Friday, April 27, 2007

Criminal Defense - Your Day in Court


Your case is serious business to you, (and me), so the way you dress for Court must be serious and business-like. Soon, you will appear in a courtroom; in front of a Judge. Your personal appearance and your general attitude are very important. Here are some pointers to help you look your best for your Court appearance. The Judge is constantly evaluating your case. Your personal appearance is part of that evaluation. Therefore, it is very important that you carefully consider how you look in Court.

1. BE ON TIME You must be seated in the Courtroom at least 15 minutes before Court starts and your case is called. That means allowing yourself extra time for bad weather, bad traffic, finding the Courthouse, getting parked, and finding the right Courtroom. If you're running late or you're caught in traffic, call my office and let them know. A quick call might just save you a night in jail!

Failure to Appear: If you are not in Court on time, the Judge may issue a warrant for your arrest and you could be charged with another offense; (failure to appear). On late arrival you may be arrested and jailed until your next court date.

Bottom of the List: On your court date, I will not put your name on the list of cases that are ready to be called until I see you in the Courtroom. It's very embarrassing for your case to be called only to find that you are not there. If you are late to Court, your case may end up being placed at the bottom of the list. If your name is not submitted early to the prosecutor or clerk, your case will not be called early. You will sit for hours in a busy Court when you might have been called first or second.

If you are absent: On the day of your trial, I cannot play hardball in negotiations with the prosecutor if there is a problem with their case - if you are absent. I also cannot get instructions from you on a plea to a lesser charge or some other settlement - if you are absent. I cannot interview the witnesses you are bringing with you if you are not there. What I do in preparation and negotiations in the one-half hour before your trial starts is every bit as important as the trial itself.

2. GOOD APPEARANCE (Use Common Sense - Dress Properly). You will never get a second chance to make a first impression. The Judge knows nothing about you, except for the impression you make when you appear in Court. Dress like you're going to church with your grandmother. Wear good quality, clean, neat clothing and shoes. Do not wear flashy or fancy clothes, shoes or jewelry. Dress conservatively. When dressing and grooming for your day in Court, the word is conservative.

Choose a suit over other regular clothing, dark colors over bright colors, solids colors instead of prints, plain hosiery, conservative shoes, and modest jewelry.
Your shirt should be tucked in and buttoned up.

No T-Shirts or Shorts! You will not be allowed in Court if you wear shorts, cut-off pants, t-shirts, tank tops or torn clothing of any kind. You will not be allowed in Court with any item of clothing which bears any vulgar, suggestive or drug-related messages, words or symbols.

Your shoes should be clean and/or polished.

Your hair should be trimmed and well groomed, and men should be clean shaven unless you have worn a beard or mustache for at least a year or more.

MEN: Do not wear earrings or body piercings of any kind.

WOMEN: Do not wear low-cut blouses or extremely short dresses; (3 inches above the knee is too short). No bare belly buttons.

Turn OFF your cell phone or pager before you enter the Courthouse.

Do not chew gum in Court.

Do not wear a hat in Court.

Keep your hands out of your pockets.

3. NO DRUGS OR ALCOHOL Do not come to court with alcohol on your breath. Do not drink any alcoholic beverages for at least 48 hours before your court date. Do not ever use any illegal drugs. You will probably be drug tested, perhaps on a random basis before or after your trial date.

4. COURT SECURITY You will be searched at the Courthouse. Therefore, do not bring any knives, guns, weapons or illegal drugs into the Courthouse or you will be arrested. Smoking is not allowed anywhere inside the Courthouse.

5. BE ALERT Make every effort to get ample rest several nights before your day in Court. Do not rely on going to bed early on the night before your court date, because your anxiety may prevent sleep that night. You will feel rested and confident if you've had several good nights sleep.

6. BE RESPECTFUL Always answer with "Yes Sir or Ma'am" and "No Sir or Ma'am". Never say "yeah", "uh-huh", "yep", "nope", "nah", etc.

This pertains solely to a workers compensation claim in State Court and the laws are somewhat different for a Federal claim which you may or may not have due to the fact that the injury occur while working at a Federal installation be it for a private company. This letter is provided to answer most of your questions about filing a worker's compensation claim and my legal representation of you. This material does not attempt to set out all of the specifics of your case; rather, it provides considerable information that will be useful in consulting with me as a reference.

A worker's compensation claim is very different than other types of claims. For example, you are limited in what damages you can recover. In a worker's compensation case, you cannot recover for pain and suffering. Also, the Alabama Legislature has placed severe restrictions on the amount that you can receive for certain injuries. The legislature also allows the worker's compensation carrier to be paid back for certain expenses if you recover from a third party.
Typically, the first thing our firm will do is send a letter of representation to your employers worker's compensation insurance carrier. This lets your employer and the insurance company know an attorney is representing you.

In a worker's compensation setting, it is usually necessary that you reach maximum medical improvement ("MMI") before settling your case. Depending on your injury, it could take anywhere from a few weeks to years before you reach MMI.

In order to effectively represent you, I need your cooperation in the following ways:

Do not discuss the claim with anyone without my authorization. If anyone contacts you about this matter, please get the person's name and telephone number and notify me immediately.
Unfortunately, pursuing a worker's compensation claim is a slow process. The legal system is prolonged and complex. To add to the complexity, many insurance companies are from outside the state and it takes several days for documents to reach the company's offices. Once the company receives documents, it takes several weeks for the company to evaluate these documents.

Notify me immediately if you change your address and/or telephone number, if you change your place of employment, or if you must be away from home for an extended time period. I must always be able to reach you by telephone and mail.

It is my experience that your employer and/or their insurance company often hire investigators and quite often video tape you at home, work and during the day. These tapes, when shown to the Judge, can be very damaging if they display you doing things you say you cannot do. This is very real.

IN GENERAL. These conditions must exist to entitle an injured employee to benefits under the Alabama Worker's Compensation Law:

The employee must work for an employer whose business is covered by the law. (Generally, the law covers employers of five or more employees; it does not apply to independent contractors, common carriers engaged in interstate commerce, domestic servants, casual employees, farm laborers, United States and State government.)

The injury must result from an accident. ("Accident" is defined as an event happening suddenly and violently and producing, at the time, injury to the physical structure of the body by accidental means. There are exceptions to the sudden and violent requirement; especially lung, carpel tunnel syndrome, repetitive stress syndrome cases and some heart attack cases.
The accident must arise out of and in the course of the employment. There must be a relationship between the employment and the accident, and it must occur within the period of employment, at a place where the employee may reasonably be, and while he is fulfilling the duties of his employment or engaged in something incidental to it. (There are exceptions.)

Proper notice of the accident and injury must be given to the employer and/or your supervisor. The law requires that notice be given within five (5) days, but in any case, notice must be given within ninety (90) days following the accident. Actual knowledge, like telephone calls, has been held to be equivalent to statutory notice; immediate and/or written notice to the employer or supervisor is the best notice.

In addition, I wanted to make you aware that on April 28, 1994, Governor Jim Folsom signed into law a provision that states that "Any person who makes or causes to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining compensation...for himself or any other person is guilty of a Class C felony". I wanted you to be conscious of this new law as it pertains to your attempts to obtain worker's compensation benefits.

WAITING PERIOD. In cases of temporary total or temporary partial disability, no compensation shall be allowed for the first three- (3) days after disability, nor in any case unless the employer has actual knowledge of the injury or is notified thereof within the period specified. Compensation shall begin with the fourth day after disability, and, in the event the disability from the injury exists for a period of as much as twenty-one (21) days, compensation for the first three (3) days after the injury shall be added to and payable with the first installment due the employee after the expiration of the twenty- one (21) days.

EXCEPTIONS. Circumstances which may deny an employee's claim for benefits, such:
When the accident is caused by the willful misconduct of the employee.
When caused by the act of a third person or fellow employee for personal reasons, and not directed against him as an employee or because of his employment.
By the employee's intention to bring about the injury or death of himself or another.
By the employee's intoxication; directly attributable to the accident.
By failure or willful refusal to use safety equipment, appliances provided by the employer.
By willful refusal or willful neglect of the employee to perform a statutory duty.
By the employee's willful breach of a reasonable rule or regulation of the employer, of which rule or regulation the employee has knowledge.
Failure to use beneficial medical treatment.
Falsification of the employer's forms and especially, job application.

WEEKLY COMPENSATION BENEFITS. Weekly compensation benefits for injury and death claims are computed as follows:
For injury claims, multiply the employee's gross average weekly earnings prior to injury by sixty-six and two-thirds percent (.667%). Benefits cannot exceed maximum benefits in effect on date of injury.

For death claims, multiply the employee's average weekly earnings prior to the accident by fifty percent (50%) if the employee has one dependent, or by sixty-six and two-thirds percent (66 2/3%) if the employee has two or more dependents. Death benefits are subject to maximum and minimum in effect on date of injury. In no case can weekly rate of compensation be less than the minimum compensation, which was in effect at the time of injury, unless the average weekly earnings of the injured employee were less than that minimum. In such case, one hundred percent (100%) of the injured employee's average weekly earnings are paid. Gross average weekly earnings are computed by averaging over the employee's prior fifty-two (52) weeks of work; this figure includes benefits.

LIMITATIONS. The following types of claims cannot exceed the time period shown:
Death - 500 weeks
Permanent Total - Unlimited number of weeks
Permanent Partial Body - 300 weeks
Temporary Total - Unlimited number of weeks
Temporary Partial - 300 weeks

STATUTE OF LIMITATIONS. All claims for compensation shall be barred unless within two (2) years from the date of the accident a verified complaint is filed in the appropriate Circuit court. Where payments of compensation have been made, such complaint must be filed within two (2) years from the date of the last compensation payment. The word "compensation" does not include payments made for hospital, medical and surgical treatments. It means payments in lieu of salary. Paying salary when you go to the doctor is also compensation.

BURIAL EXPENSES. In the event of the death of the injured employee, the employer shall be responsible for paying $3,000.00 toward the burial expenses. This liability is not reduced by reason of private burial insurance carried by the deceased.

HOSPITAL, MEDICAL, SURGICAL TREATMENT. In addition to weekly compensation payments to the employee (or his dependents in death), the employer is responsible for all payments of reasonable, necessary medical, surgical and chiropractic treatment and attention, medicine, medical and surgical supplies, crutches, artificial members and other apparatus, as may be obtained by the injured employee during the disability. The employer will select the treating physician at the time of the accident. If the employee is dissatisfied with the initial treating physician selected by the employer, and if further treatment is required, the employee may so advise the employer, and be entitled to select a second physician from a panel or list of four (4) physicians selected by the employer. If you select a doctor, you are responsible for his treatment.

If the injured employee refuses to comply with any reasonable request for examination, or refuses to accept the medical service or physical rehabilitation which the employer elects to furnish, the employee's right to compensation shall be suspended and no compensation shall be payable for the period of such refusal.

FILING OF CLAIM BY EMPLOYEE. A claim is filed by properly notifying the employer of the accident and the injury, and by making application to the employer for benefits. If the employer declines to accept liability, you will need my services to handle the claim in the courts as provided by law. This means filing a verified (sworn to) Complaint. Notice of the accident must be given immediately after the accident.

The Judge of the Circuit Court shall fix our fee and its manner of payment upon hearing the case. Fees of attorneys cannot exceed fifteen percent (15%) of the amount of compensation awarded or paid. The employee is responsible for expenses such as depositions, medical reports, long distant telephone charges, copies, postage, and mileage to depositions and Court. We will try to recover some of the expenses but the recovery is discretionary with the Court. This does not include medical. You may also be entitled to round-trip mileage to medical treatments. Keep a diary of all your round-trip mileage. Bring all medical bills to our office to determine if they are job related.

A retainer may be expected of you to be paid to my office so that court costs and medical reports can be paid on your behalf. The doctors will not provide them without being paid first. You are responsible for all expenses such as medical records, deposition costs, etc.

Of most importance to you the Worker's Compensation Act 1992 defines the amount of recovery you receive from your employer. If you are still working for the same employer basically at the same job you can only recover an amount based on the percent of medical impairment (physical loss) determined by the treating doctor. If you are not working or working else where for less the amount of recovery is based in part on the vocational expert (loss of earning capacity). These amounts vary greatly (3-5% vs. 50% to 100%). I will discuss this important aspect with you as it certainly raises many questions of your compensation.

Thank you again for your consideration and cooperation. I welcome the opportunity to serve you and look forward to working with you on your case for worker's compensation benefits.

Please communicate with my office.