Ithaca Cortland Lawyer Shares His Favorite Phrases: "I Don't Know" and "It Depends"

I have been an attorney now for 14 years. One of the first things I learned in law school still reverberates in my head. People will forever have questions but unfortunately we may not always have a "good" answer. Legal Questions were asked in class, and the lawyer was taught to respond:

"It depends."

This answer may not satisfy anyone but it is the truth. Certain legal things (issues) depend on whether or not the facts of a given situation look black, white, or a shade of grey. Not everything is clear cut or definite, this is especially true in the practice of law.

We must often weigh, balance, assess, analyze, and look at things from different view points.

This is what I love about lay people practicing law. I am being facetious now but without CONTEXT legal decisions, laws, statutes, rights, and past precedents (law applied to the facts of a past case) are without perspective and understanding. This is the real danger with people looking up stuff on the internet. It is a good start but you need a guide, a counselor, an interpreter to place things in their place and time.

Placing Things in Your Head

I used to tell my young kids I couldn't explain certain things to them (usually sexual) because they did not have a shelf in their brains to place it upon. It had no place to go accept to fall out their mouths. That is why I give my clients a grand overview of the legal process so they have a timeline and a place to put legal events.

EXPERTISE IS HANDS ON

Yes, we need lawyers, just as we need doctors, just as we need plumbers. Professionals know what to do, and more impotantly what not to do in any given situation.

I have watched You Tube videos on fixing my toilet. It seemed simple enough, twist a few wrenches, and voila everything fixed. So off to Loew's I went . . .

DIY (Do It Yourself)

The truth was that the hands on "know how" of when that old nut and bolt wouldn't move, and my applying force to something that required finesse ended with me stripping the screw. My wife loves to remind me, hey you can't do everything great! Call in the expert. yeah, we need experts because without them we are lost. The job may often cost alot more than a stripped bolt or screw.

Which brings me to my second favorite phrase. I learned this in Chiropractic college:

"I don't Know"

Yeah, guess what, I don't know everything. I never have, and I never will know it all. I am continually learning, and the world and the law keep changing. That is the value of keeping up and staying current. Seminars, books, and conferences are not for credit hours to renew my licenses. They are picked for interest, and I am excited to attend them. I talk a lot, this can be good and bad, trust me, but I also listen to people. I try to learn something new everyday. Everyone is my teacher. I am forever a student of life and of learning.

I tell people if I don't know BUT I will find out. Sometimes New York law may state one thing BUT a judge or a District Attorney in a certain location interprets or applies something differently. This is not wrong or illegal just an opinion of how something should be. I must deal and work with these people as will my clients. Do I agree with everything that I see and hear? NO, but I must respect it and work with it.

This is where real world experience and not that which comes from a book really pays off. You can never teach experience, you have to live it. Just as you can't teach or explain being a parent, husband, or son, it is something to be lived and most of all felt.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Law, Sometimes it is Just the Timing of Things ( it can make a difference)

With the FIRST RULE of buying and selling of Real Estate it is so often a matter of the location of the property. Value of land and homes is based first and foremost on their location. I have done prior blogs on the legal phenomena (as location relates to law) of "Location, Location, Location" or the how and why of where something occurs (crime and/or injury) as being pivotal to it's outcome/result.

Today I would like to explore the SECOND RULE of value assessment. What something is worth is also based upon timing. What time you buy or sell is critical to the asset's value. This is also remarkably true in the legal arena. When you get charged (violation date), when you get suspended and/or revoked and/or settled (conviction date) can be crucial to your future issues. Sometimes I review a case, and the timing of a driving (or criminal) history is absolutely terrible. Sometimes people luck out, they just miss specific time periods, what I call being "out of the Zone of danger."

It's All in the Timing

Suspensions and/or license revocations are based on the number of negative events (violations, traffic offenses, misdemeanors, accidents, DWIs, etc.) within a given time period. Whether you have had a certain number of speeds, points, and/or accumulated negative units these are all marked along a linear spectrum of time.

There are very specific look back periods. For a potential New York State DMV license suspension and/or revocation this is 18 months. If you have 3 speeds and/or 11 points within that time frame, boom you are done. If some of these points are NEGATED and/or some of these charges can be changed can impact a final outcome greatly.

Trying to Game the System

Many have tried to outplay the DMV. They figured if they prolonged their cases (their pending charges) then they could change the timing and hence have NO suspension. The DMV is smarter than that. Violations are recorded (assessed) from the date they are charged NOT settled/disposed of.

RULE #1

So it is NOT the date of conviction but the date of violation that counts.

Licenses are Suspended at the Beginning of New York DWIs

Do you get credit for time served (license suspension time)? NO!

RULE #2

With a term (Court sentence) of license suspension and/or revocation the time period BEGINS at the final hearing/settlement/ date of conviction.


So whatever is the worst outcome/pain for you is usually the correct answer. There is more beyond these two rules, as to New York State charge enhancements, sentencing enhancements, and whether you can or cannot do certain programs (ie. the DDP, drinking driver program). Enhancement is a nice way of saying upcharge, and higher penalties.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

The How and Why of NYS DMV Medical License Suspensions

As a attorney who handles many car related matters I need to understand the New York State Department of Motor Vehicles. The New York State DMV has the power to suspend, revoke, require road tests, written tests, medical information, medical examinations, and medical tests of those drivers that they feel are medically impaired. Remember a license is a privilege. A privilege is NOT a right so the proof for license issues is a little bit better than the civil standard of preponderance of the evidence. It is sometimes referred to as the substantial evidence standard. On the scales of justice it is that slight tilt  either for or against you.

What is "Fitness" to Drive?

Many medical conditions can negatively affect the physical and mental abilities of motorists. These disorders can directly affect the driver's functional ability and safety. If a motorist has impaired motor coordination, and a slow mental reaction time the chance of a crash are much higher. Fitness encompass both mental and/or physical ability.

Who Determines the Fitness to Drive in NYS?

Determinations are made by the DMV's DIB (Driver Improvement Bureau) located in Albany, NY. Within the DIB is the MRU (Medical Review Unit). They have 9 Medical Review staff consisting of:
 3 board- certified Neurologists (called the "medical consultants"), and 5 License Examiners, and 1 Clerk. The Neurologists (medical consultants) work on a rotating basis (once per week) to review specific case files.

Who Determines Which Motorists are Reviewed?

There are three ways that a person can wind up being medically reviewed by the MRU.

1. First Time Applications for a driver's license and those renewing an existing license.

You must answer questions regarding any medical conditions you suffer from when obtaining a license for the first time or renewing a license in New York State. The questions range from: "have you, or are you receiving treatment for, or have you had any disabilities, or disabling conditions that are progressively worsening?" If you answer any of this in the positive, as in, "Yes I have or Yes I am experiencing or Yes my condition is worsening" are REQUIRED to take a medical form to their physician for completion and return to the MRU (Medical Review Unit).

Future license holders or those renewing must have seen that physician (been examined for that condition/problem) within the previous 120 days for that doctor to provide the DMV MRU any information.

2. If they are reported to the DMV by an observing authority, ie. police, physician. 

If the motorist has had CONTACT with a doctor, law enforcement, the Court, hospital, or therapist they can report to the DMV. Anonymous observations and reports are not valid for review purposes. Generally these reports occur because these authorities have OBSERVED IMPAIRED BEHAVIOR. Their doctors are under NO legal obligation to report their patients but many healthcare providers feel a moral obligation to report their patients as a public safety hazard.

I have seen within my own practice police officers, county deputies, and state troopers filing referral reports on motorists. In a great many of these cases the motorists caused accidents (single and multi-car), gotten charged with moving and/or other violations, or displayed erratic behavior. Some admitted to the police that they had taken excessive prescription medication, smoked pot, used OTC (over the counter) drugs in dangerous ways, and/or ingested other substances. Some have made statements that were clearly bizarre, and out of alignment with reality. Sometimes if the police do not have a case (of charges/offenses/crimes) that are worthy of being proven (ie. no blood test, no probable cause) they will still try to get the motorist off the road.

The Element of Surprise

The referral to the DMV MRU can come as a complete surprise to the motorist. A letter from the DMV asking them to go to their physician out of the blue was not seen (recognized) as out of the ordinary course of events. Caught unaware and confused these motorists will willy-nilly have their doctors fill out and send in these forms unchecked.

When they are sent a DMV letter of suspension many have called me in a state of shock and panic. What happened? Why did it happen? They rarely relate back the precipitating incident, police stop, or accident and the referral by the authorities (medical or law enforcement) for DMV review. Their prior run in with law enforcement months prior may in fact be not even memorable to them.

Police authorities would have to file the DMV "Police Agency Request for Driver Review" form. If there was an accident involved with their motorist contact they would also submit a copy of the accident report.

Law enforcement must specify within their report why they are making a REQUEST for REVIEW.


What specifically led them to believe that this motorist was functionally impaired?

• statements made by the motorist
• circumstances for the crash/accident
• observations of walking, talking, thinking, acting
• erratic, reckless, and/or dangerous vehicle operation 

3. Referral from Family Members

I have had clients turn in reports to the DMV. This is where their family felt they were no longer able to drive because of either mental (dementia) and/or physical and/or chemical issues. BTW A diagnosis of dementia in and of itself is not proof to lose driving privileges. The physician needs to state and explain far more than the just a diagnosis.

Sometimes these family referral were unfounded, and sometimes they were of real concern. Anyone can report you to the DMV Medical Review Unit. The referral must be made with a written report on the DMV DS-7 Concerned Citizen Form. Police use the DMV DS-5 form, and Physicians use the DMV DS-6 form.

NOTE: Once Referred there is NO INVESTIGATION UNTIL you are contacted by the DMV for a possible evaluation.

What Happens Post-Referral?

If YOU self report: licensed driver who is renewing
OR a first time license applier
OR the Police report YOU
OR a Doctor Reports YOU:

THE DMV has one of two possible options:

OPTION #1 You will be given a form to take to your doctor for completion. 

NOTE: Remember that there are "Different" doctors needed for "Different" conditions:

If you suffer from epilepsy or convulsions then this must be a certified neurologist or neurosurgeon.
If you suffer from anything else then any primary care doctor will be able to complete the form.
BUT the DMV review until can request (demand) any other certified specialist.

(a) The doctor must give dates, nature of your illness, medications prescribed, testing done, results from testing, diagnosis (what you got), prognosis (what's your predictable) future, AND answer

Can this person drive a car safely?
Is this person a risk to themselves and others?

(b) Episode (symptom) Frequency is evaluated:

If you have been episode free (without symptoms affecting you) for 12 months = Approved by MRU 

If you have had an episode (with symptoms affecting you) within the last 12 months then a review by one of MRU Board-certified Neurologists is mandated.

The following are typical conditions that may require a review by the MRU Board-certified Neurologist:


seizures
hypoglycemia
low blood sugar
head/brain trauma
syncope
heart issues/pacemaker/arrhythmias
sleep/apnea/narcolepsy disorders
stroke disorder 
diabetes

Having the condition (diagnosis) must be coupled with the impact the condition is having upon you and potentially your driving. There are unstable and stable diabetics, there are people with heart problems that are fully functioning, and there are people with a host of mental issues that can still operate a car safely. Determinations have to look at the long view. The big question is "are you now or will you be a threat to the motoring public in the future?"

OR

OPTION #2 The Testing and Investigation Unit of the DIB (Driver Improvement Bureau) may decide to schedule an INTERVIEW with you at a local field office. 

An investigator will determine whether you need to submit further medical information to the MRU (Medical Review Unit) and/or A Road Test. Usually you will have a road test but not before you pass the medical review. Re-examination can also include a vision test, a written test, and/or any other recommended test.

 The Final Decision by DMV

The DMV may impose any of the following:

1. Restrictions to driving: when you drive (daylight only), certain highways, etc.
2. Suspensions to driving: temporary periods of time
3. Revocation of driving: Cancelation of privileges UNTIL ? future medical proof, testing, re-evaluation
4. Periodic Medical Statements or re-exams plus collaterals (testing, reporting, treatment records)

These decisions may be appealed for further review and hearings.

Weaknesses in the System

One of the weaknesses in the DMV license review system is that it does not provide any specialized training to it's examiners in how to observe (and to determine) conditions that could result in impaired driving. This is only compounded by the fact that it relies upon many outside physician reports (with their resultant subjectivity), and the review of it's Medical Review Unit which only has a small percentage of files actually reviewed by a doctor.

Opinions: Everyone has One 

Doctors opinions are just that opinions. They are not always right. Some people may fall through the cracks of this governmental process. People are often mis-diagnosed, overly diagnosed, and basically misread. Driver impairment based upon medical issues can be a difficult thing to assess. If a determination is made without complete information, and the necessary (thorough and proper) testing then someone may lose a license privilege unfairly.

How can I discover who made the referral for a DMV review?

You can make a FOIL request to see your DMV medical file, and forms filed against you. A Freedom of Information Law request will disclose who turned in the form requesting a review of your licensure. This is usually a police officer or physician.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Lawyer says "Don't Look a Gift Horse in Mouth? or Maybe You Should?"

What the .... ? The old expression don't look a gift horse in the mouth comes from many hundreds of years ago when horses were given as gifts and exchanged regularly. If you were given a "gift" horse then you should not be inspecting it's teeth (as a barometer of it's health or value). You should be grateful for the gift "as is" and expecting nothing more. To look at it (or examine/inspect it) was the act of an ungrateful recipient.

The original latin:

From The Letter to the Ephesians, circa AD 400, which conatins the text 'Noli equi dentes inspicere donati' (Never inspect the teeth of a given horse). 

Which brings me up to today, I recently got a call from a parent whose child was in a car accident. The car was totaled by another driver. The accident was completely, 100% the fault of this other driver. The 

Big BUT

BUT ... The child was never examined, never x-rayed, never evaluated, never checked by any health care provider or practitioner. The child has had no diagnosed injuries, impairments, disabilities, medical bills, or anything relating to this accident. 

THE GIFT HORSE

The mother was offered $1,000 by the "at fault" person's insurance carrier. This to me is the proverbial gift horse. This is a gift that in my legal opinion has to be EXAMINED and QUESTIONED. This is because the acceptance of the gift has concessions attached to it. 

The Concessions

By signing a release (for the $1,000) this indicates that you are Failing to challenge the at fault driver (and their carrier) for damages. This would concede (give up) the right to pursue any future compensation. The statute of limitations is the time period you have to make a claim. In New York State you have three years to file a lawsuit for personal injuries as a result of a New York based car accident. 

Personal Injuries Require Proof

If you are pursuing a claim for pain and suffering damages in NYS you must first meet the NYS threshold. These are referred to as the "human loss damages" and you must prove them. 

RE YOUR INJURIES SERIOUS?

The certain criteria allowing an injury victim to receive pain and suffering money is called the “SERIOUS INJURY” threshold.   Many in NYS call it theBreak or Bruise law. IF You have a break your'e in (you collect) BUT IF you got a bruise (you don't collect). In order to meet the SERIOUS INJURY threshold, the injured person has to show (to prove) one of the following:

1. ·      A personal injury that results in death;
2. ·      Dismemberment;
3. ·      A significant disfigurement;
4. ·      A fracture;
5. ·      The loss of a fetus;
6. ·      Permanent loss of use of a body organ, member, function or system;
7. ·      Permanent consequential limitation of use of a body organ or member;
8. ·      Significant limitation of use of a body function or system; or
9. ·      A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

In this case we have a fast cash offer of $1,000 to go away and never come back. It is not based on anything but a hunch and the likelihood that this child may have injuries in the future stemming from this event. In my opinion without getting checked out now, and within (or over) the next few months

this is a BAD IDEA. Don't sell your body or your health cheaply, they are your wealth!

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland Lawyer Asks If YOUR Miranda RIGHTS are Dead?

As a DWI defense attorney by far the most common question I am asked is, "if they failed to give me my Miranda Warnings, can my case be dismissed? Can we just get them (the prosecution) to toss everything, ie. the stop of the car, the arrest, and the breath test?

Fast answer , NO!

First, What is/are the Miranda Warnings?

Almost everyone knows them from TV and movies:

1. You have a right to remain silent
2. Anything you say can and will be used against you in a Court of law
3. You have a right to have an attorney present both before and during questioning
4. If you cannot afford to hire an attorney one will be provided to you

Second, What if the police fail to tell them to you?

Then "maybe" some of your statements to the police cannot be used against you. Miranda only relates to YOUR RIGHT TO REMAIN SILENT. It relates to what you say to law enforcement. As a collateral issue you have a right to an attorney as it relates to questioning (interrogation). I have said this before, the police do not have to be honest with you when conducting their investigation. They can lie, make up stories, and deceive in the interests of justice.

Lastly, Are Your Statements to the police really protected under Miranda?

A recent (2010) SCOTUS (the Supreme Court of the United States) decision, Berghuis v. Thompkins (docket 08-1470), basically says Miranda is Dead. You have to state your rights to the police to have any. You have to say "I want a lawyer" or ""I have a right to remain silent." This case stands for the proposition that anything you say is "voluntary" UNLESS and UNTIL you state otherwise.

Like most things these days, your inaction in invoking your rights, of demanding what is truly yours, will in the end hurt you. Or in the words of a famous philosopher, "if you snooze you lose."

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland Lawyer Takes a First Class Beer Flight to Oblivion

MY First Class Beer Flight
at Bandwagon Brew Pub, Ithaca, NY

I love little downtown Ithaca. A short walk from my home/office is The Commons. Many restaurants are a mere three block walk. So this is perfect for having a drink, and walking home. Being a DWI lawyer in a small town makes this a safe and easy arrangement.

I recently discovered a little gem called the BandWagon Brew Pub. It is located on Cayuga Street, in a basement spot right next to the old Clinton House. It has high quality food, pleasant service, and a comfortable decor. It is literally around the corner from the State theatre, and a block from our own independent movie house, Cinemapolis. My daughter Cali is an aspiring actress. She was in the Running to Places (R2P) production of Oklahoma at the State so the Bandwagon or Wagonwheel (after a few) was my spot for some on the job DWI legal defense research pre-play this Friday.

The Bandwagon has a nice eclectic menu but more importantly a wide range of crafted beers. I have had many a wine flight but have only tried a cursory beer flight about a decade ago. My bartender encouraged me to go for the "First Class" flight. She poured me 5 nice glasses of beer (not really).

1st This STUFF is Strong!

They were most definitely dark and full bodied. This was no Schlitz (the King of Beers) flight from my younger poverty stricken college years These brews had been "crafted" with care.

All I can say is, "Holy Frankenstein," was this stuff strong. In Starbucks lingo, "full bodied" but man oh man this was no drinking beer but really sipping beer. One "beer" in particular really knocked my sox off (yeah I'm old, get over it), called the Backburner.

2nd, How can you call this stuff beer?

It was a 14% Bourbon Barreled zombie blend. My head was immediately feeling the effects. I had to take breaks between sips of that and the four other "lesser" beers called IPAs. India Pale Ale did not exist in my frat days. We had Rolling Rock. That was the extent of my beer acumen, St. Pauli Girl was for when we had a few bucks, or whatever was in our tap (we had an old 50's frig in our house), or whatever we got cheap (on sale).

I have come to learn that the Backburner is really an Imperial Barley Wine Style Ale.

http://beeradvocate.com/beer/profile/3818/36185/

My big lesson for when I have DWI clients tell me of their brew pub adventures or IPAs or any of these new blends is I must think they were NOT drinking BEER as I used to know it.

One 16 oz. Backburner may be like 3-4 drinks, that would be a .06 to .08 BAC (blood alcohol concentration) in many people. Being Mindful of the legal limit of .08 BAC I see an issue, especially without eating any food and/or within a short period of time.

Alcohol by Volume is a concept that many have a difficult time reconciling.

1. Always consider the strength and the volume of what you are drinking.
2. Always consider the time of day/night and the time of consumption.
3. Always consider that it takes approximately one hour per drink (.015-.02BAC) to metabolize.
4. Always consider that the effect of any drinking on YOU has to factor in your bodyweight, genetics, food consumption, body cycles, and gender. 

My You Tube video, "High BAC DWIs: How Much Alcohol was Really In Those Drinks"

http://www.youtube.com/watch?v=04AlFgfRUoQ&list=UUBwBPLfPQYrF6MC3STcNOsw&index=6&feature=plcp

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland Lawyer What is the Price of Liberty in New York?

I live and practice law in Ithaca, NY. Ithaca has many reminders around town about how this area feels about civil rights, and the freedoms we hold near and dear.

Ithaca Parking Garage
Tioga Street, Ithaca, NY

The quote on this mural is from famed lawyer, advocate for Indian rights, and abolitionist Wendell Phillips. He was noted for "plain speaking" and strong oratory. This mural lies less than 50 feet away from Ithaca Town Court, and a block from the Tompkins County Courthouse. How apropos?

My favorites of his many quotes:

"Eternal Vigilance is the Price of Liberty"

"One on God's Side is a Majority"

What is the real price or cost of anything?

A lawyer must be an advocate for his client's position. Defense lawyer's are not in the business of justice. Justice is supposedly the job of the Judge and the Prosecutor (District Attorney).

Unfortunately, these days we have as we have in the past a system (of government) that can be overly oppressive and punitive. Often I am up against policies and positions. People can get lumped into categories. Is this justice? The road to hell is paved with the best of intentions.

Their (government) intentions are to keep us safe but at what cost? Where is the realization that we are dealing with people, with human lives and faces that can fall victim to a cold and sometimes harsh rule of law.

It has always rung true that the government and all people with positions of great authority must be kept in check. We are supposed to have a government of "checks and balances." The legislature makes the law, the executive branch executes the law, and finally the judiciary interprets the law.

Lawyers help people navigate through the system of checks and balances. Assist them in understanding their rights, their options, and their obligations within the process. Informed decisions are "fully" formed (understood) decisions. Three things the lawyer must do:

1. Provide Information (knowledge of the law). This is a corner stone.

I believe I must help my client understand the law "as it relates" to them and their situation.

2. Help them understand what the Burden of Proof are for different things?

• In the criminal case (misdemeanor and felony level offenses) the government has to prove everthing to a "Beyond a Reasonable Doubt" standard.
• In the license case (DMV and/or state board license) the government has to prove to a "substantial" evidence standard. This is abit higher than the civil standard of "preponderance" of the evidence or 51% vs. 49% on the scales of justice.

3. Review their case for factual and/or legal defenses. What are the strengths and weaknesses?

Cases can have a combination of factors that need analysis. I begin with the venue, where the case is? Then move to the facts beyond change, what happened? Then to the applicable law, and legal process.

So Eternal Vigilance to me:

Eternal is taking (accepting) "Responsibility" as an attorney. My response to the call, the threat, and the power. Constant guarding of those I take on as clients. Protecting them to the best of my ability.

Vigilance is taking action. Proactivity includes review, assessment, and a plan. Like chess I must anticipate the moves of my opponent. I must be where they are going before them. I must anticipate, and then prepare for that.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

What's the Number One Reason Clients Divorce their Lawyers?

Divorce is not just between a husband and wife. People can divorce their siblings, their parents, their children, and even their attorneys. Technically a divorce is a lawsuit, it is the use of litigation to sever a legally binding relationship. But divorce is also a parting of the ways, a division, and a separation of the parties in ANY relationship. Your relationships are one of the most important aspects of your life. They can be both a blessing and a curse.

To me, your state of mind, your state of practice, and your state of sanity (mental and physical health) is all about your relationships. If your relationships are working, then things are generally good (stable, balanced, and healthy). If your relationships are suffering, have huge periods of friction and conflict then things are bad all the way around.

Three MUSTs To a Great Relationship 

1. Relationships require effort.  

People that tell you that if it's "right" then it's effortless are full of BS OR they have not been married with children OR have not been a long term committed relationship with any significant life events. Effort means caring about the other person enough to "get" them. What is important to them? Which by the way may mean absolutely nothing to you. My wife loves quilting. If I was to negate that, think that that activity is stupid, that it is a waste of time and money, you tell me where would I be (literally and figuratively) ... out on the street. Done, over, I am toast. Because everyone has a different set of values. What they feel or think is important. Is it valuable to them? What is valuable to them? If you are communicate with this person you must speak in terms of their values, and their importance level.

2. Relationships require communication.

I have people contact me that are either currently unhappy with their lawyer or have just gone through representation and feel as though they know nothing about their case/situation. People must communicate to have a relationship. This is the number one relationship killer, the Lack of continual quality communication.

Communication is quality and quantity

You don't have to always speak a lot to say a lot. You also do not have to speak everyday. But that said you must focus your attention on the issues. Everyone wants something. I have said this before. What they want is for their values to be met. If they care about their family, then how can you assist them with that? If they care about their freedom, how can you assist them with that? "What have you done for me lately," is more than a song lyric. Lately is time sensitive but what you do is where quality of actions lie.

I believe people don't always like the truth but without it you are headed for trouble. Living in a juvenile mindset about your issues is not going to help you solve anything. I have lost clients because of this honesty but leading people to believe in a fantasy is a recipe for disaster. Facing reality is not pleasant but it is healthy. 


I do not cringe when my clients call, or not want to call them back. 


WHY? Because if you start with truth (factually and legally), lay a great foundation (knowledge), and face reality head on (proactively) with a plan of action then you are in a healthy relationship.

Attorneys Must be Excellent Communicators to be Excellent Counselors

I recently had a person tell me that their attorney was not returning their calls. On top of that the attorney dumped by email 40 pages of discovery documents (police reports, etc.) and a plea offer  
from the prosecutor with NO explanation, and a simple call me to discuss.

Now to make this situation worse, this attorney never laid out the framework for their case (how the process works) or a legal strategy or any of the realities of potential defenses (factual and legal) or what the client was facing. Now we have a client that is not only frustrated but scared. Fear comes from the unknowns. What comes first, second, and last makes me feel better. What can happen? What will happen? We don't always know everything but to get clarification (get clear) on any parts is calming.

A Simple Formula

More unknowns = more uncertainty = more fear.  The most basic thing that any attorney can do is bring out some certainty. What are the ranges? What is likely? What is unlikely? What is a fantasy? Can I justify anything? What can I do to help you? I like to answer the questions before the questions. If a proper groundwork is laid out in the beginning then we have a firm foundation. This is true for building a house and for building a relationship.

Three Must Haves in Attorney- Client Communications

1. The Before you go to Court communication
Discussions Prior to starting the process. Proactive steps you can take. What to expect?

2. The During (pending) Court process communication
Discussion about Pre trial conferences, discovery of evidence, facts and legal circumstances, plea offers, trail considerations, potential hearings and motions. The detriments and/or benefits of all of it.

3. The after Court (post sentencing) communication.
What are my conditions/obligations/terms? What will the future hold directly and collaterally?

3. Relationships require feedback. 


I ask my clients and my wife how they are doing. As we go along with anything, everything is in process, a progression, life is either moving forward to another conclusion or we are falling behind. Do we add or do we subtract from this process by our acts or omissions? Our partners are there to assist us with these decisions. Changes can be made with less cost and with ease if we have feedback. Monitoring feedback allows us to anticipate needs and to allay fears BEFORE they arise.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Lawyer New York Felony PSI's: Understanding the Pre Sentence Process for Felonies

We live in a world of acronyms. This is especially true within the field of criminal law. Everything has a shortcut, a lingo of sorts used by the Courts, defense lawyers, and Judges. Afterall who wants to spend their lives using too many words, kinda funny when you think about it because all the above parties tend to live and breathe by the word. Some attorneys even charge by the word.

FAQs about the Felony PSI = Pre Sentence Investigation

When is a Felony PSI ordered?

After every plea of guilt to a felony level crime or a finding of guilt to a felony level offense the Court (Judge) MUST order a PSI.

How do we usually get to the Felony plea?

The majority of felony pleas occur by way of an SCI (Superior Court Information). The SCI in the best of terms is an agreement, a contract of sorts between you, and the DA. It is a deal, a plea bargain. The terms of the agreement will include a recommendation, sometimes a high (maximum) or a low(minimum) amount or number of county jail, state prison, community service, fines, etc. The SCI plays an important part of the process to save the Court and the District Attorney time and effort

Why isn't my Felony case staying at the City, Town, or Village Court?

Felony level cases (charges) have to be heard in County Court. In NYS the lower level (municipal) courts only have jurisdiction (authority) over crimes (criminal and traffic offenses) up to the misdemeanor level. Misdemeanor crimes can generally be punishable by up to one year in county jail. 

How does the Felony case move to the County Court?

All criminal cases first begin at the lower level (city, village, or town). If felony level charges are brought (leveled, upcharged) either at the onset (on arrest) or later on they must proven (PC = Probable Cause) to a Grand Jury of 16 people in order to INDICT for this level of crime. The DA MUST Bring an INDICTMENT within 6 months of the initial appearance.

The other way for the case to move to the County court with Felony charges is if you agree to the charges with a plea deal (the SCI). Whether by Indictment or SCI the lower Court will transfer all paperwork to the higher level Court.

Why was I arraigned twice ?

There is an arraignment at the lower level court and then when Felony charges are brought an initial appearance (arraignment) has to occur at the County Court. Bail or ROR (release on your own recognizance) will be decided by each Judge at each stage. More serious offenses have more exposure (potential punishment) so they may require assurance of your return to Court.

Who does the Felony PSI?

The probation department in the county you have residence must perform the investigation. This is true even if you are residing in a hotel or someone's home. This may create confusion, and add time to the process because the NYS county where the offense was first committed must contact their probation department who in turn transfers the information and the investigation to the NYS county of residence.

How Important is the Felony PSI?

It is vitally important to the outcome of your case, which is the final sentencing of the Judge. This is because the Judge and the DA depend on the Probation Department. They do not have the time or the incination to objectively uncover your life history, make an assessment of your needs, and to determine whether or not you are a candidate for "pure" rehabilitation and/or harsh or lenient punishment.

How do you prepare for the PSI?

With Felony PSIs I believe you must be ready to own what you did. This is the time to accept responsibility. The expression of true remorse that is sincere and heartfelt for whatever has occurred cannot be downplayed.

Seeking the right help, whether it is in the form of mental counseling and/or chemical addiction/treatment programs shows you are dealing with the cause of your issues. Probation and the Courts are often in the business of risk management. They do not want to see you fail in the future. They will expend time and resources to assist you.

How will I know what to do, say, and be for my Felony PSI?

You and your attorney should discuss a game plan right from the Get-Go.
This will include what you are going to do from the minute you are charged, to the minute you go to the PSI. How you live your life? How you spend your time? All of this will be under close scrutiny.
Getting out your complete life history to your attorney may uncover some good quality points. How to package this, and when to send this to the Judge and the DA are a matter of timing and strategy.

When it comes down to the final sentencing, it is your attorney's ability (and sometimes) yours to articulate your position with emotion and depth of heart.

I had a Felony DWI case with a construction worker last year. It was a second Felony, and the man was clearly struggling. He was looking at hard time in State Prison. He never got to rehab or treatment because he was always working, always supporting his family. The DA was jumping up and down on a year, no less. My story to the Judge went something like this:

"Your Honor, Mr.     has been living between a rock and a hard place. Admittingly he needs help, and yet the help he most surely needs means that those he loves will go unprovided for. We ask that the Court not punish this man for loving his family but help him get the help he needs ..."

It goes on past there but I think you get my point not everyone who is an alcoholic or that makes a mistake in judgment needs to be hung up to dry. There is abalnce point where the Courts, Judges, and DAs must tread to bring a sense of humanity to what they do. They are in the justice business and it is never fully served unless the cause is addressed. BTW the Judge came back with 90 days in the county jail and a treatment program on the above matter.

My disclaimer, just because that was the result in this case does not mean that I get that or any special result in any other case. Prior results do not always equal future results. I do promise this, I do the best with whatever is in front of me.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

New York DWI Defense Means Holding the Police to Higher Standards

In my DWI defense practice over the years I have cross examined numerous police officers, state troopers, and county deputies. This occurs at administrative DMV hearings, Court suppression hearings, and trials. To cross examine anyone is both an art and a science. It is a way, a tool to get to the truth. The truth of what they did or did not do, what they saw or did not see, and what, if anything is in dispute or disputable. Challenging their investigation is a good way to test the waters,

If law enforcement is to do their job at a higher level then I am there to hold them and their procedures to a higher standard. Standards are more than a word, it is a term of art in DWI defense because they are NOT just called the Field Sobriety Tests, they are in fact the "Standardized" Field Sobriety Tests. 

Testing for sobriety has been around for many decades but "standardized" testing began in earnest in the 1970's. Dr. Marcelline Burns was commissioned to come up a battery of easily applied tests that could quickly and accurately gauge a motorist's sobriety at roadside. The final battery of three DWI tests she and her research team came up with are:

1. The walk and turn
2. The one leg stand
3. The horizontal gaze nystagmus test

I have a transcript from a colleague, Bruce Kapsack, a prominent California DUI lawyer who deposed Dr. Burns concerning these DWI tests. I paraphrase Dr. Burns, "if the tests are going to have meaning and be objective measures then they MUST be administered in a STANDARDIZED way."

Standardized means testing done the exact same way every time.
Standardized means using specific criteria.
Standardized means using standardized instructions.
Standardized means specific scoring.

These are still the same exact sobriety tests for the past 35 years.  They are used in all 50 states. They have to applied, administered, instructed, directed, and scored in a specific manner, hence the term STANDARDIZED. Have I made it clear yet that the police can't willy nilly say do 10 steps instead of 9 steps or hold this position for 40 seconds instead of 30 seconds. The criteria are specific.

As to officer training, the SFST manual states:

"Upon completion of the training the candidate must demonstrate the ability to administer the SFST's in the approved sequence and appropriately document and interpret the results."

Why Must We Have Proper Police Administration?

"It is necessary to emphasize this validation applies only when the tests are administered in the prescribed standardized manner. The standardized clues are used to assess the suspects performance, the standardized criteria are employed to interpret that performance. IF any one of the standardized field sobriety test elements is changed the validity is compromised."
(P.VIII-19, SFST student manual, HS 178 R9/04).

Validity is COMPROMISED!  So the tests become invalid and hence the results from the tests invalid.
So maybe we really have sobriety, a sober person because the tester did not follow protocols?

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com