Criminal Court

In all criminal cases, the defendant is presumed to be innocent. That means he or she may not be convicted unless proved guilty beyond a reasonable doubt.

A criminal case begins when a prosecutor files formal charges, a person is arrested, or a grand jury issues an indictment.

If a defendant, the person accused of a crime, is in custody, he or she has the right to an arraignment within 48 hours of being arrested. At this hearing the judge will officially tell defendants about their constitutional rights and explain the charges against them. Also, bail (property temporarily given to ensure that a person released from custody will return at an appointed time) may be raised or lowered. In order to be released without paying bail, defendants may request to be released on their promise to appear. This is called "on their own recognizance" or "OR".

If a defendant who has been charged with a felony or a misdemeanor cannot afford to hire an attorney, the court will appoint one from the public defender's office. (The court does not appoint a public defender in infraction cases since they do not result in jail or prison terms.)

At the arraignment defendants will be asked to plead to the charges against them: guilty, not guilty, or, in some cases, nolo contendere (the person does not contest the charges, which legally is the same as a guilty plea).

Success In Small Claims Court

You've seen the TV shows with Judge Wapner, Judge Judy and the like ruling in small claims court. Beyond TV-land, how do you decide if your dispute with a landlord, neighbor or car repair shop is worthy of small claims court?

The Basics
Small claims courts limit claims for damages to a certain amount, ranging from $2,500 to $5,000. Small claims cases typically involve fender benders, property damage, disputes over security deposits, personal debt and lousy consumer goods.

Before heading to small claims court, it's a good idea to try these alternatives:

Write a letter asking to negotiate a compromise
Resolve your claim through your local Better Business Bureau or state attorney general's consumer protection division
Arrange for mediation through a neutral third party in a neutral setting — but you need the other party's cooperation.
Getting Help
While many small claims courts don't allow attorneys in the courtroom, consulting with a lawyer before even filing your case can help. A lawyer can brief you on the law in your state and give specifics, such as any statute of limitations. A lawyer also knows if you can ask for extra damages under state law. For example, some states allow someone harmed by a consumer protection violation to collect up to three times the actual damages.

A lawyer may also help you figure out if you'll collect any judgment. If the other party doesn't have a job or any assets, a small claims case may be a waste of time.

A lawyer can also help you organize your case, and give you tips on strategy and tactics.

If you can't afford a lawyer because of the small amount of money involved, check out free legal assistance from a local legal services office or a law school legal clinic.

Child Support

WHAT IS A CHILD SUPPORT ORDER?
A Child Support Order is a document from a court that states (a) when, (b) how often, and (c) how much a parent is to pay for child support. A Child Support Order is typically part of a divorce decree or paternity judgment.

WHO CAN BE ORDERED TO PAY IT?
A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.

HOW IS THE AMOUNT OF CHILD SUPPORT DETERMINED?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.

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Consumer Complaint

Each year, millions of consumers experience problems with a product or service. There are several strategies for resolving those complaints. First contact the seller. If that does not work, contact a consumer complaint agency. If that does not bring satisfaction, consider other options, such as arbitration or filing a lawsuit. This article begins with the assumption that you do not yet need a lawyer to help you. If you are sure you need a lawyer open "How to Hire the Right Lawyer" and "Understanding the Legal Fee Agreement." There are many lawyers with many different levels of expertise and experience, who practice in widely different arenas. You will want someone with specific experience in prosecuting a specific case for you. These two related articles explain how an experienced lawyer goes about finding the "right lawyer" for a particular case and what you can and should expect in negotiating a contract for legal services.

CONTACT THE SELLER
Whether your problem is a defective hair dryer or a leak in your newly installed roof, the first step in resolving your problem is to contact the merchant who sold you the product or service. Most consumer complaints are settled at this level.

But first be prepared.

Always make a record and document what went wrong with a letter, by taking photos or by having your neighbor confirm that the ceiling under the new roof was leaking after the rain. Save boxes, brochures, and other written materials that were provided by the seller or contractor.

Mistakes To Avoid Before You Hire A Lawyer

Finding the "right lawyer" is a great challenge, even for lawyers themselves. When you have a medical problem, a doctor will help decide whether you need specialized care and assist in providing immediate and necessary care. On the other hand, when you are in need of legal assistance, you are on your own. Few states recognize a vast range of legal specialties and outside of the Yellow Pages there is little readily available information to help in the selection of an experienced lawyer. Unfortunately the advice offered by bar associations, such as The State Bar of California, is so general that it is of little value. After you have read this article and the specific advice provided here, open The State Bar of California's advice on how to hire a lawyer [http://www.calbar.org/2con/3conhowc.htm] and compare. It is a well intended piece but it is so general and lacks specific recommendations that it is not very helpful. The purpose of this article is to provide specific advice and to explain how lawyers find the "right" lawyer.

Often, people begin looking for a lawyer to represent them when they are confronted with a crisis. They may be dealing with a family death, serious injury, divorce, or criminal charge. Many times it is easiest to choose a lawyer who is friendly and supportive, without conducting research into his or her background and experience.

Choosing a lawyer simply because he or she is understanding may lead to later dissatisfaction. While the Yellow Pages or a television advertisement may be a good place to start, keep in mind that such sources are merely that and only a starting place.

Lawyers should be selected for their expertise and experience in specific categories of cases. The "right lawyer" is the person who has substantial experience handling a case very similar to yours, who can and will take action at once. She or he does not have to "look into it," "think about it and call you back" or "check the most recent court decisions." The "right lawyer" knows what to do immediately, acts effectively and with little wasted effort or wasted expenditures of your money.

Under what circumstances should I hire a lawyer?

If you are accused of committing a crime, charged with drunk driving (DUI), or party to a law suit, you definitely need a lawyer. You should contact a lawyer right away, especially if there are witnesses to interview and/or evidence to gather. A lawyer can also help you avoid legal problems, as well. For example, you can file for a divorce or file for bankruptcy by yourself, but a lawyer can help you avoid legal issues that may arise due to changes in laws or if any other legal complications arise. A lawyer's advice can also be invaluable if you need to sign an employment or contractor agreement, or if you need to sign a contract or agreement to buy a house, a car or make any other major purchase. Legally binding contracts and agreements have a lot of jargon you may not understand. Hiring a lawyer to help you through these contracts could save you a lot of money and prevent legal complications that could arise later on.

Hiring a lawyer will prove to be a valuable investment if you plan on starting a business with a partner, forming a limited liability company (LLC), or forming a corporation. There are a lot of legal issues involved with starting a business, particularly when partners or stockholders are involved. Having a lawyer will save you a lot of time and legal hardships, not to mention the fact that the lawyer will be able to better determine what business formation is best suited to your needs. These are just a few examples of how lawyers can help you understand your rights and solve legal problems, many times before they become problems.

Federal Equal Employment Opportunity (EEO) Laws

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisal against federal employees and applicants. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel practices, which are designed to promote overall fairness in federal personnel actions. 5 U.S.C. 2302. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions can not be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).

MINIMIZING YOUR RISK OF BEING CONVICTED OF DUI/DWI

When questioned for DUI or drunk driving before arrest, you are not in custody for purposes of Miranda warnings. If you politely refuse to answer any of the cop's questions concerning the DUI / DWI investigation, either before or after arrest, then there won't be any statements that can be used against you in court.

Field Sobriety Tests are completely voluntary. If you perform them, you may be arrested anyway. It may be better not to give the cop evidence that will be used against you in court. You can politely refuse to do the field sobriety exercises.

If you are older than 21, refuse to take a preliminary alcohol screening test. This on scene breath test is completely voluntary and you have the absolute right to refuse this type of breath test.

When given a choice of a blood or breath test after arrest, choose the breath test if at all possible. It is more unreliable than blood.

If no breath test is available, choose a blood test. While you can refuse a chemical test, the DMV penalties are greater for refusing.

Contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety.

Always be polite and respectful to the police officers. How you are perceived by a jury is extremely critical.

Some jurisdictions video the arrest, breath testing and/or booking process. Always be on your best behavior.

Make a detailed list of all the events before being stopped up to and including being released from custody.

Retain an experienced DUI / DWI drunk driving defense attorney to represent you. Only an experienced DUI defense attorney is able to spot your favorable issues and present them to a prosecutor, judge or jury.

How do I Find a Good Lawyer?

As with any profession, there are many lawyers to choose from. Take the time to do your homework before hiring an attorney.

How does someone go about finding a good lawyer if they don't already know a good lawyer, and perhaps have never needed a lawyer before? This FAQ will talk about different ways to find an attorney, without getting bogged down in too much detail about specific types of cases. Whatever method you use, remember - the lawyer is your employee. That lawyer has special legal knowledge, otherwise you would not need to hire them, but they are not in total control of the case - it is your case, not theirs. On the other hand, the lawyer is responsible to you and the court system to make sure that the actions that he or she pursues are valid claims. No lawyer should represent a client who just wants to sue for the sake of hurting someone. A lawyer's job is to analyze the situation and determine whether or not there are grounds for this action and fully inform you of the chances of a successful conclusion.

The best way is the old-fashioned way: personal referral and word of mouth. If you know any lawyers, even if they don't handle your type of case, ask them for recommendations. Ask friends, family, clergy, people at work, union officials, club members, at the corner tavern or beauty salon. You could also ask for the name and telephone number of the company lawyer for your employer. Business lawyers very often know who the best matrimonial, personal injury or bankruptcy lawyers are in their area. Make sure that you interview two or three lawyers before making a decision which one to retain.

If you're looking for a trial lawyer, ask for recommendations from friends and relatives who've recently served on juries. If you're looking for a real estate lawyer, call a title company and ask them who they use. For a domestic relations lawyer, ask the deputy court clerk in charge of domestic cases. Lawyers are the best source of information about other lawyers. Establish a relationship with a lawyer before some big emergency comes up and have him or her do some little things for you, like prepare a will, handle a speeding ticket or a residential real estate deal, review a contract, form a closely held corporation, etc. Is he or she responsive? Understanding? Prompt? Does he or she explain things clearly? Does he or she keep you informed without being asked? If the lawyer doesn't know the answer, does he or she admit it and then go find out for you? Then, when you have a big legal problem, you won't have to rush out and interview a bunch of strangers. You've already got somebody you can trust. If he or she can't handle the big matter, he or she can find you the right lawyer who can.

STATE LEMON LAWS

If your new car is spending more time in the shop than on the road, you may be able to get relief from your state's lemon law. These laws are designed to ensure that new-car buyers aren't stuck with manufacturers' mistakes.

Lemon laws in some states cover leased or used vehicles as well as new ones. To find out about the lemon law that applies to your car or truck, contact the consumer affairs office or attorney general's office in the state where you bought the vehicle.

Generally, lemon laws allow a car owner to seek a refund or replacement if a vehicle has a defect or condition that substantially impairs its use, market value or safety, and the defect is not fixed within a "reasonable" number of repair attempts--usually defined as four repair attempts or 30 days out of service within the first 12 months or 12,000 miles of ownership. (In some states, the lemon law applies for different periods; see the table on the next page.)

Arbitration is state-run in Connecticut, Florida, Georgia, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Texas, Vermont and Washington. In other states, arbitration programs are run by the automaker, the Better Business Bureau or the National Automobile Dealers Association.

In most states, you present your case to an arbitration board, either in person or by telephone or letter. The automaker also presents its side. If you prove your case, the arbitration board can force the automaker to buy the car back.

The automaker is usually required to abide by the arbitrator's ruling if you win. But if you're not happy with the arbitrator's decision, you can usually still take your case to court.

5 Tips for Avoiding Legal Problems

Arm yourself with basic knowledge of business law so that you’re alert to your company’s obligations and rights.

Practice prevention. Have your attorney review contracts and agreements before they’re signed.

Get your attorney’s opinions on documents you have drafted—such as employee policies—before you put them in place. You want to make sure they meet the requirements of the law.

Familiarize yourself with trademark and patent laws so that you don’t violate them. Learn how to apply for a trademark or copyright should you need to do so.

Understand the law as it pertains to your organizational structure. Your legal obligations as a C corporation, for example, will differ from those as a sole proprietor.

Tips for Keeping Your Legal Bills Down

A law firm partner is going to bill at higher rates for time spent on your case. At the same time, though, having a partner work on your matter may actually be cheaper in the long run if it requires a high level of expertise, as it may take the partner less time to resolve a legal problem than it would an associate who has a lot less experience.

Lawyers typically bill for telephone calls. So make sure you have a good reason for calling your lawyer before you do so. It is sometimes a good idea to try talking to the lawyer’s secretary or even a paralegal to see if you can resolve the issue at hand rather than talking directly to the lawyer.

Lawyers bill for travel time and costs. So if you’re given the choice, plan meetings at your lawyer’s office rather than insisting that he or she come to your office.

Your lawyer should provide you with an itemized bill that gives detailed information on how you are being charged. While every law firm does things differently, many of them charge not only for lawyer time but also for time spent by paralegals, legal secretaries and other support staff. You can use the information on an itemized bill to decide how to communicate most effectively with your lawyer’s law firm without running up the legal bills.

The more time a lawyer has to spend on preparing a case, the more you are going to be charged. You may want to work on developing an effective working relationship with support personnel, with the goal of using your own time to help them work up the case and keep legal bills at a minimum. (This does not mean trying to do all the work yourself and then simply having the lawyer sign off on it.) You have to defer to the discretion of your lawyer, because it’s sometimes easier for a lawyer to develop his or her own work product from scratch rather than trying to revise something that the client has already tried to do on his or her own.

When do I need a Lawyer?

Many people believe they need a lawyer's services only to solve a problem or to get out of a difficult situation. Often, the best time to see a lawyer is not when you are in legal trouble, but before that trouble occurs. Preventive legal work is one of the most valuable services a lawyer can perform. By eliminating potential problems, preventive legal work can save you time, money and needless worry.

Some of the circumstances which may require professional legal assistance are:

Buying or selling real estate.
Signing a lease or contract with major financial provisions.
Marriage, divorce or adoption.
When a lawsuit is brought against you, or when you want to bring a lawsuit.
If you are arrested or charged with a crime.
When starting a business.
Planning for the distribution of your property after your death.
When you have been injured, either on the job, or in an accident, or as the result of another person's negligence, or because of a defective or unsafe product.
When making an appearance, application or appeal to a government agency or board.
When planning a living will or durable power of attorney for health care.

How do I select a lawyer?
If you need legal assistance but do not have a lawyer, there are several sources that you may use to help you locate and select a lawyer:

Recommendations from friends, family members and co-workers can be helpful, particularly if the individual you ask for a referral has had the same type of legal question as you have.

Legal Services offices, also called Legal Aid in some areas. These are federally funded programs which offer free legal services, in civil matters only, to individuals who meet federal poverty guidelines. There are headquarters offices in Sioux Falls, Rapid City and Mission, with several branch offices. There is a referral resource listing on page 39 of this booklet.

Lawyer Referral Services located in Pierre will send you a list of lawyers to choose from. You may have an initial consultation for a small or reasonable fee. After that, you decide whether to retain that lawyer for further representation.

Yellow Pages and other advertising is becoming more commonplace among lawyers. Although few South Dakota Lawyers list their specialties, some have begun doing so. If you select a lawyer for a specialty, keep in mind that there is no guarantee by the State Bar or other body that such lawyer has any more knowledge or experience in the area listed than any other lawyer.

Legal directories, such as the Martindale-Hubbell Law Directory, can be found in some public libraries. These contain biographical information on lawyers in each state, and list lawyers by state and city.

Ten Tips for Staying Sane in Court

At some point during a lawsuit most people experience anger, frustration or depression. Here are some suggestions that will help you keep your mind clear and calm.

Going to court initially evokes strong emotions: anxiety if you're the one being sued; hope and excitement if you're the one bringing the case. But once the battle begins, the court experience commonly causes both sides to experience another set of emotions -- anger and depression.

Here are ten tips to help you avoid these states of mind.

1. Don't Count on Winning
In disputes taken to court, there is a common belief that there will be a winner and a loser. That occasionally happens, but when money is involved, it's common for attorney fees and other costs of litigation to eat up whatever award is given to the winning side. And even if you do win a substantial judgment, it may be difficult to collect. (For more information, see Nolo's articles on collecting a judgment.) In short, it's not unusual for a case to end with both sides out of pocket and the attorneys being the only winners.

2. Don't Take Your Rights Too Seriously
Our "lottery" culture often leads us to believe that we have highly valuable rights and that every minor violation of these rights means we can go to court and be awarded a pot of gold. Not only does this rarely happen, but going into court with this worldview usually means that if we are unsuccessful in vindicating our "rights" by getting a big judgment against the other side, we feel doubly betrayed by the system. It is far better and more conducive to long-term sanity to forget about "rights" and to think instead of our true needs. In this context, it may help if you remember the old Gypsy Curse: "May you be involved in a lawsuit in which you know you are right."

3. Court Is the Wrong Place for Revenge
If your goal is to go to court to punish someone for what they have done to you, remember there is a good chance he or she will fight back and try to punish you. As the old saying goes, "If you seek revenge, first dig two graves."

4. Mediate, Don't Litigate
Litigation is trial by combat. Mediation, on the other hand, is much more likely to be a healing process. Mediation focuses on ending a dispute by finding a solution both sides agree on. By getting disputants working together to find a solution both can live with, it gets away from the idea that one side should win and the other lose. Instead, it presupposes that disputes almost always have a point of resolution that allows both sides to come away with their minimum needs being met. For more on mediation, see Mediate, Don't Litigate: Strategies for Successful Mediation, by Peter Lovenheim and Lisa Guerin (Nolo), or see Nolo's articles on Mediation.

5. Don't Gamble More Than You Can Stand to Lose
Remember that litigation is in many ways a process that is difficult to control. Or put another way, even undertaking a case which appears to be a sure winner carries with it risk that you won't achieve the desired result and may even end up facing a lawsuit filed by your opponent. So before you file suit, think about how much you're willing to risk -- in dollars, time and peace of mind. If you do decide to go ahead, be prepared and willing to accept the possibility that you might lose.

6. Take Control of Your Case
If you become involved in a contested lawsuit, always remember that it's your case and that you have the right to control it. Hire a lawyer who is willing to help you acquire the information necessary to make intelligent decisions as they come up. Understand that doing this seldom involves deciphering complex legal strategy. Instead most decisions in the course of a lawsuit require only common sense -- and are often decisions that you can make more soundly than any lawyer you might hire. Taking charge of your case rather than acting as a passive lump of clay can also help brighten your mental outlook.

7. Control Costs
Part of keeping control of your case is controlling its costs. For any type of case there will be expensive ways to litigate -- and much less expensive ways. And any experienced litigator will tell you that in many instances, nothing is lost by following a frugal approach -- except a big lawyer's bill. So, whenever a lawyer suggests a particular procedure, do a cost-benefit analysis. Often, the likely results of the procedure are not worth the cost, but only you can make that decision. Keep in mind that lawyers, like doctors, sometimes suggest particular procedures solely to avoid the possibility of later malpractice charges or to pad their own fees.

8. Remember That You Pay the Court Personnel
If you handle your own case in court, the clerks and the judge may treat you as if you were a slightly inept visitor from another country. It's even common for people who are doing a good job representing themselves to be repeatedly advised to hire a lawyer. This, of course, is wrong-headed. Since you pay the salaries of the court personnel, it is they who should accommodate your needs by explaining confusing procedures and jargon. The best way to deal with recalcitrant judges and clerks is to calmly persist in asking questions until you get the help and information you need. Don't ever feel as if there is something wrong with you because you insist on understanding what goes on in the courthouse.

9. Keep a Sense of Humor
Once you chuckle a little, it will be easier to get to work on your legal problems.

10. Get a Little Help from Your Friends
Select a couple of friends to help you make good decisions. Be sure these are people you can trust to evaluate your situation objectively rather than offer uncritical support. Ask your advisors to evaluate the strength of your case and to suggest ways to make it stronger. If you will make a presentation in court, practice in front of your knowledgeable friends until you are sure you're ready to do an excellent job.

how to select an attorney

There are a number of books, written for people with legal problems, on how to select an attorney. There is no law school class on how to select an attorney. However, future lawyers are taught that clients have certain rights such as a right to zealous representation and a right to have their attorney diligently advocate their interests within the bounds of the law and applicable legal ethics. Clients are entitled to know the identities of the individuals, attorneys and staff, who will be responsible for the handling of their case. Clients have the right to a written fee agreement clearly describing the financial arrangements with the lawyer and what services will be provided by the lawyer in return for the lawyer's fee. Clients have the right to refuse to enter into any fee agreement that is unacceptable to them. Clients have the right to itemized bills for the services provided by an attorney on an hourly rate. Clients have the right to attend all court proceedings unless prohibited from doing so by the court. Clients have the right to make the final decision on all issues relating to their case so long as their position is legal and ethical.

WHERE CAN I FIND A LAWYER?

There are many ways to locate a suitable lawyer. You may have a family lawyer or a friend who has had a similar legal issue who will be able to refer you to a lawyer with the expertise you need. If not, here are our recommendations:

BAR ASSOCIATIONS: State and local jurisdictions have bar associations. In addition, the American Bar Association is available nationally. Any of these may assist you in finding a lawyer with expertise in your problem area.

MARTINDALE-HUBBELL: Martindale-Hubbell is a multi-volume work which lists practicing lawyers in the United States. Many major law firms are also listed. The areas of expertise of the lawyers are identified, together with a rating indicating their level of competence. AV is the highest rating a lawyer can obtain. Martindale is available at many law libraries and bar association offices.

INTERNET: The Internet is a source of legal information. First, lawyers' and law firms' web sites are being listed on the Internet with increasing frequency. Second, mailing lists, newsgroups and chat groups are providing informal information on legal resources.

DISABILITY ORGANIZATIONS AND SUPPORT GROUPS: Disability organizations may be able to provide the names of lawyers who have indicated an interest in representing person with LD and ADD: the state and local chapters of LDA and CHADD. Support groups in your state may be an important source of information concerning lawyers and their areas of practice.

CIVIL RIGHTS AND LEGAL DEFENSE GROUPS: Civil Rights groups such as the American Civil Liberties Union and the Judge David Bazelon Center for Mental Health Law, Washington, D.C. sometimes may be able to provide assistance.