has a serious consequence, a default. The other party wins by forfeit. It is not contempt to not answer a lawsuit.

This brings up an interesting point, however. In Georgia, in some jurisdictions, after a default judgment or any judgment, for that matter, the prevailing party may send out post judgment interrogatories or post judgment discovery. These are usually a series of questions designed to finding out where a debtor-defendant banks, works, or has property that might be subject to collection to satisfy the newly-acquired judgment. If a debtor-defendant fails to respond to these inquiries timely (within 30 days), the judgment holder then files a motion for contempt with the court.

In some jurisdictions, the courts will then hold a motion hearing on the contempt issue. If the debtor-defendant still fails to respond, a warrant may be issued by the court and the debtor-defendant may later find himself or herself subject to arrest for contempt of court. As I mentioned, this only happens in some jurisdictions. In others, the judges will see this as just another way to have a debtor-defendant locked up for owing money that they cannot afford to pay. Having a person held in contempt so that they can be cross-examined as to how much money he doesn’t have doesn’t really serve justice and just clogs the system with needless hassle and expense.

It is also foolish to have purge amounts on these contempt cases because even when a debtor-defendant’s family member steps up to make the bond to get his or her loved one out of jail, the debt is not being satisfied by the party responsible for it. This is a perversion of justice and abuse of process. It can and does happen in Georgia, but not on the same scale as what appears to be happening in Missouri according to the article cited above.

As always, if you are a debtor-defendant, the best rule of thumb is to be vigilant about your credit and the statuses of various debts. Promptly respond to any lawsuits with an answer, even if it is just a general denial. Study what your rights are in the particular jurisdiction in which you live in or are being sued in. When practical and possible, hire competent counsel. Many creditors will not hesitate to take unfair advantage of any means that are available to them. The best way to avoid being a victim is to be aware and knowledgeable. These debtors prisons are reprehensible, but with diligence and effort, you can avoid becoming an inmate just because you do not have the means to pay a debt (especially one you don’t legitimately owe!).

Debt Collection Default Judgments in Georgia

Wed, 19 Sep 2012 16:26:00 GMT

Default Judgments

A default judgment is what a plaintiff can get when a defendant is validly served with the lawsuit under the law, but fails to timely file an answer. An answer to the lawsuit must be filed within 30 days of service (there is one exception to this: when a lawsuit is filed and discovery is served upon the defendant, the defendant then has 45 days from the service of the lawsuit to file an answer. If you don’t know what this means, be safe and file an answer within the 30 day period from the date of service). The moment you are served with the lawsuit, the clock starts ticking. Filing an answer requires you to respond to the Plaintiff’s lawsuit in writing and file your response with the clerk of court in the county in which the lawsuit is filed. Even after the 30 days period has run, there is a period of 15 days after that in which you can still save yourself from a default judgment. A defendant who fails to answer the lawsuit can “open” default by filing an answer and paying costs of court no later than the 45th day after being served. After that, it will be up to the court to determine whether or not the defendant can fight the lawsuit at all.

Many debt collectors and debt buyers are extremely successful precisely because the people they sue fail to file any answer whatsoever. It may be because they don’t know what to do, don’t have the money to hire a lawyer or settle the case, or are perhaps just overwhelmed by the idea of what might happen if they go to court. By doing nothing, they ensure that the other side has the upper hand from that point on. It is of the utmost importance that the defendant file some answer to the lawsuit, even if it is just to say that “I do not owe the plaintiff any money.” This will be enough to preserve the issues for trial so that the defendant can take the time necessary to hire an attorney or, at the very least, educate himself or herself as to how to defend the case as best he or she can.

In the event of a default that goes beyond the 45 days mentioned above, there are only three reasons that the Court can permit the defendant to open default and get the case back to where it needs to be. These are providential cause, excusable neglect, and proper case. The Court has wide discretion to determine whether or not a default should be opened, but a defendant takes his chances from jurisdiction to jurisdiction and even from judge to judge. I have had cases in which both I and my opposing counsel agree that things would have turned out differently but for the judge who was hearing the case. The same could be said of almost any legal issue, but it seems quite obvious in this particular instance.

As a rule, the law does not favor default. The law, and presumably the Courts, are to prefer that all cases be litigated and decided on their legal and factual merits. The fact that one party has failed to adhere to the time restrictions and procedural requirements of the law do demand that some guidelines and repercussions exist for fairness. However, when practical and possible, the courts are supposed to err on the side of allowing parties to litigate on the merits. Unfortunately, this is a call that is made by a judge and can go either way.

The lesson here for the defendant who has been served with a lawsuit is always file a timely answer. Do not give this kind of leverage to your opponent. Fear and intimidation can cost you dearly. You must be vigilant and be your own best advocate.

I recently had a case in which my client was being sued by a third party debt buyer for $15,000 or so. My client had little money to hire an attorney and actually consulted with a bankruptcy attorney. Before she knew it, the thirty day mark was upon her and she did not file an answer. She kept telling herself she was saving to hire an attorney. Note that saving to hire an attorney is not one of the three justifiable reasons for opening a default that I spoke of earlier.

By the time my client did contact and hire me, I was filing a motion to open default, along with all her defenses and counterclaims, and it was 78 days past the 30 day point. The plaintiff debt buyer had not even moved for a default judgment, but the case was simply in default. We went to a hearing on the matter, at which time I argued that my client had many defenses that went to the merits of the case, that the plaintiff had suffered no prejudice by my client’s failure to timely answer, and that due to her inexperience with the case and financial difficulties, this was a “proper case” under the law.

The judge drilled me for 35 minutes as to my arguments. He believed that the plaintiff would suffer prejudice if he opened default because they would have to defend against my counterclaims. I countered that he could open the default only for the limited purposes of allowing the defenses at trial and not the counterclaims, but he shut me down instantaneously.

“Just what makes this a proper case, Mr. DeWoskin,” he asked. I gave him the best answer I could give. I pointed out that the default calendar he had just read consisted of about 80 or 90 cases. I showed him that there were about 12 defendants in the room who took the time to come to court to challenge the entry of defaults in their cases. My client was one of those 12. She had now incurred the cost of hiring qualified counsel, come to court in person, and stood there prepared to argue her case on the merits. The judge shrugged off my arguments rather easily, and moved on with his challenges to my position.

I was next pressed as to why 78 days past the deadline set by law was reasonable. I told him that there was very little guidance under the law and caselaw as to just how many days past the deadline are reasonable. “If it was only 5 days, Your Honor, there is nothing under the law to say that this would be reasonable. I suppose the best argument I can make is that it was not 110 days.” I elaborated by going back to my first position and showing that there was no prejudice, the plaintiff had not filed any motions for a default judgment, and that no such judgment had yet been entered. By this point, you can clearly see why I find arguing against default so frustrating as an attorney, especially when my clients have such strong defenses.

This case ended when the plaintiff asked to have the case continued so that we could discuss settlement. The case did ultimately settle, but not nearly on the terms that would most have favored my client had she just filed a simple answer denying the plaintiff’s claims.

Volunteer Attorneys Give Free Debt Collection Consumer Education Clinics in Decatur, Georgia

Sat, 11 Aug 2012 21:52:00 GMT

Recently covered in the Daily Report, “ Clinic helps public fight off debt collections “, the Consumer Education clinic on Debt Collection sponsored by the DeKalb Volunteer Lawyers Foundation has proven to be quite a success. Since March 2012, volunteer lawyers have held the debt collection clinic numerous times.

The next clinic is scheduled for Tuesday, October 23, 2012 from 5:30pm-7:00pm in the Ground Floor Meeting Rooms of the Decatur Library located at 215 Sycamore Street, Decatur, Georgia 30030.

The debt collection consumer education clinic began in March 2012 and the clinics are held approximately 2 times per month on Tuesday evenings at the Decatur Library. The clinic is free to the public and anyone interested is encouraged to attend. The clinic begins with a brief presentation by a local volunteer attorney who will discuss the basics of what to expect when facing a debt collection lawsuit. After the presentation, attendees who wish to do so are given the opportunity to meet individually with a volunteer lawyer to ask specific questions regarding their situation.

Why EVERY Georgia Driver Should Have a Copy of their Insurance Policy

Fri, 13 Jul 2012 02:54:00 GMT

It should come as no surprise that Georgia requires that motor vehicles be insured in the event of accident or injury. The minimum policy requirements for any policy issued in the State of Georgia demand that there is coverage for liability in the amount of at least “$25,000 for bodily injury or death to one person in any one accident” and “$50,000 because of bodily injury to or death of two or more persons in any one accident, and $25,000 because of injury to or destruction of property [1].” This falls under the mandatory provisions of the motor vehicle liability policy.

These are, of course, the miminums that are required by law. Each Georgia vehicle owner should determine for himself or herself just what coverage is necessary to best protect him or her in the event of a serious collision. For instance, in Georgia, it is not required that a vehicle owner purchase uninsured motorist coverage. This is insurance that protects the vehicle’s driver and occupants in the event of a collision with a driver who does not have any insurance. Although this other driver is violating the law by driving an uninsured vehicle, that will not provide any relief for injuries if the person injured does not have his own protection, known as UM coverage.

The purpose of this article is to stress the importance of knowing what your particular insurance policy says and what coverage it affords you. Motor Vehicle Insurance is governed by contract law. Your policy is a contract between you and the insurer. Despite how easy many insurance companies may make it to buy their insurance, taking shortcuts can be very detrimental to your interests in the event of a collision. Many insurance companies advertise on television and the radio that they can get insurance rates and applications in just 10 or 15 minutes. The problem with this “convenience” approach is that in Georgia, the person buying car insurance has a duty to read the insurance contract as issued and to evaluate for himself or herself whether it provides for the needed coverage.

This duty is not something any Georgia driver should take lightly. This means that you should not simply rely on what some representative whose first and last name you may not know or ever document tells you as you make a phone call to purchase insurance. Many companies have applications online, making it easy to purchase insurance in just a few clicks. Keep in mind that you are purchasing insurance in case the worst happens. Nobody ever wants to take advantage of their coverage or to get their money’s worth, so to speak.

If you are ever to really get your money’s worth out of any insurance policy, be it an automobile policy or even a homeowner’s or life insurance policy, it means that something really bad has happened. So, the best approach to this is to put the time in to research not just rates for automobile insurance, but customer service. In addition, you should always, always, read your policy . By reading a policy, you should be able to see and understand what exclusions are provided for in the policy. If you are not covered by the policy if you were to tow a boat behind your vehicle, you would want to know this before you take your boat to the lake.

This may sound really obvious, but think about how many times a day or week we scroll through websites and click that we have read and accepted certain terms in a given contractual agreement. Anyone who has an iTunes account with Apple knows that there are rather routine updates to the program requiring consent to purchase music or other media. How many of us have ever truly read one of these agreements? This is just one example of many, many such agreements.

Automobile insurance should be handled with more care and attention than these other agreements, although it may be presented with the same sort of ease or convenience. Many people find it appalling, but I often have to give clients terrible news that their policies do not provide the type of coverage they expected they paid for. A number of these folks believe they have “full coverage,” though few people will ever provide the same definition as to exactly what that means.

The most frequent disappointment does come when advising that a client does not have uninsured motorist coverage. Another type of coverage that many drivers are unclear as to whether or not they have is medpay. These are things that you want to know before you sign the policy. As I said, it is not enough just to get a declarations page, or the page that gives you the list of what your coverage is and how much your premiums and deductibles will be. Go the extra step and ask for a copy of the policy. Read the policy and ask questions if you have them. The time to do this is before you purchase the insurance. I can say that I have never had a client get a positive surprise regarding their coverage, limits, or exclusions.

Dismissal with prejudice vs. Dismissal without prejudice

Fri, 13 Jul 2012 02:44:00 GMT

Whats the difference between a dismissal with prejudice and a dismissal without prejudice?

Depending on the circumstances and the specific details of the case at hand, there is a big difference between a dismissal without prejudice and a dismissal with prejudice. A dismissal without prejudice, sometimes referred to as a DWOP, means that the plaintiff can re-file the lawsuit within the applicable statute of limitations, or within six months from the date of dismissal in the event the statute would run during that time frame. On the contrary, a dismissal with prejudice means that the cause of action, or lawsuit, is closed for good. Once a dismissal with prejudice is entered, the case can never be brought again.

During the course of litigation of a collection action, it is not unusual to have a plaintiff who wishes to dismiss the case. Of course, the plaintiff would always prefer to dismiss without prejudice so that they have the option of bringing the case back should they desire. However, there may be times when the plaintiff can be persuaded to dismiss with prejudice which should give the defendant some peace of mind and closure. Nobody wants to leave court thinking that they are still under the gun for a debt or subject to being served with process yet again.

Unfortunately, there is often confusion as to what kind of dismissal is taking place. We often hear from clients who thought the matter was closed for good or who paid other attorneys only to find themselves back in the same position as when they started. For other folks, the dismissal without prejudice may work just fine and they may never have the collector of that debt darken their doors again.

As I mentioned, there are many reasons that a plaintiff may dismiss. Depending on how strong the plaintiff’s documentation is, or whether or not they have witnesses readily available, they may dismiss to allow themselves more time to prepare the matter for trial or litigation. The plaintiff may also choose to dismiss in one court and to file in a different court for other tactical reasons. What is really most important is that the defendant knows what type of dismissal is being entered so that he or she can remain vigilant and prepared.

Finally, it should be noted that once dismissed without prejudice, the matter can only be filed one more time . If the plaintiff dismisses the matter a second time, even if it states that it is being done without prejudice, the matter will be forever closed. The plaintiff cannot bring the case back for a third time and the defendant should be aware of this fact to protect himself in the event this is the case. This is a very rare situation, but it is certainly something to watch out for.

How do I know if the amount demanded by the debt collector or debt buyer is accurate?

Fri, 13 Jul 2012 02:39:00 GMT

Debt buyers file lawsuits demanding amounts that may not be familiar to you. It is important that you know down to the penny how they calculated that amount and whether or not they are illegally collection interest or fees they are not entitled to collect. One of the most important questions a person can ask when he or she is being sued for a debt by a debt buyer or credit or even harassed by debt collectors over the phone is “How do I know that I owe you that amount?” This seems like it should be an easy question, but unfortunately it requires some work and some real analysis. The last person in the world you should ever trust as to how much you owe is the person or company trying to collect from you. They do not have your best interests in mind and stand to benefit from giving you inaccurate information. Don’t just take their word for it.

Companies like Portfolio Recovery Associates, LLC, or PRA for short, are in the business of buying charged off credit card debts and suing consumers for those amounts. Often, PRA may include a statement with a lawsuit that will have some amount that it claims it is due. However, PRA may refuse to provide documentation as to how it ends up with this amount unless the case goes to litigation and it is required to do so by law.

Furthermore, companies like PRA and Midland Funding, LLC do not generate the documents that itemize or show calculations as to how much is owed by a consumer in principal, late fees, interest, etc. Thus, at best they can only forward on what they have obtained by the original creditor, such as the credit card company, or some previous “owner” of the account, such as another debt buyer company.

If you were to go to a restaurant and have lunch with a friend, you expect an itemized bill at the end of your meal. If the server brought you a piece of paper that said $15.28, without any description of the items that you and your friend ordered and ate for lunch, you would ask for more explanation. You want to know that you are not paying for drinks that were not ordered and that the costs were what you recognized from the menu.

Well, in the case of a lawsuit by a third party debt buyer, you should never just take the company’s word as to how much you owe. The company may be including fees and other charges that it is not entitled to collect. The best way to deal with the situation is to compare the amounts demanded to your own records and notes regarding the account, but it is not always easy depending on how old the account may be. In fact, if the account is too old, it may no longer be collectible under the law in the manner the company is collecting and the debt buyer may be liable for violations of federal law.

If you do not have your own records or notes to compare, the best thing is to demand full documentation of the debt. This may mean that you have to use the power of the court to compel production of certain documents from the plaintiff debt buyer company or another party. What should be clear is that, just as there is a difference between paying for what you order at lunch and paying for an extra appetizer, there is a difference of perhaps tens, hundreds, or even thousands of dollars at stake when you fail to demand proof of every one of the allegations and/or claims made by debt buyers in the course of their collection lawsuits.

Why Should I Refuse To Give My Personal Information to a Debt Collector?

Fri, 13 Jul 2012 02:27:00 GMT

When speaking with a debt collector on the phone, DON’T be your own worst enemy!

Debt Collectors and their attorneys can often get some of the most useful and destructive information from the consumer himself or herself. Debt Collectors are trained in how to get personal information, such as dates of birth, social security numbers, addresses, bank account numbers, and other such information directly from the consumer with a simple phone call. This information is solicited often by the friendliest sounding person on the other end of the call whose sole goal is to exploit the consumer’s good manners, fears, and perhaps even a sense of responsibility or shame.

These friendly sounding collectors may call as if they are simply “updating” or “verifying” an account, or maybe they will act as though they are trying to help out the consumer by offering reduced amounts or lower terms. There are laws requiring that debt collectors not make false representations as they go about their collection work, but the law is only effective when the violators are caught or are at the very least concerned about getting caught.

Furthermore, there is no law at all that requires a consumer to provide personal information to debt collector or anyone for that matter over the phone. I often tell my clients that if a debt collector calls their home and asks for a social security number to “verify” identity or for any other purpose, they should first ask for the first and last name of the person on the other end of the call. Then, they should ask what company the person is calling from and what account number they are calling about. If the debt collector on the other end of the line won’t tell you even this basic information this is a huge red flag. Don’t even think about giving out any personal information during that call. Don’t give out information about your residence or workplace either.

If you picked up the phone and called a stranger, would you expect them to give up their social security number or date of birth just because you asked for it? Of course not.

The debt collector won’t trust you with their own last name. This is the best clue you will ever get that you should not trust them to verify anything. What is likely taking place during the course of these calls is that the debt collector is acquiring all of the information available to determine what property and accounts are available to satisfy an alleged outstanding debt. The debt collector may not have your social security number, date of birth, or current address until YOU give it to them. Depending on whether or not there is already a judgment, they may be preparing to garnish wages or accounts or start other damaging collection processes.

Instead of giving any information out over the telephone, which is never required under any circumstances, insist that any requests be made in writing. This way, there will be a record of the request that you can then review, keep for your records, and even show to an attorney if you have one. It cannot be more clear than this. Do not give out personal information to debt collectors over the telephone, period.

This is not the same type of call as when you call a credit card company or cable company to start a service. This is not the same as when you call one of these companies to discuss an account. In a situation such as that where you are familiar with the company and you have trusted them with this information upon opening your account with them, it is reasonable for the person on the other end to request personal information to protect against identity theft or other fraud. When a debt collector calls you, or when anyone for that matter calls you and requests that you give them your social security number or an account number, you should imagine a person on a bus asking you how much money is in your purse or wallet. Imagine how shocked and even scared you might feel if someone were to ask you that in public. This is how concerned and defensive you should feel when someone asks for this information over the phone.

If you refuse to provide the information over the phone, which you should, you will often quickly detect some annoyance on the part of the debt collector. They may become more aggressive and tell you that they are just trying to help you. They may begin to take on a much more authoritative tone and perhaps even sound more ominous and threatening. If this is what takes place, then you can be certain that you refused to cooperate with someone you had no business cooperating with in the first place.

However, there is one situation in which you may be forced to disclose some information regarding your assets or workplace if directed to do so by a court to a creditor who already has a judgment against you. This is called “Post Judgment Interrogatories” and is essentially a set of written questions sent to you usually by a collections attorney which asks for this information. It would also be filed with the court where the creditor has been granted the judgment against you. Regardless, this request is in writing and would never be asked of you over the phone.

Riding in cars with boys….and 1600 tablets of ecstasy MDMA

Wed, 27 Jun 2012 14:00:00 GMT

State v. Martin

D. Martin is a 23 year old girl who travelled to Georgia from her home in Mississippi. Traveling with her were her boyfriend, G. Heard, and his friend, T.Fellows, whom she had only met on one occasion. The three of them came to Georgia for a weekend away and so that she could look at housing and perhaps even jobs in Georgia.

On their second to last night in town, the three went to the home of the cousin of Mr. Fellows. Ms. Martin was enjoying watching television with Mr. Fellows’ cousin’s family and playing with the young children in the household. Mr. Heard and Mr. Fellows then announced that they were going to grab something to eat. The two men were then gone for what seemed like a very long time. Ms. Martin could not say how long exactly, but remembered that she had watched the majority of a movie with the kids.

When the men came back, they all left and went back to the hotel. The next morning, on their way back to Mississippi, Ms. Martin was driving and got pulled over for speeding. The officer came to the window and retrieved her license and registration. He asked if Ms. Martin would consent to a search of her vehicle. Without a moment of hesitation, she says yes.

As the officer searches the vehicle after asking the two male passengers to step out, he quickly draws his pistol and tells all of them to get on the ground. It seems he located a wal-mart bag with around 1600 tablets of suspected ecstasy, or MDMA. The officer arrested Martin and the two men beginning what was to be some of the darkest days of Ms. Martin’s life.

Ms. Martin’s family came in and we were able to get her a bond that she could make. From the outset, the investigating officers seemed aware that Ms. Martin’s involvement in any crime, if at all, was going to be extremely limited. She had no criminal record at all, whereas Heard and Fellows had experience in such activities and could not claim they had no idea what was going on.

Although Ms. Martin would have liked to cooperate with the police and point fingers at one or both of the men in exchange for the peace of mind that she would not go to prison, she could not do so. Ms. Martin had never seen the bag before the officer threw it up on the hood of the patrol car after she had been handcuffed. In the police video, she can be heard asking her boyfriend what it was exactly that was in the car. She was, quite simply, in the wrong place at the wrong time.

Unfortunately, this situation is not unique. Many people are arrested while standing with, being near, or even just riding in the car with someone who possesses drugs or contraband. In Georgia and in many other jurisdictions, mere presence at the scene of a crime is not sufficient grounds in and of itself for a conviction. However, it can result in some very grave situations for those who had the misfortune of associating with the wrong people at the wrong time.

Getting back to Ms. Martin’s case, in the time that it took to get the case indicted by a grand jury and to have it set for a trial, Mr. Heard got himself locked up for robbery and after a guilty plea was spending 10 years in prison and Mr. Fellows got charged with a different trafficking case in Mississippi. Without a doubt, Ms. Martin could choose better boyfriends and people to associate with. However, I am pleased to report that at the very last minute, the State dropped the charges against her so that she could resume her schooling and put this ordeal behind her.

Do Not Become a Victim of a Secret Shopper Scam

Wed, 27 Jun 2012 13:58:00 GMT

Over the course of the past year or two, we have seen a rise in the number of clients who have fallen prey to the “Secret Shopper” scam or something similar. This is a scam that most often begins with an email offering either a job or sweepstakes win that seems too good to be true. Next, once the person responds, more convincing letters, emails, and phone calls seal the deal and entice the unsuspecting victim into engaging in a task that will ultimately result in a loss of the person’s money and arrest of the person, or both.

What happens is that the person who is contacted is asked to go do an assignment, such as deposit a check or money order at a bank or financial institution. The person is asked to evaluate the service at the location and track down some other information, and then to send the money that is obtained back to the company or person who is initiating the scam. Once this is done, the person is promised a return or fee for their honest day’s work.

What happens is that the checks or money orders turn out to be fraudulent. Many times, the banks or check cashing locations catch the forgeries at the time and the person may be arrested on the spot, never knowing the documents were fakes. Other times, the bank may process the check or even let the person open an account with it. A number of days later, after the money has been withdrawn and forwarded to the scammer, the bank notifies the unsuspecting victim that the documents were fake, the account is overdrawn, and unless payment is immediately made to the bank, an arrest and prosecution will follow for forgery or deposit account fraud.

The other common variety of the scam is not so much based upon a “secret shopper job,” but instead advises the victim that he or she has won $20,000.00, and that by depositing a check for costs or sending a check for costs, the check for the big amount will come in a day or two. The first check is usually sent via FedEx, as are most of the more legitimate-looking documents that the scammers will send.

These scams may sound really stupid. It may seem as if only really naïve, greedy people would fall for it. However, we have seen very smart individuals fall victim to these types of scams because of some of the better “packaging” and presentation of the scam’s perpetrators. Sure, there are many that just send out thousands upon thousands of emails to snatch up anyone that responds, but someone responds. All it takes is one. Of all the victims that we have seen, heard or, and represented at our firm, most lost between $4,000 and $10,000 of their own money. This does not include the costs of their defense to the criminal charges that were brought against them.

How can I be charged with a crime? I was a victim and lost money in the scam.

There is no requirement that a person benefit from a crime in order for there to be a conviction. In many circumstances, the crime does not even have to be completed. In these cases, the person who is a victim is charged with presented forged documents, such as checks or money orders. Sometimes, these people will try to start bank accounts using their real addresses and personal information. Although common sense says that nobody who wanted to perpetrate a crime would use his real information, the fact is that some people do just this. The police do their best to sort out the cases where the people were truly just victims, but it often takes a lot more than just having suffered your own loss of the money to persuade them.

We have successfully handled many of these cases without having our clients plead guilty or nolo to any criminal offense, but they have not been easy cases. In fact, we often are so proactive in handling these cases that we provide the police and investigators with information that they very likely would not have if it was not for our efforts. It is in this manner that we prepare our clients for trial by jury, if necessary, such that we can show that our clients are the real victims in the case and never had any criminal intent.

Ultimately, people should always be wary of those deals and offers that are too good to be true. As we have seen, common victims of these scams are the elderly, people who may be mentally or emotionally challenged, and foreigners. Like I mentioned earlier, I am certain that, based upon how intelligent some of our victim/clients have been, there are many victims who avoid prosecution by simply paying any damages immediately to third parties like banks or check cashing places. This way, the more savvy folks who have the means can also avoid any public embarrassment.

Garnishments: An ounce of prevention worth a pound of the cure

Mon, 28 May 2012 16:10:00 GMT

Recently, more and more calls are coming into my office concerning garnishments and people wanting to contest them. A garnishment is a court proceeding in which a judgment-holder attempts to seize money from someone’s bank account, paycheck, or other property interest to satisfy a debt that the court has determined is owed. These are mostly folks trying to protect their paychecks from being significantly reduced to satisfy what are usually very old debts. Some are folks trying to protect against collection demands and holds against their bank accounts. As I hope this will explain, an ounce of prevention in these situations is worth far more than a pound of “cure.”

In order for there to be a valid garnishment action filed, a judgment must already have been entered against the person.

This means that the battle has already been lost and protecting against the garnishment is almost always an uphill battle. The fact that there is already a judgment means that a lawsuit has already happened and ended, and that the person now being garnished has lost. Many times, this may have all taken place with the person being garnished knowing very little at all about the lawsuit.

This can happen when a person is served with a lawsuit but does not realize what action he or she must take in response. If enough time passes, then the person or company that has sued will win in court by default. This is just about as bad as things can get. In other cases, the person may have answered appropriately, but due to the knowledge of the plaintiff or their attorneys many things can have taken place that ultimately resulted in the person losing the lawsuit.

Now there are occasions when the lawsuit was lost, but due to some error or legal oversight the person being garnished should not have lost in the first place. Although you do not typically get a “do-over” in court, if there was not proper service in the first place and the person did not even know that there was a lawsuit, much less that he or she had lost the suit, until a garnishment was filed, there may be an opportunity to challenge both the garnishment and the underlying judgment.

In these situations, the person being garnished needs to file what is called a traverse to the garnishment, as well as other motions pertaining to the underlying judgment. There may be proceedings that have to take place in more than one county or court and the actions needed to “fix” the situation may be quite complex. However, depending on the amount of the debt, which may have drastically increased since the last time the person thought about it or saw it, it may be worthwhile to investigate what it takes to fight the garnishment.

Unfortunately, for many of the people who contact my office, by the time there is a garnishment, too much damage has already been done. Cases that may have been won had they been defended properly have been lost. It always troubles me to see when someone who never owed a debt in the first place is held responsible for it and has to pay simply because they did not know what to do, how to do it, or was just intimidated by the entire process. There are many predatory debt collectors out there who know how to manipulate the system to achieve this result. Some of them do not even care whether or not the person who ends up paying the debt was ever really responsible for the debt in the first place.

Once again, the lesson to be learned is that when in doubt, it is always advisable to seek legal counsel when an action is filed against you. Do not wait or assume you owe a debt unless and until the party seeking collection proves that you in fact owe the money and that the amount they say you owe is accurate. The debt collectors are patient and, even if you have no money right now, they will wait months and years until you do, perhaps taking action when you least expect it.

The Value of Uninsured Motorist Insurance Coverage

Mon, 28 May 2012 15:59:00 GMT

One of the most devastating moments for some of my clients comes after a collision has taken place and they have been seriously hurt. The devastation at that point is not necessarily the fact that they were injured in a car wreck, but learning that the insurance that they have been paying for does not protect them, but the other driver.

The law requires that a driver have minimum coverage of $25,000. This insurance is there so that if a collision takes place for which the driver is at fault, the other driver has some recovery. In the end $25,000 may sound like a lot of money, but it is very small when you consider how much a serious injury can end up costing in medical bills, lost time at work, and a host of other factors.

The point of this article is to address uninsured motorist coverage. This is additional insurance over and above that $25,000 that covers the driver in the event that he or she is involved in a car wreck where the other driver did not have any insurance for whatever reason. Yes, the other driver was breaking the law by driving without insurance, but this is far more common than any of us would like to believe. When a person is hit by a driver without insurance, unless there is uninsured motorist coverage, the person may absolutely have little or no ability to receive any compensation for his or her injuries. It is in that moment that the person realizes that the insurance they have been paying for, that minimum $25,000, does not mean that the insurance company pays him or her.

With uninsured motorist coverage, if and when a person is hit by someone without insurance, the driver’s own insurance company stands in the place of the other driver and may end up being responsible for paying compensation for the injuries that the driver sustained. This additional insurance is vital given how many drivers are in the country illegally and how many are driving without valid insurance. Although many would argue that it should be required by law, it is not at this time, and that means that many people out there are driving around unprotected.

I always feel terrible when I have to advise clients that they have no recourse but to file a lawsuit against someone who may be incarcerated because they were here illegally or perhaps against someone who was driving without insurance because they had no money. In these situations, the chance of my client ever being able to get paid the first dime in compensation is usually a longshot. Many times, my clients chose not to purchase uninsured motorist coverage, or “UM” or “UIM” as it may be called, because they wanted to save as much money as possible when buying insurance.

Insurance is not something anyone ever wants to get there money’s worth from. Even if you have excellent uninsured motorist coverage, the only way you will ever “get your money’s worth” is to be seriously injured. Although the wish to save money is something most of us want to do whenever possible, car insurance is not the place to cut corners. As I learned years and years ago when I first took driver’s education as a teenager, the question is not whether or not you will be in a car wreck, but when and how serious the wreck will be. I do not believe I have ever met anyone who has been driving for more than 10 or 15 years who has never been in any car wreck. No matter how safe or defensive a driver you are, the other guy or girl behind the wheel may be talking, texting, drinking, eating, playing with the radio, or engaging in some other activity that takes their attention of the road.

In the end, it is best to evaluate what insurance you have and to ensure that you are sufficiently protected against a host of likely scenarios. As for uninsured motorists, they are far more prevalent on our roads than they should be and anyone who fails to purchase this insurance coverage is placing themselves in a very, very dangerous situation.

Nightline: Woman Fights to Collect $10 million Judgment from Abusive Debt Collectors FDCPA Violations

Wed, 02 May 2012 03:40:00 GMT

On April 25, 2012, Nightline aired a segment, “Woman Fights to Collect from Collectors” [ View Nightline Episode Here ] in which a woman won a $10,086,000 judgment against abusive debt collector “RFA” for harassment and violations of the Fair Debt Collection Practices Act (FDCPA). RFA is an outfit run by Asset & Capital Managent Group ACM Group in Tustin California. The woman details how RFA called her for a debt she didn’t even owe and how terrified she became of the voice on the other line calling her vulgar names and threatening to “gang bang” her. Even worse, this call appeared to be coming from her local sheriff’s department because the debt collector had manipulated the caller ID output. She recorded all of her phone conversations and hired an attorney to hold RFA accountable for their violations of the Fair Debt Collection Practices Act (FDCPA) which prohibits this abusive behavior by debt collectors. Despite the fact that she was successful in winning her lawsuit, she expressed skepticism about whether or not she would ever see a dime of that money as RFA has yet to pay. Their lawyer calls the judgment “unfair”.

It is scary to think how many others might be out there that have endured this same abuse and harassment by RFA but did not act to hold RFA accountable for their actions. Even scarier, how many people succumbed to this abuse and paid RFA the money they were seeking to stop the abuse?

It is important to remember that the Fair Debt Collection Practices Act (FDCPA) prohibits this abusive behavior and provides for a statutory penalty of up to $1,000 to the victim of such abusive practices. You must be vigilant in holding debt collectors accountable for their abusive actions. If you are receiving abusive phonecalls, contact our office today. The one place you should always feel safe is your home. Just because debt collectors have a telephone doesn’t mean they have the right to abuse you with it.

Read more about the Fair Debt Collection Practices Act (FDCPA) and download your digital copy of the Federal Law at the Federal Trade Commission’s website here .

Free Debt Collection Consumer Education Clinic

Fri, 16 Mar 2012 23:48:00 GMT

FREE Debt Collection Consumer Education Clinic!

Volunteer attorneys educating the public about debt collection lawsuits

May 29, 2012 June 12 & 26, 2012 July 10 & 24, 2012 August 7 & 21, 2012 5:30-7:00 pm Decatur Branch of the DeKalb County Library. 215 Sycamore Street,Decatur, Georgia 30030

Are you struggling with debt? If you have been sued for a debt and you have questions about how to respond, how the process works, or what your rights are? The DeKalb Volunteer Lawyers Foundation has answers. Local attorneys will provide useful information to people who are being sued in consumer debt cases in DeKalb County. There will be an opportunity for short one-on-one conversations with the attorneys present. Participants are requested to bring all documents related to their case.

See the DeKalb County Public Library Events Calendar – Debt Clinic

Along with other prominent consumer attorneys of Atlanta, Daniel DeWoskin will be sharing his knowledge on the topic of debt collection lawsuits.

This event is sponsored by the DeKalb Volunteer Lawyers Foundation .

The Decatur branch of the DeKalb County Library System is conveniently located within walking distance of MARTA and the DeKalb County courthouse. For directions from Google Maps, click here.

It’s More Profitable to Violate Debt Collection Laws

Mon, 12 Mar 2012 04:12:00 GMT

It is refreshing when debt collectors are held liable for their violations of consumer debt protection laws, but these consequences are often not enough to deter big debt collection companies from breaking the law to see bigger profits.

It is not everyday that debt collectors who engage in unlawful activity are held accountable for their actions. Thus, when it does occur, it is an occasion to be celebrated. Unfortunately, the celebration and victory may bring little or no relief to the parties who have suffered due to the illegal activities.

Recently, a Georgia debt collections company, Dorsey Thornton & Associates, LLC, entered into a settlement for $15,500,000.00 with the Governor’s Office of Consumer Protection (OCP). See Press Release Here. This settlement was achieved in response to the OCP’s investigation into reports that Dorsey Thornton threatened consumers with arrest or imprisonment, misidentification of themselves, other deceptive tactics in pursuit of debt collections, and refusal to send written documentation of debts they attempted to collect.

All of these things, and many others the company is alleged to have engaged in, are violations of the Fair Debt Collection Practices Act and could have cost the company far more had more consumers known how to hold the company accountable for its actions. $15,500,000.00 is a lot of money for a settlement of this sort, or so it would seem. However, history shows that even in light of these sizable settlements, they are but a drop in the bucket, or at the very least only a minor deterrent to the continuation of the illegal activities by debt collectors.

For instance, consider that Encore Capital, a San Diego-based debt buyer and one of the country’s largest debt buyers by revenue, reported gross collections of $761,200,000.00 last year alone. The company’s net income totaled $61,000,000.00 on $467,400,000.00 in revenue. Without going into too much detail in explaining these numbers, this company was extremely profitable.

So, considering how much money can be made by collections, and how much more money can be made when these debt collection companies engage in fear and intimidation tactics that violate the law, getting caught is a relatively moderate risk. Paying the price, so to speak, once these companies are caught and held accountable should not keep their boards of directors awake at night.

Currently, West Virginia’s Attorney General is suing Midland Credit Management and Midland Funding, LLC, both affiliates of Encore Capital. The suit alleges that robo-signers were used to obtain default judgments in violation of state and federal law. Although this suit will not take down the company and will likely not result in a sea change in the way Encore or any other collection company does business, some accountability for consumers is always better than no accountability.

As I always do, I close this article by encouraging consumers to be vigilant in dealing with debt collectors. Know your rights as a consumer. Do not ever take a debt collector’s word about what you owe and/or whom you owe it to. Know what is on your credit report and take action to correct and dispute inaccurate information. Be proactive and stand up for your rights. Vigilance is the best tool you have to not becoming just another victim.

DUI – What is the ten (10)day rule?

Thu, 02 Feb 2012 04:33:00 GMT

Arrested for DUI? Be aware of the “10 day rule”!

It could affect your ability to drive in the state of Georgia.

The “Ten Day Rule,” as it is sometimes called, refers to the requirement that a driver who is notified that his/her license is being suspended for either a.) Submitting to a state administered breath test that resulted in a blood alcohol content of 0.08 (Georgia legal limit) or higher OR b.) refusing to submit to a state breath test has ONLY TEN DAYS to appeal the suspension of his/her Georgia drivers license.

If an appeal and a request for a hearing is not timely filed, along with a filing fee of $150.00, the driver’s license is suspended after the expiration of thirty (30) days.

Depending on whether the person submitted to the breath test, there may be ways in which the person can avoid the suspension of his/her privileges for a full year. Simply put, whenever a person is arrested and charged with DUI, it is extremely important to seek the advice of qualified counsel at the earliest possible moment. Even taking a few days to decompress or form a game plan can compromise the driver’s case in very serious ways.

DUI – Refusing the Breath Test

Thu, 02 Feb 2012 04:18:00 GMT

DUI – WHAT HAPPENS IF I REFUSE TO SUBMIT TO A BREATH TEST?

You’ve been pulled over in a routine traffic stop. The officer suspects you may be under the influence of alcohol and asks you if you will submit to a breathe test. This is among the most difficult decisions that my clients and other drivers must make when asked by a law enforcement officer on the side of the road. One of the most common questions that I am asked in regards to my DUI defense cases is what happens when my clients decide not to submit to the breath test.

To begin, there are two distinct types of breath tests. There is what is often called a preliminary breath test, or PBT, which is only admissible in court to show that there was a presence of alcohol in a driver’s system. This is often redundant for the officer when the driver admits to having had two drinks, or admits to having drank any alcohol. The other test is the state administered breathalyzer test, which is a much more complicated piece of machinery that requires state certification and training to operate.

In order for the officer to ask for a driver to submit to this breathalyzer test, several conditions must be met. There must be probable cause for the stop of the driver. The driver must be under arrest. The driver must be read what is called “implied consent,” which is a very specific notification advising the driver on what might occur if he/she refuses to submit to the test. There are other requirements as well. If these conditions are not met, the officer risks that the results of the test may be inadmissible as evidence at a later trial.

Many drivers, when faced with the question of whether or not to submit to the test, are not in the best position to make an informed choice. These drivers are most often in an extremely high-stress situation. They are terrified about what is happening and unsure about what will happen next. They may not know how long they will be in custody and are thinking about what they will tell their spouses, their bosses, their parents, or whomever else may be expecting them next. The drivers are almost uniformly denied the opportunity to consult a lawyer and ask what they should do. Thus, many agree to submit to the test out of fear of the consequences if they refuse.

The consequences for refusal are significant. If a driver refuses to submit to the state administered test and the officer has met the precondition requirements, the driver’s license to drive can be suspended for one year. This suspension is different from the suspension that would take place upon a conviction for DUI and does not come in as evidence in the criminal case. In fact, this suspension is the subject of a separate court and civil hearing, if the driver files the appropriate paperwork and appeals the officer’s notice of suspension for failure to consent to the test.

If this sounds complicated, it is because there are a lot of moving parts and considerations that must be made within a specific time frame. In certain cases, it may be in the driver’s best interests to refuse the test, endure a license suspension, and maintain a better chance of success in taking the case to trial. If the driver submits and there is a test result of 0.08 or higher, the prosecution’s case against the driver is often much, much stronger. This is true because regardless of how well a driver appears to handle field sobriety evaluations on a police car video, the jury is authorized to convict a driver of DUI when he/she has an unlawful blood alcohol content, or BAC.

So, while it is difficult to say whether or not the suspension will stick or be upheld in court, the most serious consequence for a refusal to submit to the state administered test is a one year suspension of the person’s driving privileges. These considerations impact how the criminal aspects of the case should be handled and typically change the strategy on handling the case depending on the jurisdiction.

Statute of Limitations – Avoid the Trap with Time-Barred Debts

Thu, 02 Feb 2012 03:43:00 GMT

Just Because the Statute of Limitations has passed on debt it doesnt mean debt collectors will stop trying to get you to pay!

Time-barred debts also known as Zombie Debt are debts for which the statute of limitations has passed. What this means is that a lawsuit cannot legally be filed against you if the debt is too old and the collector has failed to file a lawsuit in time. This does not mean, by any stretch of the imagination, that debt buyers and collectors will not still pursue you. If they do so, depending on the manner in which they go about their collection efforts, they may be in flagrant violation of the law.

In Georgia, the Statute of Limitations for debts, generally, is four years for actions on an account and six years for actions on a contract and these types of claims are common on credit card debt lawsuit

It is up to you as the consumer to ask the right questions, to request the right documentation, and to take the appropriate action when you are contacted by a debt collector. Do not trust the collector to have accurate information and never, NEVER, take their word for it without seeing records of the account or debt. These debt collectors know that it is much easier to get consumers to pay when they put you in fear of being sued, jailed, or some other frightening situation. Unfortunately, when debt collectors act within the boundaries of the law, they know that their job of collecting is much more difficult. People don’t tend to pay just because the debt collectors shame them or simply ask.

If the consumer does try to pay something or perhaps generates some new activity on the account or debt, the statute of limitations may start all over. This is a big risk and has given rise to clever new ways for collectors to engage consumers in their collection efforts. Not to mention, the debt collector now knows you’ll pay and may ramp up efforts to increase those payments.

As a general rule, never speak with a debt collector if they are unwilling to provide documentation of the validity or verification of the debt. When you ask questions and they respond with statements like, “We’ve given you plenty of time” or “We’ve already sent you those documents,” tell them to resend them and hang up the phone. Always document who is calling, what company they work for, and what account number goes with the debt they are seeking payment for.

You will find that they are often completely unwilling to provide some or all of this information. They may become more aggressive in their tone or language as you demand this information. However, this does not mean that their case is strong, but is instead a clear indication that there is something wrong with the debt. Either they cannot prove the debt or it may be time-barred. In fact, they may resort to wishing you luck in court, telling you they are going to forward it to the “legal department,” or suggesting some other action which would be in clear violation of federal law including the Fair Debt Collection Practices Act (FDCPA).

Sometimes they might send you documents titled “Bill of Sale” or “Assignment”. Be wary of documents that do not reference your name or debt specifically. It is also not uncommon for these debt collectors to put affidavits with these documents of one of their employees who swears they are personally familiar with the account records. Sometimes the debt collector’s own documents produced to you clearly show they are suing you on a time barred debt.

Occasionally when these collection efforts cross the line, the companies responsible are held accountable for their actions. A recent situation cost Asset Acceptance, a large debt buyer company, $2.5 million dollars. See the Federal Trade Commission’s Recent Press Release on Asset Acceptance (January 31, 2012).

You may wonder why they continue to conduct themselves this way and the answer is simple. It works. They make lots of money by engaging in illegal collection activities and preying on consumers. They make so much money that it is well worth the risk of getting caught. Think of criminals who rob banks, stores, and people. Sometimes they get caught and it gets on the news. Sometimes they go to prison. Still, just as sure as the sun will come up tomorrow and the day after, someone will try to rob a bank or a store.

Finally, as always, knowledge is power. Don’t be intimidated by a debt collector. Debt collectors hate it when consumers are knowledgeable and diligent in asking for proper documentation of the debt. Gather all the information you can. Do your own research as best you can, and then do not be afraid to speak to a consumer attorney if you think you are being victimized by illegal collection activities.

Debt Collector Portfolio Recovery Associates Named in top 10 Call Spammers of 2011

Sun, 22 Jan 2012 16:28:00 GMT

Portfolio Recovery Associates was named one of the top ten most aggressive call spammers of 2011 according to a December 2011 article by White Pages. Portfolio Recovery Associates is a junk debt buyer who calls, mails, and sues consumers across the country usually for charged-off or old credit card debts. According to the article, the numbers most frequently associated with this company are (757) 275-8578, (757) 506-0177 and (731) 256-7106.

Nothing is more annoying or embarrassing than getting constant unwanted debt collection phone calls. No one deserves to be harassed by debt collectors. If you are being harassed by Portfolio Recovery Associates or being sued by Portfolio Recovery Associates, contact us today. You may have a case, legal defenses or counterclaims against Portfolio Recovery Associates for violations of the Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), Georgia Fair Business Practices Act, or Telephone Consumer Protection Act (TCPA).

See full article: WhitePages Identifies the Ten Most Aggressive “Call Spammers” of 2011 (December 22, 2011)

Consumer Debt Collection Resources

Fri, 16 Dec 2011 02:52:00 GMT

Become an Informed Consumer, Debt Collectors hate it….

Debt collectors hate informed consumers – they are the ones that can document violations and hold them accountable for their actions. Unfortunately, the vast majority of consumers are not aware of the consumer laws in place to protect them and aren’t able to recognize those violations being committed by debt collectors. The following are resources from the Federal Trade Commission discussing different aspects of consumer debt collection.

Unpaid Bills Land Some Debtors Behind Bars : NPR

Mon, 12 Dec 2011 16:17:00 GMT

Unpaid Bills Land Some Debtors Behind Bars : NPR .

This is a disturbing trend. The fact of the matter is that in Georgia, as I would expect is the case in many other states, there is a manner by which people end up going to jail simply because they owed debts to some party.

I say to “some party” because so many of the debts for which people are sued and may go to jail are really brought by third party debt buyers. These debt buyers are companies that most people being sued have never even heard of. The companies did not lend these people a dime but now are abusing the legal process to pull out all the stops and collect. This may even involve trying to have people locked up.

In Georgia, although they cannot ask the courts to lock people up simply because they owe money or fail to answer a lawsuit, there are jurisdictions which offer unscrupulous debt collectors another option. Once they have obtained the judgment, either by a default due to a simple failure to answer or through some unfair meddling with the process of service of the lawsuit, these debt collectors may send out post-judgment discovery. There are rules governing this discovery, but the fact remains that failure to provide any response may subject the debtor to a contempt of court charge, greatly raising the stakes for the unsuspecting debtor who thought this ended with a judgment and the havoc that it can wreak on one’s credit.

As you well know, those people who lack resources, knowledge, or access to legal counsel and/or advice are especially vulnerable to these tactics. Suddenly, when they are pulled over for a traffic violation, they are arrested having no knowledge of any warrants or other “criminal” infractions for which they get arrested. These debt buyers and other creditors now have their attention, and have these victims right where they want them.

So now, where someone made the decision (or felt as though they had no options or choices at all) to not answer and fight a lawsuit, they now have to scramble to beg and borrow and scratch whatever they can just to get out of jail and return home to their families and their lives. This is a calculated abuse by debt collectors and they are unquestionably aware of what they are doing.

As always, the best protection against being a victim is vigilance. The saying that knowledge is power is as true as ever. Although there is little one can do when there is an abuse of process and they did not know of a lawsuit to begin with, staying apprised of one’s credit reports and who claims ownership of debts is a good start to protecting against this sort of predatory acts.

Are you Saving those Dunning letters from Debt Collectors? You Should Be!

Mon, 05 Dec 2011 16:52:00 GMT

The Importance of Saving Dunning Letters from Debt Collectors

Fortunately, 15 U.S.C. sec. 1692 of the federal law is designed to protect us as consumers from unscrupulous collectors who would make false representations of the character, amount, or legal status of any debt. This means that when they claim debts against a relative who has no obligation to pay them, or claim debts that have discharged in bankruptcy, or claim that they are the rightful holder or owner of a debt when in fact they are not, they may be in clear violation of federal law. By “rightful holder,” I mean simply that they claim they have the right and legal authority to sue and claim ownership of the debt. These are just a few among many, many more violations that debt collectors may routinely engage in as they prey upon unwitting consumers.

It is quite common for debt collectors, including attorneys’ offices, to resort to using fear tactics, false statements, and language that violates this law when trying to collect debts. These debt collectors engage in such practices because there are rarely held accountable for their violations and it happens to be a business where being cordial and professional often clearly results in fewer successful collections. Many times, they get away with this sort of illegal behavior because the victims of their wrongful collection actions are unaware that they have rights to pursue these debt collectors for damages. They may also get away with this conduct because the victims fail to maintain documents or evidence of the illegal activity.

Logically, you are already aware of the fact that a case against a debt collector is stronger and can be pursued more aggressively by a knowledgeable consumer attorney when the person who was targeted by the debt collector has letter after letter proving the violations of federal law. Somehow, these letters get misplaced or thrown in the trash, often because the victim thinks that it was a simple, innocent mistake and that it will not happen again. You should keep envelopes too for post marking and debt specific reasons. These will often be the easiest ways to establish relevant dates and times that a violation of the law took place. They may also help establish a timeline as to other important events in the communication.

Do not dispose of what may be the strongest evidence of a Fair Debt Collection Practices Act FDCPA violation . In many situations, the actions taken by debt collectors may only be ramped up according to the response they get from you. If you make it a priority to keep the letter, an attorney can best determine whether or not you have been a victim of wrongful collection action.

The three things that you should do if you receive a dunning letter are:

Once you have done these things, you will want to consult with an attorney to discuss possible defenses you may have to the collection efforts. There are a lot of steps that debt collectors must ensure they have taken as they attempt to collect a debt. Even if you wish to resolve the matter by paying the debt, it is extremely important you protect yourself by making sure you pay the right person, that you get credit for your payment, and that you do not cause yourself further trouble by trying to do what might first seem to be the right thing.

What is a debt buyer?

Tue, 09 Aug 2011 03:30:00 GMT

So what is a debt buyer?

Debt buyer – Wikipedia, the free encyclopedia .

In the context of debt collection and debt collection lawsuits, a debt buyer is a company, individual even a law firm who buys charged-off debts, usually for pennies on the dollar, and attempts to collect the full face value of the debt. For example, large debt buyers such as Encore Capital (known to Defendant consumers as “Midland Funding”) or Portfolio Recovery Associates buy large portfolios of charged-off debts, usually thousands of accounts at a time from major banks and credit card issuers such as Chase Bank and Citibank. They systemically score these accounts on probability of collection, whether or not the debtor has assets, and filing thousands of lawsuits against consumers to collect on those debts. It’s an extremely profitable business for them.

As you read this definition, think of a yacht crossing turbulent ocean waters when it comes upon a lone man adrift in the waves. The man, exhausted from the ordeal since his ship wrecked and he was lost at sea, reaches up his arm toward the safety of the oncoming ship. Slowly, a sturdy hand reaches down from the bow of the yacht toward the man’s arm outstretched for help, and the hand from the yacht quickly unstraps the watch attached to the drowning man’s arm. The yacht then sails away leaving the man to drown.

This industry is ruthless. Now, similar comments could be made of the credit card companies that initially issued the credit at exorbitant interest rates, but this is something different. These debt buyers take very little risk in their activities, seek to maximize profits through intimidation, abuse of the legal system, and a steadfast refusal to acknowledge that any debt they buy might not in fact be valid or substantiated by documentation.

Should you or a loved one ever have the misfortune to cross paths with these debt buyers, do not believe a word that they utter. Maintain documents they send to you and insist that they prove every single allegation they make regarding a debt that they claim you owe. The more you make this demand, the more you can expect them to try to bully you, intimidate you, or demean you. There are resources available to help you defend yourself. Seek knowledgeable counsel and do your homework. These companies can be held accountable, but you must be vigilant.

Officials Raid Collection Agency, Arrest Three

Fri, 29 Jul 2011 16:25:00 GMT

Officials Raid Collection Agency, Arrest Three .

There are people in this world who seek nothing more than to steal what is yours and make it there own. They are unscrupulous and resourceful.

I can often be heard discussing how debt collectors and debt buyers violate federal and state law. I can also be heard saying how many of these people are just crooks or thugs who use fraudulent paperwork, telephones, and the courts to intimidate and rob good people instead of guns or knives. Well…

This bit of news about some of these very thugs in Florida is unfortunately not shocking, but more of the same. You must realize that even the giant, well-funded debt buyers who provide a secondary market for charged-off debt operate on a “trust us” business model. They sue you expecting you to trust them, or some superficial documentation, and to ultimately pay them money for which they can’t prove you owe. Thus, any money you may pay these companies is derived from your fear, embarrassment, or sense of responsibility.

I do not fault people targeted by these debt buyers who are scared or embarrassed, but instead the debt buyers for wrongfully putting them in this position without proper foundation of the debt. As for the sense of responsibility, I commend those people who seek to honor this sense, but it is misplaced. It is the equivalent of borrowing money from a friend, and when you cannot pay it back, you go to your dentist to apologize. It makes no sense!! If there is one takeaway from this story about the thugs who were arrested in Florida in this story, it is this: DO NOT TAKE A DEBT COLLECTOR’S WORD-MAKE THEM SHOW YOU PROOF YOU OWE MONEY TO THEM.

There are legal resources available to assist you and laws designed to protect you from these people and these companies. If you think you need to take action, be proactive and do so before it is too late.

FAQs Debt Collection Lawsuits Answers to the Most Frequently Asked Questions

Sun, 24 Jul 2011 03:50:00 GMT

Frequently Asked Questions

Answers to the most frequently asked debt collection questions….

I am not aware of any lawsuit against me, but I keep getting these lawyer advertisements in the mail about some lawsuit. How can I find out more information?

You will often receive a lot of solicitations in the mail before you are even aware that the lawsuit has been filed. Why? Because the filing of lawsuits is public record and many bankruptcy and consumer attorneys get the list of debt collection defendants and their addresses before the process server has actually served you with the lawsuit.

If you are in DeKalb County, the phone number to the DeKalb County Courthouse is (404) 371-2261. You can also look up your case online through the DeKalb County’s Online Judicial System (OJS)

I called and confirmed that a lawsuit was filed against me but I haven’t received any paperwork. What happens now?

When a lawsuit is filed, it is the Plaintiff’s responsibility to “serve” the lawsuit upon the Defendant. This is accomplished using a “process server”, who can be Sheriff or a private process server. They usually come to your home and hand you the paperwork. In some counties, Magistrate court cases are “served” in the mail without using a process server. In some circumstances, there are grounds for the lawsuit to be dismissed if the Plaintiff does not serve the Defendant according to the court rules.

If I haven’t been served a lawsuit yet – Can’t I just avoid the process server and not answer my door?

Avoiding service of a lawsuit will not help your situation. In fact, if a process server attempts to serve you multiple times and is not successful in doing so, the plaintiff may try a different method, which is “service by publication”. This means they will run an ad in the local legal newspaper to notify you of the lawsuit. If you don’t read your local legal newspaper, which is the DeKalb Champion for DeKalb County, you may not know when this “service by publication” occurs. If they do this according to the rules of notice by publication, they will have successfully “served” you and can move forward with the proceedings whether you answer or not. If you fail to answer, a default judgment can be entered against you, and the Plaintiff could then move to garnish wages or your bank account.

If you decide to retain us to defend you against the lawsuit, we can accept service of the lawsuit on your behalf. This eliminates the stress and anxiety of wondering when you will be served.

What happens if I just ignore the lawsuit?

If you fail to file an Answer to the lawsuit in the 30 day period, you may face a default judgment being entered against you whether you owed the money or not. After a judgment is entered against you, the debt collector may garnish your wages or levy your bank account to collect on the judgment!

Can’t I just file an Answer to the lawsuit myself? Why do I need a lawyer?

Remember, only approximately 3% of people even Answer these lawsuits at all. Some of the ones who do answer them, do so pro se , which means they represent themselves and often times to their own peril. The court room is an intimidating place and defendants who are representing themselves are at a huge disadvantage going up against debt collection law firms who do this work day in and day out. If you hate dealing with debt collectors over the phone, imagine the difficulty of dealing with debt collectors, who are lawyers, in person and in setting completely foreign to you . Often times, the debt collection lawyers are successful in finding every technicality of the legal system to trip you up and using intimidating tactics to get to you to cave in and pay up.

Our law firm handles the defense of debt collection lawsuits day in and day out. Not to mention, Attorney Daniel DeWoskin is a trial attorney, which means he knows how to navigate the court room and has no hesitations in defending lawsuits all the way through trial. Having an experienced attorney to defend you in this matter also separates you from having to directly deal with the debt collectors or their lawyers.

I don’t have any money or a job, so why should I care if a default judgment is entered against me?

Even if you do not have any assets that can be seized right now, debt collectors often wait until you do get a job or assets to attempt to collect on that judgment, even many years later. Not to mention, having a judgment being reported on your credit report can hurt your attempts to get a job or obtain credit for a house or a car.

Shouldnt I just file bankruptcy?

Filing bankruptcy can be a seriously devastating financial event. While there are some situations where bankruptcy is clearly the best choice, the majority of people facing third party debt collection lawsuits are not good candidates for bankruptcy. Why cause yourself further stress and hardship of bankruptcy?

I have received letters from the debt collector’s lawyers offering settlement plans. Shouldn’t I just call them and try to work something out?

Contacting them to work something out does not change the fact that a lawsuit has been filed against you and in most cases, you must file an Answer to that lawsuit within 30 days of being served. It is not likely that they will simply dismiss the lawsuit because you say you are willing to make payment arrangements.

Remember, the debt collector’s lawyers usually run debt collection firms of their own and it is likely that you will speak with a debt collector when you call them. Regardless, they are going to look out for the best interest of themselves and their client – not you. In fact, they may record your phone calls and use any statements you make, whether on the phone, in writing or email, against you in the pending lawsuit.

What if I am able to work something out with them? Isnt that a good thing?

If the debt is old and past the statue of limitations, making payments toward on an old debt or making renewed agreements to pay it can lengthen the amount of time you can be sued on the debt and lengthen the amount of time the derogatory mark can be reported on your credit report. Not to mention, it usually does not stop subsequent debt collectors from buying the remaining balance and suing you later.

I’ve heard about settling debts for pennies on the dollar with these people. Is that true?

Some people are able to settle their debts with third party debt collectors for a discount off of the total amount but it is usually with many strings attached. If you negotiate a settlement while a lawsuit is pending against you, the debt collector’s lawyer may have you sign a settlement agreement and a consent judgment. This basically means you are voluntarily accepting a judgment against you which does resolve the lawsuit but if you default on the new payment agreement, the judgment against you becomes enforceable. Since they already have a judgment, they can move to garnish wages and bank accounts.

While only advise from a competent tax professional can determine your individual circumstances, there is a chance that you will receive a 1099-C in the mail for the “forgiven” amount of the debt. This means you may be liable for paying income taxes on the amount of the debt that was forgiven.

What if I can’t afford an attorney?

Most of our clients find that our fees are a fraction of what they are being sued for. Once you add the debt your being sued for, the court costs, and any interest that they might be able to charge you after judgment, the affordability becomes clear. You have much more to lose by not hiring yourself a competent attorney to defend you in your debt collection lawsuit.

What if I don’t think the debt is mine? Can’t I just ignore it?

You definitely don’t want to ignore a lawsuit because you aren’t sure if the debt is yours. Unfortunately, being properly served with the suit and choosing not to answer the suit can cause you serious problems down the road. Even if you think the debt is not yours, DONT ignore it!

The Basics of a Third Party Junk Debt Collection Lawsuit

Sun, 24 Jul 2011 02:58:00 GMT

What is a “third party” debt collection lawsuit?

These lawsuits are typically filed by the thousands by a debt buyer who possesses typically little or no documentation of the underlying debt.

Trouble Continues for Credit Card Collection Actions

Fri, 22 Jul 2011 14:37:00 GMT

This is good news. It should also not be considered a deviation from the traditional analysis that most courts are to routinely apply to cases that come before them. To the misfortune of many unsuspecting consumers, many courts are quick to dispense with concerns of hearsay, unreliable evidence, bogus affidavits, “robo-signers,” or a myriad of other problematic issues with credit cases that are presented to the courts.

In other actions, such as personal injury cases or even other types of contract or account cases, the courts adhere to rigorous rules of evidence and law. Somehow, the overwhelming number of credit collection cases, or perhaps the fact that we all take for granted constantly changing terms, has lulled many courts into rubber-stamping judgments and overlooking traditional burdens of proof.

The “trouble” referenced in this article for credit card collection actions are the functional operation of law. Incidentally, consumers should be aware that despite this positive news, they are still severely outgunned by the opposition. The law can provide you with far less protection than your own vigilance and sense of fiscal and credit responsibility will provide.

Editorials | Obama blinked and a consumer champion lost | Seattle Times Newspaper

Tue, 19 Jul 2011 17:41:00 GMT

Editorials | Obama blinked and a consumer champion lost | Seattle Times Newspaper .

Take note: If you are designated as the official responsible for watching out for consumer interests, doing your job too well may result in you being shown the door. Elizabeth Warren was a warrior for consumer rights and reform of predatory practices. Many of these practices resulted in catastrophic financial downfall for…well…everyone.

However, many folks with great political influence recovered to a large extent. This left them terrified that the further anything was regulated from the status quo, the more they stand to lose. So, it became clear that Elizabeth Warren’s efforts to protect consumers were threatening, so threatening that any future appointment was unfathomable to many Republicans on Capitol Hill.

This is not to say that Richard Cordray, who was selected by President Obama to head the Consumer Financial Protection Bureau, will not spearhead initiatives geared toward the same or similar reform as that eyed by Elizabeth Warren. Rather, it is to lament that such a staunch advocate of the people was so readily sacrificed before many her well-considered initiatives had much chance to take flight.

We can all hope that there are no wolves watching over the hen-house, so to speak, but as always, the consumer’s number one line of defense is the consumer’s own vigilance. Time will tell how effective the Consumer Financial Protection Bureau will ultimately be.

Caller ID and Spoofing | FCC.gov

Thu, 14 Jul 2011 19:27:00 GMT

Caller ID and Spoofing | FCC.gov .

Finally, we have some small teeth in a law to discourage clear, unambiguous fraud. This type of activity is not just immoral, but clearly in violation of federal (and perhaps many states’ law). As always, any consumer’s best protection against fraudulent activity is the consumer’s own vigilance and skepticism, not the government. However, it is good when those who collect taxes seek to protect the availability of those sources of funds from criminals who are finding ever more clever ways to steal identities, account information, and cold hard cash without ever leaving the comfort of their telephones.

This “spoofing” can catch even savvy consumers off-guard. By this, I mean that even if you are paying attention, you may not even to believe what you see with your own eyes. One of the best tactics to prevent being a victim, as is the case with any collection call or other serious consumer matter, is to ask for company names, first and last names of the callers, and call-back numbers so that you can return the call when it is convenient (and verify that the number rings to where it should). Yes, I know that many court clerks will refuse to give a first and last name, but it will give the consumer the opportunity to trust, or not trust, that sixth sense about these things once such requests are made.

If you believe you have been victimized by caller ID spoofing, or if you are being wrongfully pursued by a debt collector, please call (404) 987-0026 to discuss possible legal actions.

A. Day – TRIAL OF DUI CASE WITH NO BREATH TEST OR BAC RESULTS

Wed, 13 Jul 2011 12:30:00 GMT

Recently, I tried this case in Dekalb County State Court. My client, (renamed to protect her privacy as “A. Day”) was a very professional young woman who was arrested at 3:00 a.m. on New Year’s Eve. Ms. Day was pulled over for speeding on Peachtree just where the speed limits change suddenly from 35 to 45. There were few cars on the road at the time, and Ms. Day slowed down, then safely pulled off of Peachtree and into a well lit parking lot. All of the maneuvers she took in pulling her car over were conducted safely, meaning that she signaled and did not weave or demonstrate any unsafe driving clues.

The officer, a DUI task force officer, was polite and professional throughout the encounter. He asked Ms. Day how much alcohol she had consumed that night, and then put her through the battery of standardized field sobriety tests, or SFSTs. The first of these tests was the HGN, a test which the police dash cam cannot display what the officer sees or is looking for. The second test was the walk and turn, and the third test was the one leg stand.

Throughout the stop, the video shows Ms. Day to have done what any layperson would call a very good job in these SFSTs. She does not appear to be at all intoxicated. She is responsive, cooperative, and her demeanor does not exhibit any typical signs of intoxication, such as slurred speech, confusion, or a loss of coordination. However, keeping in mind that the officer is a specially trained task force officer, he observed what he determined were clues indicating intoxication, even if to the untrained eye Ms. Day would have passed all of the tests.

In fact, the officer didn’t just see a few clues, he saw all of them. Ms. Day was arrested and subsequently refused to submit to an breathalyzer test, meaning that she might very well lose her drivers license for a full year without any work or limited driving permit. Despite the very positive video, Ms. Day was given no alternative to a DUI plea and chose to assert her right to a jury trial.

At trial, the officer was just as professional as he was at the scene of the arrest. He testified to his extensive experience and training. The officer gave a detailed account of every step of the stop and why and how he came to make the decisions he made. The difficulty in this case was that where many officers will go out on a limb and try to “advocate” for the State to get a conviction, leaving them open to a forceful cross-examination, this particular officer told the facts for exactly what they were.

The purpose of a jury trial is for the factfinder, the jury, to determine what the facts are, or what happened. In this case, the jury was able to see for themselves the stop and arrest, as well as all the tests and statements that transpired. They saw this quite clearly. And yet my client and I shared a fear that the jury would trade its own sense of reason and perception for that of a well-qualified and well-trained professional officer.

Because the officer did perform the tests in accordance with his training and the standards set forth by the National Highway Transportation and Safety Authority, or NHTSA, I was unable to credibly suggest much more than that the conclusions he drew did not jibe with what we all know and recognize to be signs of intoxication. In essence, it left me with little to demonstrate that his conclusions were wrong.

Instead of taking this approach, we put forth our own expert who was to question the very validity of the field sobriety evaluations. Our expert was also very well-trained and had a wealth of experience as a former DUI task force officer himself, but the very capable prosecutor quickly dispatched with our expert’s ability to speak to much of the scientific data which he was attempting to scrutinize before the jury. Ultimately, the best function he served for us was to provide a buffer between the jury hearing the arresting officer’s testimony and the time at which they were to deliberate.

After our expert was cross-examined, we rested our case. I then stood up for my closing argument, in which I implored the jury not to leave their own sense of reason at the door of the courthouse when they came in. I discussed reasonable doubt, explaining that this was a very important decision and that they should be able to leave knowing that they did justice in their unanimous verdict. I had to address Ms. Day’s decision to decline the breath test, as that refusal could be taken by them as circumstantial evidence pointing to her guilt of being under the influence of alcohol to the extent she was a less safe driver.

The prosecutor stood up to give his closing argument after mine. He pulled out all the stops. He revisited every bit of the criteria for which the officer stated his decision to arrest for DUI was made. He painstakingly covered every single provision of the law for which he asserted Ms. Day was proven to have violated. After the judge read the law to the jury and charged them, they exited the courtroom and we anxiously awaited their decision.

As is often the case, my client braced herself for the worst case scenario. It was now after 6:15 p.m. and we were waiting on the jury to come back with a decision. I had a fear that they might make a rash decision, or that jurors who might be inclined to hold back from convicting due to reasonable doubt would give in so that they did not have to return to court for further deliberation the next day.

Shortly after my nerves began to get the best of me, the jury had a decision. We all went back into the courtroom and the foreman read the decision…not guilty as to DUI. We had opted to admit to the speeding charge in opening argument and never once questioned whether or not she was actually speeding that evening. The verdict was read so suddenly that Ms. Day did not even fully understand at that moment that she was acquitted, and she asked me what the verdict meant. I whispered to her that we had won, and everyone in the room must have sensed her relief.

Shouldn’t I just call the law office who is suing me?

Sun, 03 Jul 2011 15:51:00 GMT

Remember, the law office that has filed suit on behalf of their client against you is looking out for their client’s best interest, not yours.

Why should I hire a lawyer if I can work something out with them myself?

Sometimes the opposing party’s lawyer will negotiate a settlement on behalf of their client and “settle” the debt knocking off a percentage of what you may owe. Sounds good, right? Here are some of the possible pitfalls:

The Car Accident Insurance Claim “Formula”

Sun, 03 Jul 2011 01:52:00 GMT

Although car wrecks are very common, no two cases are alike. Unfortunately, many people who wield a great deal of influence over these situations and the ultimate outcomes fail to appreciate the fact that no two cases are alike. Insurance companies develop plans and policies designed to categorize and “value” damages. These policies often dictate what adjusters will then offer as compensation for injuries of people who were not at fault in a car wreck. The criteria that may figure into an insurance company’s formula may include the amount of property damage, speed of vehicles involved, available witnesses, statements, and a variety of other information.

The problem with this system that insurance companies use to evaluate damages is that it fails to address the actual damages that were caused by the negligent driver. Despite the fact that the property damage may be minimal, a person who was driving his or her car responsibly may have been seriously hurt. Throughout the years, automobiles have been designed and improved upon in such a manner so that they better protect the occupants. The human body has not been improved upon in a similar manner so that it can withstand the impact that two extremely heavy objects have when they collide.

Surprisingly, many firms that represent people injured in automobile accidents and collisions categorize their clients in the same fashion as the insurance companies. Injury claims are not based upon the actual impact that they have had on the clients, but instead upon the criteria by which the insurance companies may be willing to make payments. This situation results in claims being undervalued and justice not being achieved for the injured parties.

Overcoming the Pitfalls of a Defending a DUI Case

Sun, 03 Jul 2011 01:41:00 GMT

As every driver knows, DUI is a serious offense that virtually any driver could at some point be arrested for. This means that young and old, people of any race or class, drinkers and non-drinkers alike, can be arrested by an officer for DUI. The reason for this is that once an officer pulls a driver over, the driver is at the mercy of the officer’s personal observations and opinions, which may even be enough to later secure a conviction for DUI before a judge and/or jury. Thus, the biases or misjudgments of an officer, the failure to properly document and retain all the pertinent information, and perhaps a lack of adequate training can all contribute to innocent persons being wrongfully charged or convicted.

In many ways, defending a DUI case is more challenging than trying a murder case. The consequences in the event of a conviction are certainly much more severe, as they should be, in a murder case. However, the fact remains that the chief eye-witness in a murder case is rarely ever a police officer. In contrast, in almost every single DUI case, the star witness for the prosecution will be the esteemed patrol officer or task force officer who takes the stand in his uniform and testifies that he personally observed the defendant violate any number of traffic laws, then observed the defendant act or perform tests in such a manner that showed him to be a less safe driver, or a driver who was under the influence of alcohol and/or drugs.

The officer will testify that he is well trained has years of experience detecting, investigating, and arresting individuals just like the defendant. All of this can confuse a jury who must never lose sight of the fact that for a conviction, the State must prove the defendant guilty beyond a reasonable doubt. It can often feel like after the police officer testifies, the burden is on the defendant to prove his innocence, a sentiment deplored by our country’s founding fathers. The State is often essentially setting the jury up to believe that to acquit the defendant, they as jurors must be calling the officer a liar, and after all, these officers are simply out to protect and serve our communities and keep our roads safe.

Another noteworthy complication in DUI cases is the prevalence of the damage caused by intoxicated drivers. At any given time, there is a story in the news about an innocent bystander who was callously killed by an intoxicated driver. These stories make it more difficult to keep juries in the frame of mind that it is not illegal to consume any amount of alcohol and get behind the wheel. They have effectively assisted legislatures across the country to pass laws making it easier to secure convictions in DUI cases and to enhance the sentencing for violations.

Even the best trained and most ethical officers can make mistakes. Furthermore, the standards and criteria by which officers evaluate drivers can be compromised by junk science, misapplication of scientific principles, or a host of other factors. The research and technical issues involved in the evidence and procedure surrounding the area of DUI require anyone charged with this offense to immediately seek knowledgeable counsel.

Encounters with pro se Litigants

Wed, 01 Jun 2011 00:08:00 GMT

Encounters with pro se litigants
by Daniel DeWoskin
June 1st, 2011

We have all heard that a lawyer who represents himself has a fool for a client. Many of us have had occasion to walk into a courtroom, be it in magistrate, state, or even superior court, only to find that the courtroom is packed with pro se parties waiting to have their matters adjudicated. Watching inexperienced people handle their legal matters can at times be entertaining and at other times extremely frustrating. We observe these parties fumbling with rules regarding cross-examination or the admission of evidence. It is almost always apparent that these people are uncomfortable, intimidated, and unaware of how much they do not know about prosecuting or defending a legal action. Out of necessity, desperation, or perhaps stubbornness, many people still choose to represent themselves in court.

Is it hubris that causes these people, these “fools,” to represent themselves? The fact is that many parties are representing themselves because they could neither find, nor afford, counsel in a particular matter. These situations can be simply tragic. Many times, these persons are out-maneuvered by an attorney because they fail to acknowledge procedure or to understand the application of law to a particular issue. These people may lose their cases solely because their temperament or demeanor has overshadowed the presentation of evidence in their cases. There is not much of a fix to this problem, as the courts cannot take it upon themselves to advise pro se parties lest they cease to be impartial to some extent.

As attorneys, it can be like watching a train wreck. And yet, even watching the least capable pro se parties, I have to give them credit for having the nerve to walk into court, to stand before a group of strangers, and to engage in public speaking for which the outcome may have dire consequences. It is refreshing and impressive when some of these individuals have taken the time to conduct research into their legal issues and patiently wait for certain cues from the court as they advocate for their position. We have all seen these cues ignored at times by the most experienced and knowledgeable attorneys.

I myself have dealt with pro se parties and can say that I have always found it to be troublesome. When dealing with a pro se party, I am always cautious to avoid ever giving legal advice to the other party. I have a duty to my client and my responsibility to zealously represent his or her interests cannot be compromised. I also have a duty to deal fairly and honestly with my opponent. In these situations, it can be challenging to set the right tone so that I do not inadvertently escalate any hostility that may already be present in the litigation. Even by making very deliberate choices as to how I speak with my opponent can backfire, causing more work and headache for everyone involved, including the court.

Any lawyer who has dealt with pro se parties is likely to say that there is some measure of comfort when dealing with represented parties. Pro se parties are always personally involved in the matter at hand and can often have difficulty taking a step back so that they might see their opponents’ arguments for what they are. If these people were not personally involved, they would not deem the matter worth their time or attention in the first place. When both parties are represented by experienced and professional counsel, knowledge of law and courtesy generally help govern the course of litigation. This is quite the contrast between the emotion and intimidation that can be in play in pro se litigation.

There are also times where we as attorneys sit down in a crowded court and have the person seated beside us turn and ask, “Are you an attorney?” This usually means that we are about to be asked if we can answer a quick question that is never quick and never isolated. When I find myself in this position, I usually resort to recommending that the person ask for a continuance and seek counsel, but I am always professional and polite so that I do not seem to be turning my back on them. As opposed to explaining that I need to be paid for my services, which is true, I have found that people respond better when I explain that without a thorough review of the particular facts of both parties and their assertions, I am not able to provide them with a reliable answer.

It is extremely important in our justice system for people to have access to the courts, even when they cannot afford counsel. Our judges do a good job demonstrating patience and appreciation for the rights of pro se parties, and yet I am continually perplexed by how many people will try to handle a complex litigation matter without doing any homework. While I doubt these same people would handle their own dental work, sometimes I just have to wonder.

I am disappointed when I see pro se parties get intimidated by attorneys in court. There are those rare moments when one of these parties, outgunned and out of their element, has done the legwork and prevails in court. If you have never seen this in action, it is something to behold. Recently, I spoke to a young woman who succeeded in defending herself in a civil action. It was rather remarkable. I was impressed by the quality of her research and preparation, and she was impressed by how ignorant and unprepared her attorney counterpart was.

I suppose the takeaway from this encounter was that we should never take our opponents for granted. So, while a lawyer who represents himself has a fool for a client, there is no substitute for preparation, knowledge of the law and facts, and humility in a court of law. As lawyers, we should try to find the balance between stressing the value of qualified counsel and understanding why people may still choose to represent themselves. Instead of dismissing all these people as foolhardy, perhaps we should first caution them, then suggest where they might find the resources to empower them in their decision. In the end, if they do follow through with the research, it should demonstrate that what we do is unique, precise, and specialized.

As lawyers, we are aware of the dangers of pro se litigation. We know the troubles that lurk in handling matters without knowing the facts, the law, and the applicable procedure. For those who do not know these dangers, we must act as stewards. We may benefit these people and the system in general without giving out free legal advice, but also without treating what we do as beyond the reach of a dedicated individual with something to prove. Once again, many of these individuals do not have a choice, and nobody in our community benefits from a system that breeds intimidation and contempt.

Article appears in the DeKalb Bar Association Newsletter

See Original Articl

I Need a Vacation, But It’s Far Too Much Work

Fri, 04 Feb 2011 23:05:00 GMT

I Need a Vacation, But It’s Far Too Much Work
by Dan DeWoskin
February 4th, 2011

As attorneys, we have one of the most difficult jobs to simply duck out for a spontaneous three-day weekend getaway. Notice that we aren’t even allowed to call it a vacation. Such time away from one’s legal practice is referred to as a “leave of absence,” which immediately has a negative connotation; a feeling of abandoning the courts, the clients, the job.

Uniform Superior Court Rule 16.1 ensures that we will promptly put together the multitude of letters and notices to clerks, opposing counsel, and judges to appropriately inform everyone of our leave of absence in plenty of time for them to object. Fortunately, most of us do not find ourselves in the position of having to deal with unreasonable objections. It is still quite an ordeal just to know that you will not find yourself paying airlines’ exorbitant flight change fees or forfeiting some vacation deposit because you did not realize how a case that has been ongoing for the past five years suddenly has to get tried during the week you intended to test out a new system at the tables in Vegas.

Regardless of whether or not we are ultimately permitted our leave, it is a monumental pain in the rear end, at least as far as I am concerned. I understand why the rules are as they are, but I am not the person who can plan out the vacation schedule for the entire year in advance. Sure, I don’t worry so much about the Jewish holidays, but how do I look at a calendar on January 1 and decide that June 22 would be a good date for a short getaway with my wife?

Actually, if you ask my wife, she’ll tell you I’m terrible about taking vacations to begin with and that I would be just as happy to sit around my house in my underwear and watch movies. I imagine this part of the process gets easier to plan when kids are in school and the school schedule begins to dictate the best times to spend money in Orlando.

I am always surprised when I receive another attorney’s leave notice and it has eight or nine different periods that they intend to take off. The capacity that these individuals have for personal planning is nothing short of astonishing. I can plan when it comes to litigation, discovery, and general practice management. When it comes to my personal life, I’ll figure out what I’m doing on Friday night sometime late Friday afternoon (most likely by asking my wife on my way home from work). And as for continuing education, I generally attend far more than is required, but I don’t plan to go to them much more than a month out.

January presented all of us with an unusual gift. Our unexpected snow and ice storm that shut everything down brought with it a mandatory vacation at home where I played master of ceremonies to my two-and-a-half-year-old son and my 10-month-old daughter. We colored, we read stories, we sang and danced, and we had one hell of a good time day after day. I ate far too much and grilled more red meat than I would want my doctor to know about. When the sun went down, my wife and I opened a bottle of wine and really just enjoyed not having to be anywhere the next day, or even being able to get there if there was someplace we had to be. Okay, maybe I wasn’t really waiting for the sun to go down and maybe it was more than one bottle of wine, but you get the point.

I grew a little more apprehensive as the week progressed, not so much out of stir craziness as out of the sense that others were going back to work despite the hazardous road conditions. In the end, I survived my uneasiness and really took advantage of the break. This was a week when no court would call my office and ask where I was or when it should expect me to pop in. No conflict letters needed. It was like the world stopped for a few days and it was quite refreshing.

I monitored all the listserves I’m privy to in order that I might see and hear if people were managing to get out and if I might safely have made it to my office so as not to lose valuable work time. Still, as I started to get dressed to go to work on Thursday or Friday, I thought about how I wouldn’t dare put my kids in the carseat to take them for a drive, so it did not make much sense for me to take an unnecessary risk. I also thought about how angry I would be if I bent one of my axles trying to go to the office to open mail that had not even come that week. Where was I in a hurry to go?

Although I have the tendency for being a workaholic, I am very good about devoting time for my family. I’m tethered to my phone and email and I don’t sleep soundly for the perpetual thoughts about each of my cases. I don’t foresee this condition changing as long as I continue to be a trial attorney. In February, I will take a trip with my wife, our first vacation in over two years. We take a day off here and there, but we certainly haven’t gone anywhere or done what most people would call a real vacation in quite some time.

When we planned the trip over six months ago, I got all my leave notices out for the applicable dates. I made sure to continue to file these notices as new cases came in, and then we have our snowstorm. So, as any experienced lawyer would predict, every court appearance that was scheduled for the week we had the storm gets shifted and rescheduled to one of the five days that I have planned to be somewhere with my wife, someplace with beautiful weather and umbrellas in all the drinks.

I have been managing to reschedule these appearances, but this brings me back to the original point. Truly, one of the most significant challenges we face as attorneys is taking some leisure time without the paranoia that the world will fall apart if we are out of touch with the office for a few days.

I know the world will not collapse in on itself if I duck out for a break (provided I have filed leaves, have someone to manage my clients, and made provisions for colleagues to stand in if somehow something fell through the cracks). Professionally speaking, I am far less important to the world than I give myself credit for. That being said, I’m kidding myself if I think that the first two days of my vacation will be free of my unreasonable panic. Luckily, I will have scarce access to email and phones, and my wife will likely be pushing fruity umbrella drinks and activities such that I am thoroughly distracted.

Taking some time away from work is a giant hassle, but it is necessary. We lead stressful lives and have to decompress for our health and sanity. I can appreciate that and I’ll jump through all the hoops to make it happen. I’ll deal with the headaches on the back end when I return, the countless phone calls, the thousands of emails to review, and the stress of catching up. In the end, it just goes with the territory that for attorneys far more work is required to go on vacation than to simply not go on vacation.

Article appears in the DeKalb Bar Association Newsletter

See Original Article

Weigh in on This

Wed, 05 Jan 2011 00:01:00 GMT

Weigh in on This
by Dan DeWoskin

My mother was in town this week from Florida. Unlike my wife and me, my mother is drawn to opinion shows that run on news networks. Notice that I did not say news shows that run on opinion networks. I will try to compose my thoughts in this article without leaning towards the left or the right, if you will. It simply strikes me as strange that given how little time I have to myself these days, others with equally scarce time spend it listening nightly to the opinions that others have on political or social issues.

As an attorney, like many of you, I have a compelling interest in the opinions of judges, juries, clients, and others in my community on many political, social, and economic topics. I am fascinated by the opinions held by these people as well as the underlying reasons for their opinions. Not only do I study and internalize these opinions to better understand my environment and my awareness of those around me, but I maintain an open mind as I listen and can even change my mind on a particular subject.

However, my mother, and millions of other people on a daily basis, tunes in at night to talking heads to hear what their take is on how the president is doing, or what some poll tells us about upcoming elections. Being a good host, I did not interfere with what she wanted to watch, but did ask what it was she liked so much about the particular shows she turned on. After all, she conceded that there is little new information that she gleaned from the shows after reading the paper and watching national news, both of which she does often. Thus, the only thing she gets out of the shows is the opinion of the shows’ hosts and perhaps that of a former politician or “expert.”

As I stated earlier, I am not making a political statement in this article, or certainly that is not my goal. Who is Sean Hannity, Bill O’Reilly, or Rachel Maddow? Depending on who the audience is, they are either idiots or charismatic patriots speaking up on current events. Each night, they all must fill their time slots with attention-grabbing topics and commentary. This cannot be easy, especially if their topic fails to appeal to the vast majority of their audiences.

I personally watch “The Daily Show” with Jon Stewart and sometimes “The Colbert Report,” depending on how early I have to wake up the next day. What I see as a difference between these types of shows and Nancy Grace’s program, or Chris Matthews’ program, is that they are comedic in their presentation. I better understand the entertainment value of these programs than those where I am supposed to be stunned by political incompetence or how some elected official insulted her base with an offhand remark. I am not watching news and that is not what I expect to get from Jon Stewart or Stephen Colbert.

Getting back to my mother’s visit, after watching one of these opinion shows, I felt like I had lost an hour of my life. I won’t get it back. Sure, the commentator had some good points and some that were not so good. In all honesty, I was probably more entertained when I was in disagreement with a point than in agreement. Still, what strikes me as odd about all these shows is how there is so little that viewers can take away. Am I missing something?

Everyone has an opinion. When I am before a jury, or a judge, or even dealing with opposing counsel and parties in my cases, I have to be mindful, receptive, and understanding of all the opinions. I have to be respectful of these opinions or I do a disservice to myself and my clients. When I leave work and find myself at home, I try to fill my time with constructive activities that enlighten or amuse me. I am not trying to be judgmental about people who watch these shows because I personally find more entertainment in watching reruns of situation comedies I have seen many times before. So, I write this article not with some high-brow elitist attitude towards the millions of folks tuning in to opinion shows, but a curiosity as to what is so captivating about them.

Rachel Maddow is a Rhodes Scholar, I hear. Glenn Beck loves his country and is routinely moved to tears when thinking about what the current administration is doing to it. Keith Olberman is angry about everything and how stupid politicians can be. Why do we care? As passionate as I may be about what they are talking about, at the end of each of these shows, I have never felt like I have done much more than kill an hour or two. And don’t even get me started on reality TV. Then again, that’s just my opinion.

Article appears in the DeKalb Bar Association Newsletter

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Taking the Time to Prioritize

Wed, 01 Dec 2010 00:14:00 GMT

Taking the Time to Prioritize
by Dan DeWoskin
December 1st, 2010

I know I am not the first to say it, but I don’t know where this year went. There are still so many books I intended to read this year that I have not yet had the time to read, so many tasks I intended to address around the house, and so many New Year’s Resolutions that I failed to pay any attention to whatsoever as of Jan. 2, 2010. Well, I suppose the year is not yet over.

Actually, I have spent much of this year focusing on my priorities and I am pleased that I rarely find myself regretting my choices. I have two small children whom I rush home from work to see each day. Like most lawyers I know, I have far too many cases and clients for whom the calls never cease and there is never a moment when there is nothing to be done. However, I have worked very hard to increase my efficiency at the office so that I can devote my time at home to those who need it most.

I have not always been successful and find myself working at unusual hours and even on weekends. On the whole, I have spent a lot of quality time with my wife and kids this year and I have difficulty imagining what it would feel like if I had missed some of those moments because I was at my desk. Collaborating with other lawyers on many of my cases has reduced my stress to a limited extent and permitted me to delegate some of the workload. By far, the greatest factor freeing up time for me to spend at home and with my family was simply my decision to do so.

In years past I indulged myself with delusions that as a lawyer, it was only natural that I would have little time for myself and that my work was important, somehow meaning it should always come first. In 2010, I got a handle on this nonsense. I still put in the hours, and in fact this year I even had to travel to Ohio, New Jersey, California, and Illinois for depositions and work with expert witnesses. Regardless of where I was, at bedtime at my house, I would call my house and read my son his favorite bedtime story. I had written it down on a notebook I carry with me with other extraneous information, but like any parent of a two-year-old, I have all but memorized this book I have been reading every night for the past year or so.

As lawyers, many of us have extraordinarily stressful and time-consuming jobs. Our clients count on us to get it right and to be thorough. As important as it is for me to play with my kids and take my wife out to dinner, I cannot use that as excuse for why I am unprepared at trial. What I have learned, and I hope I have learned early enough in my career, is that if I fail to address my priorities in a manner that is consistent with my values, burnout and despair is the likely reward for my efforts.

I intend to continue to collaborate with other lawyers in 2011. I expect that I will have to continue to travel as well, and I have more cases that will likely reach trial in 2011 than I did this year. With the help of my family, I also expect that I will still resist the urge to ever consider time spent with my family as a “diversion.” I love practicing law and I am honored of the contribution that I can make to my clients and their own families. I also treasure the moments I get to spend goofing around with kids. Soon enough, my kids will have many things that they would rather pay attention to than spending time with me. I have no intention of letting these fleeting moments in which I am their favorite playmate slip away.

I’d better cram in those books on my reading list over the holidays or learn to read while brushing my teeth. Otherwise, I may be tackling the same reading list well into my retirement.

Article appears in the DeKalb Bar Association Newsletter

See Original Article

Attorneys General (in general) – A Job Description

Mon, 01 Nov 2010 00:15:00 GMT

The Practice Corner: Attorneys General (in general) – A Job Description
by Daniel DeWoskin
November 1, 2010

Today, like many DeKalb Bar Association members, I observed a debate between Ken Hodges and Sam Olens, both of whom aspire to be the next Georgia Attorney General. Amidst the bickering over each candidate’s resume and job performance were the undertones of an intellectual disagreement as to whether or not the position of attorney general is better categorized as that of a prosecutor or a politician. Of all the important topics briefly touched upon by the two candidates during the brief and insightful debate, I found this schism regarding the most basic job description particularly compelling.

For the most part, both candidates were deferential to those individuals who held the seat they now seek in previous years. Where there was criticism of a predecessor, it was based upon a difference of political ideology, or so it would appear to me as the observer. The election for attorney general is, in fact, a partisan election, so it should not be surprising that these criticisms exist and perhaps largely along party lines. However, in analyzing the merit of Mr. Hodges’ contention that his experience as a district attorney better qualifies him for the position than Mr. Olens’ experience as a county commissioner, one cannot help but acknowledge that an attorney general must follow the law without regard to personal political philosophy. He cannot and should not enforce only those laws he feels are worthwhile. Mr. Olens’ point is also well taken that unconstitutional laws should be challenged.

Yet, as an observer and undecided voter, this question in and of itself did not clear things up for me today. Mr. Olens discussed challenging unconstitutional laws such as the new federal healthcare law. I certainly did not get the impression that he was referring to laws such as the Arizona law mandating that state officers take affirmative steps toward enforcing immigration laws. Thus, if my personal political philosophy has me more concerned that Arizona officers are legally obligated to make law enforcement judgments based upon racial profiling than I am about the new federal healthcare laws, I suppose I can determine which candidate deserves my vote. It’s just not that easy.

I will admit that I am bothered by the current political climate that seems to push voters to one extreme or the other, but I want to vote for the candidate who is a) best qualified for the job and b) whom I most identify with as someone who shares my values. Often, I find that these two criteria can be in direct conflict. The fact that a candidate’s prior experience may better relate to the job he seeks than his opponent is important, but it cannot justify my vote even if the candidate’s values or understanding of the role of government contradicts my own. There are Supreme Court justices whose decisions I do not often agree with, and yet I rarely if ever find myself questioning their qualifications for the job. Thankfully, I do not need to add an asterisk or footnote regarding Harriet Miers. My point is that just because a candidate fails to share my views, my correct and logical views, that does not mean the candidate is unqualified.

As for Mr. Hodges and Mr. Olens, I did not find either of them to be particularly extreme in their politics during this particular debate. I think they may have more in common in their views and goals than even they would like to admit. Both support the death penalty. Both candidates appreciate the importance of exposing and eradicating government corruption and violations of public integrity. Both candidates have similar opinions regarding the most serious challenges for the next attorney general and the priorities that should be set. Not surprisingly, the area that the two men most disagree on is which man has a background that better qualifies him for the position.

Regardless of their views, this is not a situation where the candidates are interchangeable. Each of these men will conduct himself differently as attorney general than his opponent should he win the election. I was bothered by some of the petty squabbling that took place during the debate, but satisfied to find that both these men had integrity, pride in their respective elected positions, and a genuine interest in serving their community. I am not oblivious to the various television ads, editorials, and other articles regarding these men. This election, like most others throughout this state and the rest of the country, or so it seems, abounds in criticism, accusations of scandal, and allegations of corruption. On the whole, such negativity obscures a voter’s ability to determine who will best represent the community’s interests.

The attorney general is the state’s lawyer. In many respects, the position is one that is prosecutorial in nature. However, given the limited resources the office has and the limitless demands for its attention, politics dictate the direction of those resources to a monumental extent. Both men are eager to be elected and there should be little question that both are capable of serving Georgia honorably should they win the seat. For myself, as distasteful as I may find it to make any election decisions simply based upon party ideology, I cannot argue with how easy it can render more difficult decisions at the polls.

Article appears in the DeKalb Bar Association Newsletter

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The Cost of Jury Service to the Juror

Tue, 04 May 2010 00:16:00 GMT

The Cost of Jury Service to the Juror
by Daniel DeWoskin
May 4, 2010

CNN recently ran a story on how the economy is having a severe impact on many of those who are called to serve as jurors (www.cnn.com/2010/CRIME/03/17/jury.duty.recession/index.html?hpt=C1). In the best of economic times, even those among us who can best afford to sacrifice time at work to engage in our noble civic duties might cringe at the summonses in our mailboxes. However, what this article makes clear is that today, perhaps more so than ever before, the toll taken by this sacrifice on the jurors can be devastating.

In every trial I have participated in, I have encountered jurors who are reluctant to serve because of the hardship their service would wreak on themselves, their families, and their jobs. Some of these hardships are very real, while many others may only appear to be severe to the individuals proclaiming them. In reality the juror who is unable to locate a babysitter or who cannot afford to pay a babysitter is in the same tight spot as that of the juror who is getting married the next day. Our distinguished judges each have their own preferred methods of evaluating the hardships and needs of jurors, and determining which of those claims of hardship rise to the level for which jury service may be excused.

Jury duty is never convenient. If I am wrong in saying so, it is because I have not yet met a juror, be it a CEO of a Fortune 500 company or a line cook, who does not value her time such that her absence from her daily responsibilities would not be catastrophic for the universe. Although I am making light of this observation, I have tremendous respect for those who are called to serve as jurors and serve faithfully. At the end of the day, justice depends on the jury’s careful, attentive deliberation. I do not intend to make light of the sacrifice a jury gives to hear cases, from the most serious to what some may consider the most trivial.

Experience has also taught me to be just as wary of the person who anxiously wants to be on a jury as those who shout out that jury service is a waste of time. The experience of jury service should ideally leave each juror with the sense that they had a direct and real impact on the outcome of a case, and that justice was accomplished with their verdict. It is nothing short of amazing that our justice system functions by the cooperative and responsible members of our community who report, however reluctantly, to serve as jurors.

The current state of the economy does cause concern that the service required of many of our jurors amounts to more than a missed budget meeting or sales call, and that jury service could ultimately make it difficult for some to keep lights on and rent paid. Yet, if most of us were to scour our caseload and ask ourselves which case file is not important enough to ask for a jury’s consideration, we would not likely find such a case.

Like any trial lawyer, I meet with many people about potential representation. I turn away far more cases than I take on, so that my time and my practice are managed effectively. My decisions may be based upon economic factors, the principles of my practice philosophy, or concerns about the sort of dynamic that exists between myself and the potential client. What I am left with is a stack of files, each of which is extremely important to the client, and thus is important to me. In years past I have made the mistake of taking on cases for which I was ambivalent about either the client or the case. I applied myself in those cases as I would any other matter, but the process was exhausting and the cost not worth what I took from the experience.

Jury trials are not the forum for ambivalence. Ambivalence on the part of the advocate, the judge, and the jurors is an impediment to justice and a disservice to us all. Given the economic woes of many who now serve as jurors, any ambivalence is downright insulting. Among the many obligations we have in our representation is to convey the vital need that jury service contributes to our community. We do not just do this by thanking the jury after a trial or in closing arguments, but by respecting our clients and cases with diligent preparation and expeditious use of jurors’ time.

The fact that this economy has substantially increased the cost of jury service to the juror leaves me uneasy. I am aware of the practical limitations that make any increase in the compensation for jurors unlikely and impractical because of budget concerns for state and local governments. Furthermore, I have always been apprehensive in my trials about those jurors who claimed their service would cause a hardship, but were unable to persuade the court that they should be excused. There is always some anxiety in these situations that such jurors may be distracted, or perhaps even antagonized by the court’s determination. In the worst examples, such a juror might seek to punish a party, lawyer, or other jurors by obstinate and unreasonable participation in the process.

There is no perfect solution that will alleviate the challenges that jury service has for our jurors. In a good economy or in a bad economy, justice is not expendable. The right to trial by jury is just that, a right. It is not a luxury, but the most fundamental foundation for our system of justice. As we see how this economy impacts jurors, all that we can and must do as lawyers is remain acutely aware of their sacrifice, and impress upon them at each opportunity how momentous their role is in our society, day in and day out.

Article appears in the DeKalb Bar Association Newsletter

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The View from the Bench

Mon, 05 Apr 2010 00:38:00 GMT

The Practice Corner: the View from the Bench
By Daniel DeWoskin

In February, I attended a panel discussion hosted by our own DeKalb Bar Association and moderated by Phyllis Williams. The title was “A View from the Bench: Professionalism in the Courtroom,” and the panel consisted of the Honorable Gregory A. Adams of the DeKalb Superior Court, Honorable J. Antonio DelCampo of the DeKalb State Court, and Honorable Elliott A. Shoenthal of the DeKalb Juvenile Court.

Although the discussion was interesting and enjoyable to attend, there was little that should have been enlightening to practicing members of the Bar. We have all attended seminars that remind us of the importance of professionalism and even common courtesy in our work. What made this particular panel discussion worthwhile was hearing these reminders from those among us who we might think are more insulated from seeing less-than-professional behavior.

As it turns out, the judges on this panel are not the passive sort that we occasionally encounter. These men pay attention not just to the substance of the litigation before them, but also to the tone of the parties. Although it does not necessarily qualify as a waste of time, most of us should not find it refreshing to hear that judges appreciate good preparation, honesty in our dealings with the court, opposing counsel, and all parties, and integrity. Instead, what I found refreshing was to hear firsthand that the judges are paying attention.

Judge Adams pointed out that he has seen some lawyers “blur the line between advocacy and meanness.” If I recall correctly, the judge was speaking more in regard to the practice of family law, but it is clearly applicable to the practice of law in general. I know exactly what sort of conduct and mentality he is referring to, and yet the more I think on it, the more preposterous it seems for those two traits to be near one another on a spectrum. Is it possible to be so zealous in one’s advocacy that it rises to meanness? Unquestionably, whenever an attorney even comes close to having to ask himself or herself this question, he or she has lost sight of the proper role of counsel.

I freely admit that my work is very personal for me. Like all good attorneys I have ever met, I care about my clients and their cases. At times, certain aspects of the litigation are frustrating and I can find myself drawing too close to the problem to be a part of the solution. Experience has helped me to recognize when these situations begin to occur so that I can take a step back, reassess the situation, and respond accordingly and professionally. As the judges reiterated during the discussion, to do anything short of this does a disservice to our clients, to the courts, and to ourselves as lawyers. All of this can be summarized by Judge Adam’s comment that while you “are there as an advocate, do not lose sight that you are a person.”

I mentioned that this panel discussion was also a public forum. I understand and appreciate the candor of the judges on the panel, but if I had just a moment to address any members of the public who may have been in attendance, I would tell them that most, if not all, of the attorneys in the room are embarrassed to hear judges stress the importance of simple courtesy or of accurate billing. When asked about pet peeves, Judge Shoenthal mentioned inaccurate billing by attorneys and failures to show up for scheduled and noticed appearances. Judge Shoenthal added sloppiness in pleadings, such as when a lawyer cuts and pastes information without thorough review to create a document that has incorrect facts, dates of birth, or information that is presented to the court.

The latter issue is one that we all may be guilty of at one point or another. Even the best among us, with the benefit of spelling and grammar review and true attention to detail, can overlook such an error. It has always occurred to me that a danger to these sorts of mistakes lies in the message that can be conveyed to the court, opposing counsel, or even my clients about how important the case is to me. Making a mistake does not simply mean that we do not care about the quality of our work, but depending on how it is made and our reaction upon learning it others may come to inaccurate conclusions.

Of course, I find no fault with Judge Shoenthal being honest about these issues, but I would want to ensure that members of the public realize that as lawyers, we are overwhelmingly a community that winces when we see or hear about unprofessional or unethical conduct. We are human and we make mistakes, but we are also aware of how important our cases are to our clients and others.

Judge DelCampo spoke of a lawyer who came before him on a motion arguing that the particular governing law in a case was X and had been for 30 years. When the judge researched the issue after hours, he learned that X was not the law, but that Y was the law. The following day, when this lawyer was confronted with this information, the lawyer confessed dismissively that he had no authority for his previous assertion. Judge DelCampo explained that when these sorts of events take place, a lawyer’s credibility is compromised in a way that can take years to repair, if repair is even possible.

I enjoyed hearing the judges’ approaches to some litigation vary from one another. For instance, Judge DelCampo explained that he occasionally prefers to handle certain issues or impediments in litigation or discovery informally with the consent of all parties and counsel, whereas Judge Adams prefers the more formal and rigid approach of motions, records, and hearings. Both judges conceded that the legitimacy of any approach is dictated by specific circumstances, but there was clearly a lesson in the value of knowing your court just as you know your case.

Although I have not practiced law in juvenile court, I could appreciate Judge Shoenthal’s further emphasis of this point. Many of the cases he sees from day to day involve the same advocates and witnesses, which showcase the importance of adhering to customs that, at their most basic level, amount to professionalism and courtesy.

All in all, I am quite pleased with my decision to attend the discussion. When I am next before any of the judges who spoke, I am confident that the cases will be dealt with expeditiously and with the measure of concern we expect from the court.

Article appears in the DeKalb Bar Association Newsletter

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Lessons of the Georgia Mock Trial Competition

Tue, 02 Feb 2010 00:18:00 GMT

Lessons of the Georgia Mock Trial Competition
By Daniel DeWoskin
February 2, 2010

This year I have been volunteering as an assistant coach with the Georgia Mock Trial Competition. In the past I have volunteered as a judge during the competitions, but this year I have been more actively involved in dissecting the problem and helping a student team shape their case. I can now say, without a doubt, that the experience has been one of the most fun, engaging, and rewarding volunteer opportunities in which I have ever taken part. Other than the fun that I have had, I have learned far more from the student participants than I ever anticipated. I am fortunate in that the students I have been working with are extremely bright and enthusiastic. When I was in high school, I think I would have been overwhelmed by the procedural constraints, performance anxiety, and the sheer amount of information that must be processed to prepare and compete. I am continually impressed by the way the students consult with and rely on one another to better their understanding of the problem and the law itself.

As those of you with some experience with the Mock Trial competition may know, the problem is written so that virtually all testimony is self-contained in affidavits, reports, and other evidence that the students pore over and commit to memory. The problem is not designed to allow student witnesses to make unreasonable conclusions or let their imaginations run wild. While discussing the similarities and differences between Mock Trial and the actual practice of law, a topic many students are curious about, I explained that by far the most significant difference was that no lawyer is ever certain what a witness will say once he or she takes the stand. One student remarked that if that were possible, there would likely be far fewer trials.

The students are very receptive to constructive feedback, not just from attorney coaches, but from each other. They experience some of the same frustration and relief that comes from the structured rules of evidence and rule of law that practicing attorneys experience each day. From week to week, as they prepare their witnesses and rehearse, their improvement is remarkable and their level of comfort increases exponentially.

It is refreshing to observe how the respective strengths and weaknesses of the students form a balance and give the team character. During practice, I and other coaches will occasionally challenge the students with objections, some more reasonable than others. In fact, sometimes we might make an objection that has little or no merit just to prepare the students for such an occasion. Of course, we assure them that in a real trial, no attorney would ever make an objection that lacked merit.

Even when they are caught off guard, or when they struggle for an answer or response that is on the tip of their tongues, the students learn, adapt, and improve. For many of their questions, the students want us to provide them with yes or no, black or white answers. They quickly have come to learn what we as attorneys know, but sometimes forget. The law is subject to interpretation. We can only represent our clients by knowing the law and the facts, preparing our cases accordingly, and anticipating what might take place in the courtroom.

The Georgia Mock Trial competition has reminded me that justice is impossible without collaboration, open-mindedness, and initiative. I selfishly look forward to meeting with the team to practice, not so that I can tell the students how I would do something so much as to see how they may do it. It is easy to lose sight of how much room there is for creativity in trial work. Watching as these students have learned how to tell a story through direct and cross-examination has been captivating.

Although I often work with other lawyers on cases, there are many cases in which I find myself studying reports, documents, and evidence alone as I prepare for trial. It is not unusual for me to sit at my desk with a file and meticulously obsess over a transcript, or instead over the possible testimony at trial. My time with these students has reminded me that there is no substitute for the insight that comes by working with others. In practice, we can all engage in this type of work with focus groups, consulting with our peers, or even talking with our non-lawyer friends.

We lawyers do this frequently without giving it much thought. Yet, there is a big difference between asking for opinions and ideas in a general sense, and observing testimony play out before you. These students have shown me something I should have been able to recognize all along. I cannot represent my clients to the best of my ability if my work and preparation is conducted in isolation.

I encourage everyone to take a few moments to learn more about the Georgia Mock Trial Competition, or perhaps even to volunteer as a judge. I guarantee that your time will be well spent and that you will be impressed by the talent and hard work that the high school participants have invested.

Article appears in the DeKalb Bar Association Newsletter

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2010 Resolutions – Bigger, Faster, Better, Smarter

Fri, 01 Jan 2010 00:19:00 GMT

2010 Resolutions – Bigger, Faster, Better, Smarter
by Dan DeWoskin
January 1, 2010

As we roll into 2010, I thought it might be worth exploring how some of our members view New Year’s Resolutions. For me, the beginning of a new calendar year rarely feels like the perfect moment for a fresh start or the time to make a specific change. After all, the majority of my cases did not terminate arbitrarily at 11:59 p.m. on Dec. 31, so any fundamental practice changes do not seem well-timed simply by virtue of the fact that I need to remember what calendar year to write on checks.

We all know folks who see January 1 as the perfect day to quit smoking, start exercising, or to otherwise better themselves. I wondered if such resolutions might apply to lawyers and how they conduct their business. I am always intrigued to hear about new developments and practices that other lawyers have explored and used to better their efficiency and the quality of their work. I may even try to incorporate some of these things into my own practice on a trial-and-error basis, but I find that very few may ultimately go the distance.

My habits aside, many people look to the New Year as an ideal time to leave old habits in the past and commit to self-improvement. I spoke to several of our members and learned that any improvements or changes they are making or intend to make are not scheduled to take place on a specified date. It is clear that as lawyers, when we see a need to take action, we generally see it as prudent to do so expeditiously.

The following statements from some of our members came in response to the question: “What, if any, changes do you intend to implement in your practice to make it bigger, faster, better, or smarter in 2010?”

Noah Pines
“I thought I did a good job in 2009. This is especially true considering the economy. I’m always looking to improve my practice, but, all in all, 2009 was a banner year for Ross and Pines. I don’t want to fix something that isn’t broken.”

Lamar Mitchell
“One thing that I intend to implement in 2010 is better contact with my former clients, whose cases may be resolved, but who may find some comfort in the fact that their attorney continues to stay interested in their day-to-day lives and businesses. A good portion of my referral work comes from my former clients, who seem to contact me rather out of the blue, and I always feel guilty for losing touch with them in the interim. A simple check-in email to former clients should not only help my business grow, but remind people I’ve helped in the past that I’m available to help in the future. I intend to keep those lines of communication more open in 2010.”

Chad Adams
“I’m going to make an effort to communicate more frequently with clients electronically to save time and keep better records.”

Brad Legare
“I intend to make better use of technology, specifically my iPhone. With the LogMeIn app, you can now control your desktop from anywhere, without having to carry around any sort of laptop. It really is remarkable. You can now have a micro-computer in your pocket.”

Phyllis Williams
“I intend to add some part-time help, do a better job delegating, and increase the number of staff meetings to become more efficient in my practice and continue to give my clients the service they have heard about. My business is strictly referral-based, so I want to give them the service they expect, and still devote a fair amount of time to running for office.”

A. Jack Fishman
“None. I am a retired IRS agent. I’ve been in active practice for 12 years. My practice is evolving. If I see a need for a change, I make that change right there on the spot. I utilize effective tax-planning. I plan ahead and get done what needs to get done. I don’t wait until the last minute.”

Although these responses do not suggest that many among us make professional resolutions in the traditional sense, they do show that we as lawyers are uniquely aware of the need to adapt to changes in technology and custom. Perhaps it is obvious. We all work with the law, which is always subject to change in language, application, and interpretation. It is only sensible that we should be amenable to similar adaptation to provide the best quality service to our clients and the community.

Article appears in the DeKalb Bar Association Newsletter

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Daily Report Article names Daniel DeWoskin foe of Frederick J. Hanna & Associates

Tue, 22 Dec 2009 00:48:00 GMT

State Fights to Investigate Collection Firm published in the Daily Report on December 22, 2009 discusses the Georgia Consumer office’s attempt to investigate debt collection law firm Frederick J. Hanna & Associates. The article also names Daniel DeWoskin a new foe of Frederick J. Hanna & Associates in relation to DeWoskin’s filing of a federal lawsuit filed against “Alpha Receivables”.

Entire Article Follows:

Governor’s Office of Consumer Affairs appeals Cobb judge’s ruling that says probe violates separation of powers

By Andy Peters, Staff Reporter
Published in the Daily Report
December 22, 2009

Georgia consumer regulators are continuing their fight to get details about the debt-collection practices of Marietta firm Frederick J. Hanna & Associates.

The state is appealing a decision by a Cobb County judge last September that said efforts by the Governor’s Office of Consumer Affairs to investigate complaints about Hanna’s debt-collection practice violated the Georgia Constitution’s principle of separation of powers.

Only the Supreme Court of Georgia can regulate the practice of law, held Judge S. Lark Ingram of Cobb County Superior Court.

In an appeal to the Supreme Court, lawyers from the state Department of Law argued that Hanna’s firm is much more of a business that can be regulated by the state government than a law firm that cannot.

“Although Mr. Hanna refers to his corporation as a ‘law firm,’ its organization bears no resemblance to that of a traditional law firm,” state lawyers argued, noting that the firm employs about 450 people, of which only 10 are attorneys.

In a telephone interview last week, Hanna dismissed that argument, saying, “because I only have 10 attorneys with 400 employees, they’re saying I’m not running my law office right.”

Hanna wins in Cobb

The action at the state Supreme Court follows a Sept. 4 order by Ingram that rejected an attempt by the Governor’s Office of Consumer Affairs to enforce an investigative demand on Hanna’s law practice. The Consumer Affairs office said it had received more than 200 complaints that Hanna and his employees were engaging in abusive debt-collection practices.

But Hanna, represented in the Cobb County litigation by former state Attorney General Michael J. Bowers, successfully argued that his business consisted of a law practice that is not subject to the authority of the governor’s consumer affairs regulators.

Hanna said that he typically has more than 150,000 active cases throughout the state, and that he files about 8,000 new suits and 2,000 new garnishments each month, making him one of the state’s busiest lawyers.

In its appeal of Ingram’s order, the Consumer Affairs office said the attorneys are specifically subject to the federal Fair Debt Collection Practices Act, which overrides state law. The appeal was filed on Dec. 7 by Attorney General Thurbert E. Baker and Law Department staff attorneys Isaac Byrd, Sidney R. Barrett Jr., Amy C. M. Burns and Jeffrey W. Stump.

The state also cited a 1975 Supreme Court case that says the separation of powers doctrine “is not a rigid principle.” Greer v. State, 233 Ga. 667, 668-69.

“This Court’s exclusive power to admit, discipline, suspend, or disbar attorneys does not preclude the legislative or executive branches from taking action that may affect attorneys or the practice of law,” the state wrote in its application for discretionary appeal.

The first contact that Hanna’s firm makes with subjects from whom it’s trying to collect a debt is a demand letter, the state’s attorneys said. In that letter, the subject is told, “at this time no attorney with this firm has personally reviewed the particular circumstances of your account.” Follow-up calls are also made by non-attorneys, the state said.

The Supreme Court’s authority to regulate lawyers is “not intended to enable lawyers to staff corporate businesses with hundreds of non-lawyers, put them in direct contact with consumers, and then claim a special dispensation that shields their activities from investigation,” the state wrote.

Hanna said in briefs filed in the Cobb County case that all of the debt-collections matters his firm pursues are overseen by a licensed attorney. Hanna said his firm has about 450 employees in Marietta and St. Louis.

The state used those facts in its appeal, saying that “given … the lopsided ratio of attorney to non-attorney personnel within the corporation, it is plain that a substantial amount of Hanna’s day-to-day business is conducted by its 440 non-attorney employees with no direct involvement by the ten attorneys.”

The state also noted in its appeal that the State Bar has received about 50 complaints about Hanna’s debt-collection practices but has taken no disciplinary action.

“They’ve taken the position that the State Bar doesn’t do a good job of monitoring attorneys and there needs to be another government body overlooking law firms,” Hanna said in the phone interview.

The state’s appeal before the Supreme Court is Doyle v. Frederick J. Hanna & Associates, Nos. S10A0395 and S10A0397. The Office of Consumer Affairs’ original case in Cobb County Superior Court is Doyle v. Frederick J. Hanna & Associates, No. 08-1-11567.

Hanna’s counsel on the Cobb County case and the Supreme Court appeal are Bowers and two colleagues at Balch & Bingham, partner J. Matthew Maguire Jr. and associate Marlie A. McDonnell. The response from Hanna’s attorneys is due Dec. 28. Oral arguments in the case are scheduled for Feb. 16.

Another foe

Hanna recently picked up another foe—an Atlanta attorney whose practice focuses on representing consumers in debt-collection matters.

At issue was a 2008 suit brought by Alpha Receivables, one of Hanna’s clients, against an Atlanta woman, Jennifer Chattman. Alpha claimed in DeKalb County State Court that Chattman owed it $1,505.

Chattman’s lawyer, Daniel E. DeWoskin , proved that Chattman never had such a debt and filed a counter-claim. Alpha admitted it made an error and withdrew the case.

In June, DeWoskin sued in federal court, saying Alpha Receivables and Hanna’s firm committed fraud and violated state and federal laws regulating debt-collection practices by creating a fictional debt and trying to collect it from Chattman.

Hanna’s law firm and Alpha Receivables are the same company, DeWoskin said .

“Alpha Receivables has no employees other than Fred Hanna,” DeWoskin said . “Its address is the same as Hanna’s law firm.”

Hanna said in a phone interview that there is nothing to DeWoskin ‘s fraud claims.

“When we first filed the suit, we made an error with the creditor and it was amended,” Hanna said. “We deal with these things all day long.”

DeWoskin is scheduled for Jan. 11 to take the depositions of employees of Hanna’s law firm and Alpha Receivables. In the DeWoskin case, Hanna is being represented by two attorneys from his own firm, James T. Freaney and Scot W. Groghan.

The complaint DeWoskin filed on behalf of Chattman in the U.S. District Court for the Northern District of Georgia is Chattman v. Alpha Receivables, No. 09-CV-1525. The original collections case that was filed against Chattman in DeKalb County State Court was Alpha Receivables v. Chattman, No. 08A87534.

Leadership in the Face of Despair

Wed, 02 Dec 2009 00:21:00 GMT

Leadership in the Face of Despair
by Dan DeWoskin
June 1, 2011

I have noticed this year that it is more and more difficult for me to watch the evening news when I get home. There are stories and updates about the wars, about flu epidemics, health care reform, and sobering reports about the economy. Each of these topics affects all of us in one way or another, yet together they seem to overwhelm us. It is quite simple to become numb or succumb to a feeling of helplessness. For me, it is as though the problem is so colossal that it is difficult to envision a solution.

As lawyers, we are problem solvers. We practice in all different areas and represent all sorts of clients. Some of us spend our time anticipating and preventing problems for our clients. When I look at things from this perspective, I find the helplessness and hopelessness I feel to be unreasonable and irresponsible. I think we owe it to our community to acknowledge its needs and contribute, to take part in critical thinking and action that will inspire hope in others.

I am not suggesting that as attorneys we are superior to others around us, but I do believe that the ethical protocols that govern our professional lives impose upon us a duty to think critically and proactively. Although the solutions to some of the massive troubles facing our community may not be legal in nature, think about how often the service we give to our clients transcends mere legal advice. Just as our clients can look to us to be the voice of reason, our community should look to us as the voice of hope and responsible leadership.

As the holiday season approaches, the humanity of our community blossoms and inspires. There are food drives, toy drives, and other charitable endeavors that call for us to support those in need. Although it is more difficult for many to give, I believe most will continue to contribute this year, as they have in the past, mindful that their own situations could be far worse. Yet, as important as the contributions to charitable organizations are, for me, writing checks alone has not and will not alleviate the helpless feeling I described. The only way to do this is by donating something more of ourselves, such as our time.

Charitable donations and volunteerism are both essential to building and maintaining strong communities, such as ours. Increasing participation in one cannot diminish the need for participation in the other. As lawyers, we can take part in pro bono work that affords us the opportunity to put our own unique skills to work. We can also volunteer with other community outreach projects. My point is that the only way any of us can feel a sense that we are turning the gears to move our community in the right direction is to take a more active approach.

I should clarify that the type of contribution and leadership necessary at this time is not limited to organized volunteerism. That service is as vital as ever, but I am speaking more of the sort of contribution we can make by keeping our eyes open to those around us. When we make a conscious effort to be aware of others’ needs, we can create hope from despair. Vigilance and leadership alone will not solve the tremendous adversity that our community faces. It will not create jobs or end wars. What it will do is inspire, empower, and demonstrate that those who feel isolated and despondent are not alone.

The sense of helplessness I sometimes feel comes from the idea that the problems are so great I cannot solve them. However, this analysis is flawed from the start. The problems are not mine alone to solve. They are not greater than our community, and with the right leadership and contribution, the challenges can all be met. After all, even in our everyday problem-solving roles, we rely on others to achieve our clients’ objectives. In extraordinary times like these, we must rise to the occasion and demonstrate that action will overcome despair.

For myself, 2009 will end on a somber note. I look to 2010 and the difficulties that it will see for our community as a year of rebuilding. The notion that the worst is behind us is the only state of mind from which optimism and activism will spring forth. It is this very state of mind and collective goodwill that will unite and strengthen our community. I would implore each of you to make a conscious effort to exchange feelings of helplessness for optimism and contribution.

Article appears in the DeKalb Bar Association Newsletter

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Building a Better Mousetrap

Sun, 01 Nov 2009 00:23:00 GMT

Building a Better Mousetrap
by Dan DeWoskin
November 1, 2009

This month, I had the pleasure of meeting with former DeKalb Bar Association President Mike Hawkins of the Hawkins Law Firm. Mike works exclusively in the area of DUI defense and has done so for many years now. For 10 years, Mike practiced as a named partner at his former firm, but ventured out in July 2008 to establish his own practice. Mike and his former partner dissolved their partnership on good terms, and the impetus behind the change was largely Mike’s preference to design his professional life in a manner that complemented his personal life. If you have been reading this article for the past few months, you have likely found that this rationale is a common theme for the lawyers I have interviewed and who have made significant changes to their practices.

For Mike, until starting his own firm last year, his home was in Dunwoody, his office in Buckhead, and he spent many hours each week in court downtown. By setting out on his own, he was able to find office space just minutes from his home, reducing time wasted in a commute and allowing him to schedule lunches at home with his family. Because his work frequently requires court appearances in cities and counties across the metro area, having an office close to his home was much more practical for him. Such proximity between his home and office, and the increased efficiency he has found in avoiding traffic, has allowed Mike the freedom to arrange his schedule to occasionally go grocery shopping with his family or handle other personal business.

At his prior law firm, Chestney-Hawkins, there were three attorneys and two support staff. Now, for the time being, Mike is the only attorney and has a full-time assistant to help coordinate the day-to-day office operations. With respect to the operations of the office, Mike was keen on the idea of building his practice from the ground up. Although the Hawkins Law Firm functions with fewer personnel than Mike’s former firm, taking advantage of services like those offered by Cbeyond provides the necessary resources to perform more effectively than ever before. While there is no doubt the practice will continue to grow and Mike will need to hire an associate or two, for the moment, he has focused his attention on developing a savvy, effective business model.

By “savvy,” I am referring to Mike’s focus on how technology can make his work easier, more efficient, and more cost-effective as a whole. There are many CLE seminars about the practice of law and technology, but Mike’s approach is not geared to accounting or scheduling issues, but in the use of technology to enhance his client relationships. Mike explained to me that as a lawyer, using technology effectively goes far beyond getting email on the go from a Blackberry.

More specifically, Mike is working on developing a system in his office that will allow clients to have proprietary access to certain elements of their files. Whenever documents are generated, court dates are scheduled, or some other activity in their case takes place, the clients will receive electronic notices. This system will keep the clients apprised of updates in their cases, and also keep clients current on the incremental work that goes on during the weeks and months prior to court that they may be unaware of without time-consuming calls to their lawyer.

I found this particularly remarkable and, in some ways, counterintuitive. It seems only logical that a client seeking good customer service from his or her attorney would want a great deal of personal contact with the lawyer. As advocates, we are constantly reminded that one of the most common complaints to the bar year after year is that attorneys have failed to return telephone calls. However, with the system Mike is pioneering, there are fewer calls to return and yet the client is better informed of the progress in his or her case than ever before. Clearly, this use of technology does not take the place of client consultations, but it reduces unnecessary status checks from clients and reminds them that Mike is acutely aware of their cases.

In addition to enhancing his client communications, this system is also much more “green” in the sense that it alleviates the need to draft letters and incur postage to send discovery or investigative reports to clients. Instead, everything is maintained securely and generated electronically until the need for use at trial. As the only controlling voice in his practice, Mike was easily able to implement innovations like these. When practicing as a partner, especially in an environment and firm that has a successful business model, it is very difficult to introduce change of any sort. “It is easier to design the practice that suits your needs and goals as a dictator than as a vote in a democracy of equals,” he says.

I was very curious to know whether the success of Mike’s former firm had created a brand of sorts that was difficult to walk away from. Mike explained that there was no question that with a practice dedicated to DUI defense, there was absolutely a “firm reputation” or brand. However, when he took a step back and evaluated the factors that comprised that brand, it was the quality of the work and the service that he and his partner had provided through the years that ultimately gave the firm its character. Having spent years preparing cases, arguing motions, and trying cases before judges and prosecutors in the Metro Atlanta area, Mike knew that his brand was as much his own name as it was that of his previous firm.

The Hawkins Law Firm has not strayed from the basics with which Mike has already found success. Instead, Mike looks to continue building his practice to new specifications, this time with more consideration to balancing his work and home schedules.

Article appears in the DeKalb Bar Association Newsletter

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Interview with a Solo Practitioner

Thu, 01 Oct 2009 00:31:00 GMT

Interview with a Solo Practitioner
by Dan DeWoskin
October 1, 2009

Last month I discussed some of the considerations and challenges involved in establishing a solo law practice right out of law school. This month, I spoke with Douglas Tozzi, an attorney who spent more than seven years working at a firm in Buckhead before starting his own firm, Tozzi Law Group, LLC, in Decatur.

Where did you work before starting your own firm?
I worked for a boutique firm located in Buckhead providing corporate services and commercial litigation/alternative dispute resolution representation involving business and commercial disputes. I started working there in my third year of law school as a law clerk and continued to practice law there for the next seven years.

Are you still engaged in the same areas of law that you worked in at your previous firm?
There were, of course, some areas of the law that I enjoyed and was more successful at than others. I continue to focus on commercial collections for law firm and business clients, in addition to representation of commercial building owners in landlord-tenant matters.

What influenced your decision to make a change after seven years at your previous firm?
I had been contemplating going out on my own for a number of years. I was fortunate in that many of the clients I had been working with wanted to continue working with me at my new firm. This made the transition to a solo practice fairly smooth for me. I elected to forego partnering with other lawyers at the outset to maintain control over the practice. While this may change, going solo has also allowed me to keep my schedule relatively flexible since I have no one to report to but my clients.

Furthermore, my new firm is located closer to my home in Decatur, which allows me to have lunch with my wife occasionally and spend more time with my one-year-old son, so I feel like my professional and home life are now more in synch.

What alternatives, if any, did you consider prior to starting a solo practice?
After speaking with a number of corporate lawyers who raved about how great it was to be in-house, I thought very seriously about taking that route. However, given the fact that I had invested so much time and energy into developing a client base over the years, I felt that it made more sense to go ahead and work for myself. This is what I had wanted to do for a long time, and I had learned the ins and outs of the operation of the firm at which I had been working. I think this knowledge gave me more confidence to go it alone than I otherwise would have had.

Did you experience any difficulties with your employer when leaving your previous firm, such as disputes over clients or continued representation?
Not really. My prior firm took a very professional attitude about this delicate issue, leaving the decision entirely up to the clients.

Was there any resentment between you and your former firm?
No, there was no resentment. While working there, I had the opportunity to travel internationally to meet with foreign clients and to do some really interesting work very early in my career. Since it was a small firm, I was able to obtain a great deal of experience in cases involving complex legal matters within a relatively short period of time. My employment there had been mutually beneficial, but after seven years, it was just time for a change. I appreciate how supportive they were in my decision to start my own practice.

What were your biggest concerns about starting a new solo practice? How did you address these concerns?
Initially, it was very difficult to forego the perceived “security” of a steady paycheck. Other than that, I used to have a paralegal and an associate who assisted me and shouldered some of the workload. For the moment, it’s just me. I have found that there is actually a great deal of support from other lawyers in the solo/small firm community. My experience over the past few months has done a lot to bolster my faith in my profession and the community at large. It seems strange to me, but where I thought my lack of certain resources would detract from my efficiency, it has actually provided more time and opportunity to focus on my clients. I am, of course, no longer required to spend time in meetings dealing with administrative matters and do not miss the law firm environment.

Article appears in the DeKalb Bar Association Newsletter

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Hanging Out Your Own Shingle

Tue, 01 Sep 2009 00:34:00 GMT

Hanging Out Your Own Shingle
by Dan DeWoskin
September 1, 2009

Recently, I have been involved in countless conversations with colleagues about starting up new law practices and joining existing practices. The economy is perhaps the most significant reason for this topic coming up so much more now than in years past, but many attorneys are using what might normally be considered adverse changes to their career path as an incentive to achieve better, more satisfying employment.

In this and upcoming issues of our newsletter, I will interview other attorneys regarding their personal experiences establishing their own firms and/or joining existing practices. There is no end to the considerations that we lawyers must examine as we make these sorts of decisions. A lack of planning and preparation can doom a practice before it ever has a chance to get off the ground. Furthermore, maintaining a healthy practice almost always means having the ability to adapt to change.

Trial by Fire

I myself hung out a shingle immediately after learning I had passed the bar. I researched the matter thoroughly, speaking to nearly every lawyer I met, asking their opinions on the matter. I was surprised to find that virtually all but a handful of these lawyers told me that I would be crazy to go out on my own without first working with, and more likely for, another lawyer or firm. Since crazy appeared to be the primary qualification, I was a perfect candidate for instantaneous sole practitioner. I should explain though, that the handful of lawyers that told me to simply “go for it” were, themselves, lawyers who started off on their own. That spoke volumes to me.

My preparation for beginning my own practice began in my second year at Georgia State University College of Law. Completely disillusioned by my law school experience, I began to wander the hallways and courtrooms of the Fulton County Justice Center. I observed dozens of trials before different judges, carefully noting the range of styles, techniques, and abilities of the many lawyers I watched try cases. I started wearing jackets and ties so that jurors would pay less attention to my presence in the courtroom. This was especially disconcerting in some of the criminal cases, where I could plainly see distracted jurors try to figure out whether I was in court to support the defendant or the prosecution.

After observing many trials from voir dire to verdict, I naively believed that with the occasional assistance of friends and colleagues I, too, could represent clients diligently and effectively. I was fortunate enough to see some truly magnificent lawyers try both civil and criminal cases. I took advantage of opportunities to discuss cases, strategies, and the law with counsel, judges, and occasionally even jurors. Some of these same judges, who were then a source of encouragement, later showed trust in my ability by appointing me to represent indigent defendants.

There is no question that I was terrified during my first few months as a lawyer. I was certain I was going to say the wrong thing or show up in court unprepared. I remember once telling Judge Roland Barnes that I was concerned I would not know what caption to put at the top of a particular motion. He took me back to his chambers, where he told me plainly that my caption should begin “Motion for the Court to…” and then simply state what I wanted. As an example, he pulled out a case in which a pro se defendant filed a “Motion for the State to Kiss My Ass” and then proceeded to enumerate a dozen or so reasons why the State should be compelled to comply with his unusual request.

From the moment I started out, I found that there were endless resources available that would help me learn the fundamentals, so that I could provide competent representation to my clients. The lawyers I knew were more than happy to provide me with guidance, and many were extremely generous with their time, as well. I never took this generosity for granted, and today I do all that I can to pass along that same courtesy. In fact I still find myself routinely seeking advice from colleagues, except now I am able to provide a more constructive dialogue based upon my own experience.

The Drawbacks

In deciding to strike out on my own right out of school, I had foregone much of the safety and security that I might have found working for other lawyers first. Most important among the things I sacrificed, at least at that time, was the paycheck that my fellow graduates were getting on a routine basis, while I had to spend more time marketing than practicing law. In hindsight it was a good opportunity to learn how important it is to manage overhead, and adapt to the financial ups and downs of running a small business. Many times I have envied lawyers who never had occasion to realize that a law practice is actually a business, as well.

It may come as no surprise that one of the most prevalent complaints from clients about their lawyers is that lawyers fail to return calls or to do so promptly. As a sole practitioner, not returning client calls promptly is not a viable option. In my experience sole practitioners are acutely aware of the vital need to maintain a positive working relationship with each client. The strongest commodity an attorney has is his or her reputation, which is established by knowledge, experience, and ability. A reputation cannot sustain itself without the approval of an attorney’s clients. Repeat business is essential. This was something I thought perplexing when I handled a lot of criminal defense cases. However, when there is a well-established trust between attorney and client, the groundwork is already in place for effective representation.

Another challenge I faced was not knowing exactly what kind of work I wanted to do. I knew I wanted to be a trial lawyer, but I was equally fascinated by medical malpractice cases, personal injury cases, and criminal cases. Although I did not wish to be a jack of all trades, at first I accepted work that I cared very little for, simply because I was paid to do it. I reviewed contracts, represented neighbors in disputes against one another in magistrate court, and spent hours and hours getting up to speed in areas of law that I was not at all interested in. I learned what sorts of cases I enjoyed, and what sorts of cases I did not. It is not by chance that I worked on exactly one bankruptcy case and exactly one divorce case. Suffice it to say that I do not like dealing with my own family’s issues, so getting paid to deal with someone else’s was not an intriguing proposition for me.

Aside from financial difficulties, I occasionally struggled with a lack of confidence about my knowledge of the law. I had not learned how to speak to clients and other lawyers. There was a very steep learning curve in some of these encounters that would have been much easier had I had an experienced mentor overseeing the details of my work. Today, I look back on some of the punches I took on the chin as the price for having done things the way I chose to do them.

The Benefits

That brings me to the benefits that I afforded myself by starting out on my own. While my first set of business cards was still at the printers, I had reassured myself that the worst case scenario was not going to be disbarment. I was convinced that the worst thing that could happen was that my phone would not ring, and no clients would ever find or be referred to me. When I could no longer suffer dinner from a can, I would have to search for a job. This is exactly what I would have had to do if I did not go it alone right then.

In all honesty, I never did have to eat dinner from a can. Things picked up rather quickly. My friends, lawyers, and others trusted me with their referrals. I handled some court-appointed work, which proved to be invaluable as I encountered clients from all different backgrounds, and I learned what I needed to do in each situation in order to effectively communicate and represent them.

In fact I now see that it was to my benefit in many ways that I did not have another attorney telling me how to talk to clients. This is a necessary skill for any good trial attorney, and it is one that fundamentally requires the lawyer to be himself or herself. Because I had not learned how to talk to clients, I had never learned to talk down to clients. On my best days as a lawyer, I speak to clients, jurors, and lawyers in the same manner as I would have before ever applying to law school. Every trial lawyer knows or should know that the phrase “You talk like a lawyer” does not mean you are an effective communicator.

Being a sole practitioner right out of law school also meant that I had to learn how to run my business, manage my office, deal with clients, meet my deadlines, investigate my cases, and prepare and try my cases without any assistance. Although this was often a nightmare, I knew every aspect of my practice, never forgot a client’s name, and personally knew the most minute details of each of my cases. The convenience of having assistants, such as investigators and paralegals, can be a weakness if taken for granted.

Finally, the responsibility that I took on by hanging out a shingle meant that I had the authority to call the shots and determine how I worked my cases. Aside from judges, nobody told me what to do or when to do it. I was never comfortable taking direction from others, so this aspect of my work really suited me. There was no one else to blame for any bad habits I acquired (but myself), and I hope that today I am a better lawyer for it. When I won my cases, it was because I was well prepared and did a good job. When I lost my cases, it was because the jury was wrong and biased, or maybe it was the judge’s fault. The point is that I was able to see my own work in action.

After a year and a half on my own, I began to share office space with an experienced trial attorney. Soon thereafter we formed a partnership that lasted four years. At the time this was the best of all worlds, as I did not have to answer to anyone else, yet I had someone else right there to give me feedback. Even this partnership would not have been possible had I not first practiced alone. At present, I am on my own again, but I am much more comfortable in my abilities as an advocate.

Working at a firm would likely have meant that I would have gotten far less courtroom experience as soon as I did, and I would have had far less discretion on how to prepare my cases. I might not have learned so quickly the type of law I enjoyed practicing. Today, I have many friends who were hired by firms after law school, and made salaries they never imagined they could achieve. They worked very hard for years, and some made partner. However, many of these lawyers have recently suffered from layoffs. Now, they are finding it difficult to market their particular skills. Having never had to market to clients, some of these lawyers feel truly lost at the moment and are having to reevaluate their careers entirely.

It is simple to lose sight of the fact that there are many applications and opportunities for lawyers. The fact that someone has spent the past five, 10, or 15 years working with mergers and acquisitions does not preclude him or her from taking up work as a criminal defense lawyer. The most fundamental lesson I learned has nothing to do specifically with being an attorney. You have to want to go to work each morning if you want to be successful.

In the end there is no substitute for experience. My confidence grew with each case I handled, and my abilities as an advocate were enhanced with both successes and failures. I have absolutely no regrets for the decisions I made. I continue to embrace the fact that this path means learning new things every single day. Being a sole practitioner is not for everyone, nor is hanging out a shingle without ever working for or with another lawyer. For me, though, there was no other way to go.

Article appears in the DeKalb Bar Association Newsletter

See Original Article

How to Fight Wrongful Collection of Debts

Fri, 05 Jun 2009 01:37:00 GMT

How to Fight Wrongful Collection of Debts

There is an unfortunate epidemic in this country of debt buyers purchasing old credit card debt and pursuing collection in illegal, unethical, and unprofessional ways.

1. Always be vigilant about your credit history

Be careful not to presume that credit agencies such as Equifax and Experian have correct information on your credit history published. These are large corporations that manage astounding amounts of information. The slightest errors in the information that they have can wreak absolute havoc on your credit rating and do damage that is lasting and devastating. Pull credit reports from all three major agencies annually. It is free.

2. Keep good records.

As tough as it may sound, keeping separate files for each and every credit account you have can save a great deal of time, money, and hardship later on. I recommend maintaining these files and records for at least 7 years. If there is ever a dispute as to what information is correct when it comes to your credit report, having documentation is the key to fixing any damage.

3. Pay attention to notices from credit card companies.

This may sound obvious, but it is very important to read over notices from credit card companies, as well as collection letters and other calls that come in regarding your accounts. The number of violations of federal laws regarding debt collection is astounding and seems perpetually on the rise.

4. If you are ever sued, consult an attorney immediately.

Many of the debt buyers’ business model begins when they file lawsuits against you. Their goal may be to use the legal system to bully you or intimidate you into paying amounts that you do not legally owe to them or anyone else. Any delay in consulting an attorney may cost you a tremendous amount of time and money in the long run. Also, if you fail to timely answer or exercise your rights and defenses in these situations, you may very well lose them. Call a lawyer immediately.

We Must Respect Jury’s Decision

Fri, 19 Dec 2008 00:17:00 GMT

Daily Report – Friday, December 19, 2008

Letter: We must respect jury’s decision

By Dan DeWoskin

First, let me say that I wish to address the concerns held by many prosecutors, legislators and others in the wake of the Brian Nichols verdict that the burden of achieving a recommendation of death in capital cases is too high. I do not intend toassert any opinions as to the constitutionality, legitimacy or ethical considerations regarding the death penalty. I simply feelcompelled to respond to the increasing distrust of and contempt for the discretion of Georgia juries.

In recent years, we have seen tort reform legislation limiting the discretion of juries in many civil actions. Now, because a jury convicted Nichols unanimously but failed to unanimously agree to a recommendation of death, many prosecutors like J.David McDade and Paul L. Howard Jr. are advocating for legislation that would alleviate the requirement of unanimity for are commendation of death in such cases.As I have said, I am not writing this as an opponent of the death penalty. Instead, I am writing this as an advocate of our Georgia jurors. Without question, what makes the American judicial system the best in the world is that, at the end of the day,we trust the enlightened conscience of impartial juries to tell us what Justice is. Now, because of the extremely egregious circumstances of the Nichols case and the fact that he appears to have avoided paying for his crimes with his life, many in our community want to further restrict the trust we place in juries.

McDade is quoted to have said that “the problem occurs when jurors say one thing in voir dire then do another thing in thejury room.” As an attorney who has handled both civil and criminal trials, I wholeheartedly understand the frustration expressed by these words. I can recall several instances where I have been taken aback by the verdicts returned by juries and their reasoning. However, unless McDade is arguing that we should polygraph each and every prospective juror, the process of voir dire is the best and only means we have procuring fair and impartial jurors.In my experience, the state has often benefited from jurors who have perhaps said one thing during voir dire and then actedin direct contradiction during deliberations. Yet this is why we place prospective jurors under oath. This is why judges,attorneys and parties must never underestimate the importance of the voir dire process. Changing the law to restrict thediscretion of juries is insulting to the service provided by these citizens.

Aside from reducing the requirement that a recommendation of death be unanimous to a 10-2 or 9-3 verdict, other suggestions to “improve” our criminal justice system include giving prosecutors extra “strikes” to disqualify prospective jurors when a certain number of prospective jurors indicate they have serious reservations about the death penalty. Voir direis not about selecting jurors who will convict, acquit or find for the plaintiff or defendant. It is about excluding jurors whocannot listen to all of the evidence and return a verdict that is not compromised by bias and prejudice.

It is troubling that because of their dissatisfaction in the verdict in this case, many feel that we should change the rules. Thejurors in the Nichols case did their job. They listened, they deliberated and they told us what Justice is. For all of us whowere not jurors, we are entitled to our opinions, but we must respect the opinion of our fellow citizens who served on thatjury.

Police “Subpoenas” Puzzle Lawyers

Wed, 13 Sep 2006 03:24:00 GMT

Fulton County Daily Report
Greg Land
September 13, 2006

ATLANTA ATTORNEYS Charles B. Pekor, Jr. and Daniel E. DeWoskin were in a meeting at their downtown Atlanta office last month when a pair of detectives from East Point arrived and demanded an audience.

Upon emerging, DeWoskin was presented with a “Court Order for the Production of Documents” bearing a large shield with the legend “East Point Police Department.” Signed by East Point Municipal Court Chief Judge Rashida O. Oliver, the paper ordered DeWoskin and a client, Joseph Woods, to produce a list of documents pertaining to the security business operated by Woods and unspecified certification records for one of his employees.

A boldfaced paragraph warned that the documents must be produced within 10 days “OR a representative MUST appear personally in The East Point Court” on Sept. 6 – seven days later – or “Failure to Appear Warrants” would be issued.

“We were astounded to see what appeared to be an illegal subpoena, apparently issued by the police department itself,” said Pekor during an interview. “It was even more disturbing that a police department was trying to seize attorney-client documents using bogus subpoenas.” Pekor detailed the encounter in a motion he filed Sept. 5 in Fulton County Superior Court seeking an emergency injunction to stop the enforcement of the subpoena. Within hours of his filing, Oliver had faxed Pekor a signed order, oddly dated Sept. 1, quashing and withdrawing the subpoena.

On Sept.6 Pekor filed to dismiss his action, Carver Bible College et al. v. City of East Point et al., No. 2006CV2168. But the short-lived case poses questions about why Oliver signed the subpoena and tells a strange story about what may be a turf fight between East Point officers who moonlight as security guards and a private security company.

Unusual situation

Oliver, who graduated from the Georgia State University College of Law and was admitted to the State Bar of Georgia in 1994, was appointed by the East Point City Council in February 2005, acccording to council minutes posted online.

Reached by telephone, Oliver declined to discuss the subpoena, where it originated or whether she routinely issues such orders for – and on the stationary of – the police department. Fellow East Point Municipal Court Judge Glen Eswrd Ashman said he was unfamiliar with the case but did not recall ever seeing or issuing any subpoenas bearing a police department shield.

After hearing about the situation, Atlanta Municipal Court Judge Andrew A. Mickle said, “Without seeing the document, I can tell you immediately that, one, a subpoena must be signed by the clerk of the court, and two, a police department cannot be given subpoena power.

“A judge can issue a search warrant,” he added. “Thats how it’s usually handled.”

Calls to the detectives, Allyn E. Glover and Robert C. Gray, were returned by East Point Capt. R.C. Popham.

“That’s the way our subpoenas are,” said Popham, adding that he was unaware of any irregularities but that the incident may lead to a review of the documents. East Point City Attorney Nina Hickson, through an assistant, referred questions to Oliver. East Point city spokeswoman Zee Bradford said the mayor’s office had received no complaint about the judge, and had no further comment.

Events in dispute

According to Pekor and DeWoskin’s complaint, the East Point detectives were seeking documents retlated to the lawyers’ client, Woods, and his company, Apex Security. Woods’ employee, James Wilson, was on patrol for Apex in the Regency Park Apartments on Aug. 16. According to a statement Wilson made to East Point police in a department incident report, Wilson and a partner saw a woman get into a parked SUV with two men in “a known drug area.’

What happened next is in dispute.

According to Wilson’s account, he approached the vehicle and tapped on the window with his flashlight. The vehicle started to pull off when a man jumped out of the passenger side; Wilson raised his flashlight and scratched the man’s head, he said according to the report. But the police report reveals the two suspicious men wer undercover East Point police officers. One of the officers claimed Wilson had snatched the door open and struck him with the flashlight and several times with his fists before the officer could identify himself.

Worried that the ruckus would “blow their cover,” the undercover officers said in the report that, once they had made their identities known, they told the security guards to meet at a nearby restaurant, where several other East Point officers and Apex’s chief, Woods, soon arrived. Wilson was cuffed and placed in a car, but – following a conference – he was released.

The report said that East Point officers later determined that Woods and Wilson are certified by the Georgia Peach Officer Standards and Training Council, that Woods oversaw a volunteer force for Carver Bible College in southwest Atlanta, and that his firm had been hired by the apartment complex to provide security.

The report also noted that Apex’s corporate registration with the Secretary of State had lapsed as of last year.

When Woods and Wilson were contacted by East Point police, they retained lawyers Pekor and DeWoskin. The lawyers exchanged phone calls with the detectives, recalled Pekor, “then I didn’t hear anything else, and I assumed they had dropped it.” But on Aug. 30, the detectives arrived at Pekor’s office bearing the purported subpoena, seeking Wilson’s training records and a list of documents related to the Bible College and Apex.

“The ‘officers’ were extremely rude, threatening and intimidating to our paralegal,” wrote Pekor in the Fulton County motion. “We asked Detective Glover what pending court case this was in reference to, and he advised us that there was no pending court case, but rather an ‘ongoing police investigation,’ and that the subpoena was being issued in that connection.”

Glover, according to the motion, “advised us that failure to comply with the ‘subpoena’ would result in a warrant for our arrest,…When we attempted to point out to Detective Glover that, to our understanding, in the State of Georgia, subpoenas can only be lawfully issued in connection with an existing court case, or by a duly empanelled Grand Jury, he told us that we had ‘only three options, bring the records in person, fax them or mail them,’ or be arrested, to the best of my recollection.”

According to the police report, on the same day, the detectives visited Garvin Abernathy Jr., vice president of business affairs at Carver Bible College in southwest Atlanta, and presented him one of the purported subpoenas, demanding “complete copy personnel records for Chief Joseph Woods” and “all agreements made with Joseph Woods for Security/Police protections.”

On Sept. 2, an East Point officer found Wilson on duty at the apartments, and arrested him on aggravated assault charges; after several hours in jail, he was released on bond. On Sept. 5, Pekor filed his motion to enjoin the subpoenas on behalf of Carver, Woods, Wilson and DeWoskin; that afternoon, he received notice that the subpoenas had been quashed.

After reviewing the police reports, the Daily Report attempted to reach the detectives and Popham by telephone and e-mail for further inquiry, but there was no response.

Pekor, pressed for an explanation of the delayed arrest and intense interest in Apex’s affairs, said the company had replaced several East Point officers who had formerly provided security for the apartment complex, and he suspects retaliation.

“Our understanding is that the security company was hired about three months ago, and there may be some resentment there,” he said. He noted that, in the aftermath of the Aug. 16 incident at the apartments, “there was a big powwow with the police and a captain, and everybody just decided it was all a mistake, no harm, no foul, and everybody went home.” Later, he said, “they may have decided ‘Hey, now we can shut those [security] guys down.'”

He said his clients declined to speak to the Daily Report . Attempts to reach Regency Park mangement were unsuccessful.

Class Filed Against Fulton Sheriff

Thu, 22 Apr 2004 03:01:00 GMT

Fulton County Daily Report
By Steven H. Pollak ,
Assistant Editor-Digital Content
Thursday, April 22, 2004

Jail’s delays in inmate releases, strip-searches of prisoners prompt suit

Delays in releasing inmates from the Fulton County Jail and the practice of strip-searching arrestees and prisoners w ho are about to be released have prompted a class action suit that could leave taxpayers footing the bill for millions of dollars in settlements and legal fees.

A group of attorneys led by William C. Claiborne III, a Washington lawyer w ho is licensed in Georgia, filed a federal class action suit Wednesday morning in U.S. District Court in Atlanta. Powell v. Barrett, No. 1:04CV1100 (N.D. filed April 21, 2004).

Atlanta attorneys Charles B. “Chuck” Pekor Jr. and Daniel E. DeWoskin of Pekor & DeWoskin will serve as local counsel for the suit. Claiborne said his brother, Augusta sole practitioner James Patrick Claiborne, also w ill work on the case, as w ill George Washington University Law School professor Lynn E. Cunningham. William Claiborne also has asked Los Angeles attorney Barrett S. Litt to help.
Litt was the lead counsel for a similar group of class actions brought against Los Angeles County. Those suits resulted in a $27 million settlement for the inmates in 2001. Two suits brought by William Claiborne against the Washington jail, the city of Washington and the U.S. Marshal’s Service, which exercises joint custody of arrestees at the courthouse, are pending before a federal judge.

Pekor said he expects the Fulton County class to include almost every inmate to pass through the jail in the last two years.

Anecdotes of late releases prompted the Atlanta-based Southern Center for Human Rights to begin studying the problem in Fulton. Mary Sidney Kelly, an investigator and paralegal at the Southern Center, said she attended two weeks of first appearance hearings and state court preliminary hearings. She tracked 215 cases where the defendant w as sentenced to time served, the charges were dismissed or the judge granted a signature bond.
None of the cases tracked by the Southern Center resulted in the defendant’s release from custody the same day the judge signed an order. Of the 215 cases, Kelly found only 24 defendants were released within one day after their court dates. Some of the others took much longer to be freed: four remained in jail six days after their release dates, three were held seven days, one was held 11 days and one w as held 12 days.
Stephen B. Bright, director of the Southern Center, said the problem lies in the jail’s inability to process inmates in a reasonable amount of time. “The perception of it is that there are not enough personnel to process people out,” he said. “People don’t get out until a computer check is done. … The jailers, after people are supposed to be let go, are then checking for warrants. … It’s a total bureaucratic mess that keeps people in.”
A spokeswoman for Fulton Sheriff Jacquelyn H. Barrett said there would be “no statement at this time” about the late releases. She referred questions to Fulton Superior Court Chief Judge Doris L. “Dee” Dow ns. Barrett, w ho has been dogged by questions surrounding her decision to invest $7 million in county funds collected from property tax sales, announced Monday that she will not run for re-election this fall.
A federal grand jury on Tuesday began hearing testimony related to Barrett’s handling of the investments. According to reports in the Atlanta Journal-Constitution, Barrett took the advice of a Florida MetLife broker, Byron Rainner, and invested $2 million of county money in Provident Capital Investments Inc. on March 26, 2003, and $5.2 million in MetLife on April 28 of the same year.
The money for the Provident investment w as proceeds from property sales conducted by the sheriff’s department to settle county tax claims. The $5.2 million given to MetLife came from another fund controlled by the sheriff.

Both investments have come under scrutiny by federal prosecutors. The MetLife money has been returned, but the $2 million given to Provident has not been given back to the county.

Jail’s ‘State of Emergency’ Barrett declared a “state of emergency” at the jail in early March following the accidental releases of three inmates. Citing jail overcrowding, increased deputy workloads and staffing cuts, Barrett said the jail had reached a “breaking point” and emergency measures were needed.
Soon after that announcement, several attorneys and judges noticed the increase in the time it took to get a defendant out of jail following a judge’s order.
Miranda L. Gatlin, a staff attorney with the state court division of the Fulton County Conflict Defender Office, said the delayed release problem became “widespread” in the last month or two.
She filed five habeas suits at the end of March when she learned that five of her clients w ere in jail even though a judge had sentenced them to time served or the charges had been dropped. Four of those defendants remained in jail for two days after the judge’s order and one stayed locked up for five extra days. Gatlin said she’s had fewer problems since filing the habeas suits.
Attorneys also are protesting the practice of “blanket” strip-searches for arrestees at the jail. Claiborne said case law suggests the policy of strip-searching every arrestee is illegal.
In addition, defendants w ere strip-searched upon returning to the jail from court appearances where they were sentenced to time served, released on signature bonds or had their charges dismissed. Presumably, the deputies strip-searched the returning inmates to prevent the introduction of contraband into the jail. But attorneys say searches of people w ho have been given their freedom by a judge are unconstitutional.

Why the Delay in Inmate Releases?

As for the delayed releases, Dow ns cited several reasons. The number of people coming through the jail has increased. In 2002, releases averaged about 80 per day, while in 2004 the average is 112 people per day. In addition, the procedure for checking out inmates has been “tightened” because of the accidental releases.
Dow ns also observed that the flow of information between the jail and the courts needs to be improved. Currently, information is sent back and forth from the jail and the courts via e-mail before being manually entered into each agency’s respective computer systems.
County officials have implemented several measures to alleviate the problem in the short term. According to Dow ns, several representatives from the county’s criminal justice system have been meeting on a weekly basis for the last month or so in a bid to improve the situation at the jail. “The main thing is that we’re all working together, and it seems to be effective,” she said.
Deputies have been working overtime to speed up the booking process and that has helped reduce the number of people waiting to be released, Dow ns said.
Another county official looking to improve the jail, Fulton County Commission Chairwoman Karen C. Handel, said 17 new employees at the jail soon will complete training in the booking process.
Also, Handel said, the Georgia Department of Corrections has agreed to move 85 of the 200 state prisoners being housed at the Fulton County Jail. “These are all things we can do in the immediate short term,” Handel said.
To resolve the long-term issues, the county will convene an “independent panel of criminal justice experts” to search for solutions to the jail’s problems. Handel said she is helping gather names for the panel and will discuss the issue at this week’s commission meeting.
The chairwoman, who has publicly called for Barrett’s resignation, noted that the commission does not have any authority over the sheriff’s department but nonetheless may be held liable in legal action against the jail.
“That’s w hat’s so incredibly frustrating,” she said.
The short-term relief w as apparently too late to avoid a class action. Claiborne already had begun investigating Fulton County and interviewing released inmates and their lawyers by the time the changes at the jail were beginning to be implemented.

Same Problems, Different Cities

Similar circumstances led to the litigation in Los Angeles and Washington.
In 2001, Los Angeles County agreed to pay $27 million to settle five class action suits brought on behalf of inmates held beyond their release dates. The settlement covered some 400,000 people detained in Los Angeles County jails over a five-year period, about half of whom were strip-searched after their release order.
A 1998 case from the U.S. District Court of the Central District of California described the process for releases from Los Angeles County jails and cited two reasons for the delays. Fowler v. Block, 2 F. Supp. 2d 1268 (1998).
In California, releases were delayed because deputies had to make sure an inmate w as not released if there w ere outstanding warrants or the inmate w as supposed to appear in another criminal proceeding. “Thus, because there w ere several information sources to investigate and the Sheriff’s Department w as not endowed with an efficient and very effective computer system, the plaintiff’s criminal check w as both time consuming and laborious,” Judge William J. Rea wrote in his 1998 decision.
The w arrant checking process w as further exacerbated by the need to enter manually each w arrant received by the Los Angeles County Sheriff’s Department.
According to another case related to the five class actions, the sheriff’s department received a large number of warrants each day and “due to the high volume of w ants and holds received each day, the inputting process can, and often does, take between one to two days to complete. It is only after the inputting process is complete and the computer check run, that the LASD begins the administrative steps toward a prisoner’s release. Although no longer required to serve time, these prisoners must remain in jail during the inputting period.” Streit v. County of Los Angeles, 236 F.3d 552.
“In other words, the Sheriff and County needed to modify the appropriate records and files to reflect the plaintiff’s status as a ‘former’ inmate,” Rea wrote.
In cases pending before the U.S. District Court in Washington, two classes of inmates have been approved. One class includes inmates w ho were kept in custody beyond their release dates. The other includes those w ho w ere strip-searched after their release orders. Claiborne, the lead attorney for the plaintiffs in the Fulton and Washington suits, said the Washington cases stemmed from a series of administrative glitches and bad practices. Bynum v. Government of the District of Columbia, No. 02-0956 (D.D.C. filed May 16, 2002). Similar to the situation in Fulton, the courts in Washington used separate computer systems so that w hen inmates were sentenced, paperwork had to be entered manually into the jail’s computer. Making matters worse, Claiborne said, the paperwork in Washington did not always come back from the courthouse with the inmate. Detentions w ere prolonged further because Washington corrections officials were checking for warrants and holds after a judge ordered an inmate’s release.
In the suit against the U.S. Marshal’s Service and the city of Washington, Claiborne contends that the law enforcement authorities were conducting illegal strip-searches of female arrestees. Johnson v. District of Columbia, No. 02-2364 (D.D.C. filed Dec. 2, 2002).

Magistrates Frustrated

The lengthy booking process at the Fulton County Jail has caused problems not only for releases but also for intakes. For a time, the system was so backed up that inmates were being brought before magistrates for first appearance hearings w ithout being booked into the jail.
“It w as so bad that they w ere bringing people over before they’d been booked in,” said Fulton Magistrate Stephanie C. Davis.
Davis said the jail’s system appeared to improve in the last w eek, but, for the last month or two, inmates were coming to court without the proper paperwork. Attorneys scrambled to find the documents needed to hear the cases.
As previously reported in Creative Loafing, the practice frustrated one magistrate so badly that late last month he dismissed misdemeanor charges against approximately 20 defendants.

Magistrate Roy C. Roberts said the mass dismissal of charges turned out to be wrong legally (he should have given the defendants bonds and ordered them released from custody), but the move caught the attention of jail officials.

Last week, Roberts w as at the jail conducting first appearance hearings for felony offenders. Attorney Richard C. Wayne came to the
makeshift courtroom with a signature bond signed by Magistrate Michael B. Wallace at 9:30 the previous night. Through a paperwork error, the signature bond never made it to the proper authorities and Wayne’s client was placed on Thursday’s first appearance calendar by mistake. Wayne showed Roberts the signature bond and asked the magistrate to order the deputies to release his client immediately. Roberts told the Daily Report that he could order such a thing, but the deputies “can tell me to take a hike.”

Two hours later—and more than 15 hours after Wallace’s order—Wayne’s client w as released. “The jail does whatever the hell they want to do,” Wayne said afterward. Wayne’s experience notwithstanding, Roberts said the jail’s system for processing inmates and paperwork appeared to have been working better last w eek. “We are seeing vast improvements on the felony side,” he said.

Indeed, Gatlin at the Conflict Defender’s Office said last w eek that since she filed the habeas briefs, the majority of her clients have been able to get out of jail within 24 hours of a judge’s order.

“It’s been an improvement,” she said. “It’s not 100 percent better but an improvement.”