Think Before Hitting 'Send'

Because I practice family law, I have read my share of text messages, tweets, and facebook messages between litigants (read: "soon to be ex-spouses").  Usually, these messages are little more than jabs at one another, and my client feels the need to show me in hopes that I will find the last coffin nail among the trash talking.  Occasionally, it actually works.

The problem with these modes of communication is that they are all so impersonal that many feel they can literally say whatever they want, and I mean whatever.  I am amazed at what some people think is appropriate via text especially, whether way too graphic or way to rude.  Even more amazing, however, is the shock these individuals experience when their late night tweet gets read during a hearing.  Calling the mother of your children unfit because you don't think she wears any underwear is hardly appropriate in any written form, and you will look silly if the judge hears it.

I am not here to advocate for or against strong language to one another, mainly because it's none of my business.  Curse someone out at the bar; I don't care.  Just say it to their face.  But please, before you send that text ask yourself how stupid it would sound in a courtroom.  Facebook is available to your opponent, and if you show your rear enough you are bound to hurt your case.  Best scenario, you look foolish in front of a judge.  Worst case, you say something that actually jeopardizes the outcome.  Just think before hitting send.  Once that message is out there, you can't take it back.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Remember, Remember the Month of November

I only saw it once, but I loved V for Vendetta.  I always get into a good "former-prisoner-seeks-revenge-against-former-captors" story, but it really has no bearing on the rest of this post.  I just really like the famous "5th of November" line in the movie.

Today I am reflecting on the past thirty days because it seems like it went by pretty quick, and I have not had much chance to write.  So consider this a rapid recap of what's been going on at JD Duncan, PC for the past month.

The month started off with a dismissal of a magistrate court suit against one of my debtor clients.  Technically, it happened on the last day in October, but still getting to tell my guy the good news started the month off properly.

On the 6th, I had a bench trial in state court over a contractor dispute.  I was defending a grading contractor that was facing a $45,000 possible judgment for a pond that he excavated, and was very happy to have received a directed verdict in our favor.  That means, the case was decided for my client without my guy having to testify or present any evidence.  Needless to say he was quite happy.

Later in the week I negotiated a possible 90 day sentence in a jail case down to 30 days, ten of which he had already completed, over a suspended license probation violation and new charge.  Quick work, and he got out much sooner than had I not been involved.

On the 12th I was able to persuade the state to dismiss their case against a Mexican national client of mine that had a mixup with his passport and drivers license.  Not a difficult case once I obtained all of the necessary information, but servicing another happy client is always a plus!  The next day, I had a juvenile court hearing for a client that made a seriously bad decision with a friend of his.  The state initially was looking for 12 months of detention, but I was able to convince them that thirty days was more appropriate.  My guy gets out next week.

The 14th was a very busy day for me.  Two days prior, a client of mine had been picked up for a violation of probation.  The jail was telling her that the next calendar she would go on would be after Thanksgiving, so I immediately filed a motion to have her case heard early.  Much to my surprise, I was granted a court date for the 14th and got my girl out of jail that day.  Once finished there, I had to run over to Superior Court to handle numerous family law cases.  Two of those cases reached settlement that day, with another settling the following Tuesday.

I also advised someone on a prenuptial agreement, mediated a legitimation case, and am in the middle of investigating a reckless driving case I'm not sure can stick.  It's been a busy month, but one I'm especially happy fell the way it did.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Our First CLE Presented by the Newnan-Coweta Bar Association

My colleagues and I at the Newnan-Coweta Bar Association had an idea about a year ago to offer learning opportunities in our neck of the woods for issues that our local attorneys were facing.  With the Georgia Legislators adopting new evidence rules beginning in January 2013, the time was finally ripe to put on an event.  In the past, our Bar ran into obstacles when trying to put something together but Sandy Wisenbaker, Matthew Swope, Clif Sandlin and I decided to throw caution to the wind.

Today was the first in what we hope to be many learning and social opportunities for our Bar.  Prof. Liza Karsai, from Atlanta's John Marshall Law School, spent two hours with about 35 of us going over the changes to the new GA Evidence Code, and I believe everyone left with some extra knowledge on the subject.  I've got my homework, and a new book to buy and read, but more importantly I'm excited to see what lies ahead for our group.

I am incredibly proud of our Bar for being able to present and attend such a successful CLE.  The hardest aspect of motion is breaking the inertia and starting to move at all.  Now that the Newnan-Coweta Bar has taken the first step, I'm hoping the second step comes a little easier.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Mexican National Drivers and Georgia

I just came back from court successfully for my client.  I feel compelled to write this post because, based on my recent experience with international drivers in Georgia, feel that not everyone knows what will be asked of you should you get stopped.

My guy is a Mexican citizen, with a Mexican passport, and was stopped months ago for driving with no license.  He works for a company out of Alabama driving vans and trucks, so he needs a valid license to do so.  Because he lived in Canada prior to entering this country, his drivers license was issued from Ontario rather than his native land.  When the police stopped him, he showed them several documents to attempt to prove he was here legally, but unfortunately he did not have his passport on him.  He was taken to jail, even though he had a valid license from Canada.

I've been working with my client for months to show the State that his ticket was improper.  The State referred me to a letter written by Catherine W. Brown, Assistant Legal Adviser for Consular Affairs of the US Department of State, that was in response to an inquiry posed by the Prosecuting Attorney's Council of Georgia, addressing issues within the 1949 Convention on Road Traffic and international drivers licenses.  Persons in Ms. Brown's position write opinions on international law that are published in the Digest of United States Practice in International Law, which sheds some light on the interplay between federal law, state law, and treaties the US is a participant.

In a nutshell, Georgia wanted to know whether and to what extent they must recognize foreign drivers licenses within its boundaries.  Ms. Brown's letter, dated April 12, 2002, concluded that Georgia must recognize foreign drivers licenses ONLY if the alien-holder has been lawfully admitted to the US.  Georgia may apply more liberal rules, of course, but this is the floor.  Good news for my client.

So on the scene, the officer asked my client (who does not speak great English) if he had entered the US legally and to show his passport.  My client did not have his passport, so he was arrested.

My client had a valid visa to work in the US and did actually have a Mexican passport stamped for entry into the US.  But because he didn't have it on the scene, the officer had no other option but to arrest.  This happens often in Coweta County, and could be avoided if the persons stopped could simply show a US Customs stamp.  After much research and persuading with the State, I was able to show that he did enter the US legally, had a valid visa, and had a valid drivers license - his case was dismissed.

What you need to know:  if you are an alien to this country and carry a valid license issued from another country, and you get stopped by the police they will ask for your passport.  Keep it with you, and be ready to show a stamp for entry into the US.  Often our US-Canadian border will not stamp passports automatically, so ask.  It will save you jail time and a huge hassle fighting a ticket that would otherwise not have been written.

Best,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

The First Two Rules of Fight Club...

No, I did not just get into a fight.  But yes, this is what my face looks like today, and your welcome for posting in black and white instead of color.  That Murphy's law thing, which says what can go wrong will go wrong, held true last night.  In the midst of preparing for a criminal bench trial for this morning, I thought I'd do a little work around the house.  Without getting into the hows, I now have a fantastic cut right between the eyes that makes me look like I spend my nights with "no shirt and no shoes."  Of course this happens on the eve of trial, when I have to spend hours in front of various people convincing them to do what I want them to.  Not on a Friday evening, or even before a day where I get to sit in the cozy of my office as wounds heal.

And to top it off, when I went to CVS to get some butterfly bandages, they only had bright white.  Great.  So I took it off during court thinking it would actually be better than no bandage at all.  Wrong.  "That's going to scar," was the more popular comment to my cut.  Thankfully we worked out my case without trial, and I now sit coolly back at the office with lovely white bandages over my face.  From now on, when people ask what happened I'm just going to remember the first two rules of fight club (you do not talk about fight club) and keep my mouth shut.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Voting: What a great country!

November 6, 2012.  Election Day.  I had the pleasure of taking the two most important women in my life, my bride and my daughter, to our voting location around noon today.  I was pleasantly surprised to find the line was virtually nonexistent, so it only took the Duncan clan a few minutes to cast our ballots.    It was a great family outing, as my child had her first experience in our democratic system.  My mother tells stories about how I "helped" vote for Reagan in 1980, and it was fun to  continue the tradition with my little one.

Regardless of where you stand on the outcome, which has by now been determined (except of course for Florida, God bless them), you have to be proud of a nation that can cast millions of votes in a single day.  The fact that we as citizens get to elect our government officials is a privilege not all societies get to enjoy, and hopefully all you readers exercised your privilege to vote.  Sure, my state was going to Romney whether my single vote counted or not, but I had a say.  So did you.  Be proud of a country that can peacefully settle our differences in the polls rather than in the trenches.

Patriotically,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

On Location: My Kitchen

If you regularly read my posts, then you know that I often write from "exotic" locations like Barnes and Noble, the Senoia Coffee Shop, and other such places.  Today is no different, as I am here sitting at my newly minted kitchen table I literally just finished.  In those posts, I typically write about how productive you can be getting out of the office, but it would seem as though all I really finish is a cup of coffee and another post!  So let me first mention that in the two hours I have been working at home this morning, much has been accomplished that I have been trying to finalize for some time.  Blogging, while important to me, always takes a back seat to my client's work.  It just so happens that when I'm away from my desk, time magically seems to be on my side.

There is a simple reason why I can get so much done in a different environment.  People actually learn more and focus better when not entirely comfortable.  The level of discomfort can't be huge, but it needs to be enough to let our brains know "hey, something is different.  Better concentrate."  Doing the same thing over and over will lead to laziness, and as the phrase goes, insanity is expecting the same results.  So when you feel a rut coming on, stretch your legs or stay at home for a few hours and feel the rejuvenation come over you.

Being a former educator and musician, I am familiar with this technique.  f you keep students slightly off balance, theyI will stay on their toes.  Even changing from block to 8-period days has some effect on students initially because the style of teaching must be different.  Once the brain knows what is coming, it stops paying attention and you lose sharpness.  If you apply a proper stimulus, like the crowd at a coffee shop or my little girl's toys (which are currently in full noise-making effect), you can focus better because the brain knows to provide more energy to the task at hand.

Miles Davis, known for putting together some of the best small jazz ensembles in history, knew the importance of pushing his musicians.  He understood that if his players were comfortable, they would play the same stuff they were known for, but if uncomfortable, they would create sounds that none had heard before.  While others, such as Sonny Rollins and John Coltrane, made names for themselves as performers, Miles was making everyone around him great, too.  And by making his musicians great, he too excelled in ways not possible without the

I am not comparing myself to great educators of the free world, but the concept is dead on.  When I work from a place that's not my office, I get more done in a small period of time.  This doesn't last very long, of course, because the new eventually becomes the old if you keep doing it.  Sure, if I work from my kitchen table every day, I will eventually stop working in favor of play time with my daughter or a walk with the dogs.  But every now and then, a little change makes a big difference.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

My Grandfather's Shirt

Today was no profound court drama, nor was it a day full of intense negotiations with insurance companies and opposing counsel.  No, today was just a regular day in the office getting work done.  Except for one small thing:  today I am wearing a shirt that once belonged to my grandfather, C. Dennis Yarborough.  Of course I didn't call him Dennis; my name for him was Pawpaw (and for the record, if I get to choose what to be called when it's my turn, I want to be a pawpaw, too).

Pawpaw was an accountant at Independent Life in Jacksonville for most of my childhood, which meant that business attire was a must.  Once he left the business, he had all these shirts that he no longer needed, so I became the proud owner in shirts like the one pictured above.  Hopefully you can see the slight tattering around the collar and placket, proof that this shirt saw many late nights of loosening the tie for the hard work that lay ahead.  There are similar signs of work around the cuffs, and the bottom front of the shirt is frayed just a bit wear I assume his belt hit.  The shirt's not winning any beauty contests, so it never sees the florescent lights of court.  But I love this shirt for the tale it tells.

We lost Pawpaw early this year, and it's strange to visit Jacksonville and not see him and listen to his jokes and guitar.  There are so many things that we used to do together that I miss, things that I reflect on when I sit on the porch or watch a football game.  Incidentally, he used to take me to University of Florida games back in the late 80s and early 90s, so I'll always be a Gator in his memory.  We hiked in the Smoky Mountains, went canoeing in North Carolina, and played tons of music together.  But then there's this business shirt.

I never really knew Pawpaw's working side.  I may have visited his office once in my lifetime, and all I remember is that everyone knew him and knew me even though we had never met.  He wore suits and ties just like I do now in my practice, but that's really all I get from his professional life.  Now here I am alone in my office with his shirt on, and I can't help but to feel Pawpaw's here with me.  It will always be his shirt; I'm just borrowing it because he doesn't need it right now.

The frays and checks in the shirt tell a story that I don't know, but it is his story.  I may not know what he did in his office all day, but he's here in my office right now thanks to this shirt.  I will always miss Pawpaw and wish I had more time with him.  It seems wearing his clothes has at least allowed me to work alongside him today, and for that I am grateful.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

"I Should Have Hired You"

Praise in the courtroom makes me think I can do anything!

I was in Coweta County State Court yesterday for a jury trial calendar, where I heard what any attorney loves to hear.  I was sitting in the jury box, where the lawyers always sit, as the judge went through the ten-page calendar to determine which cases would go forward and which cases would end that day.  "Please hold my case, your Honor.  The State and I are still talking," I said when my case was called.  I reclaimed my seat and continued conversation with another attorney as the call continued.

In the two hours I sat in the courtroom, I had a couple of laughing moments with the solicitor handling my client's case o totally unrelated matters, as she pondered what to do with us.  I waited as I witnessed a few unrepresented defendants talk with the solicitor-general, and watched as others waited for their attorneys to arrive.

Finally I got my answer from the State at around 11am.  Case dismissed!  I walked over to my client to relay the good news, and let him know he could leave...he was quite happy.  It was at that moment that I heard music:  "I should have hired you," the man next to my client said.  I simply smiled and went on my way.

Now, I do not know whether this guy had a lawyer that wasn't there, or had decided to go it alone by trying the case himself.  It really doesn't matter, though.  The important point was that he perceived me as a lawyer who was getting it done.  I was, mind you.  Convincing the State to dismiss our case was no easy task.  I always wonder how clients perceive me in the courtroom.  I have to, when my competition includes former DAs, judges, and longtime defense attorneys.  It's nice to hear that I look the part that I am playing.

I take defense seriously.  My clients come to me with serious problems they must deal with, and part of my job should be to keep them calm.  A calm client can think clearly, and when I look the part in court, that calmness is contagious.  I know I do a good job for my clients; I like knowing that others see that as well.

Cheers,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

What a great day!

Wow, do I love this weather!  It’s been a few weeks since my last entry, and I have really missed writing.  After my trip in early September, I came back with a nasty cold that continues to linger, and I also enjoyed a rather unexpected trip to see my brother at the Food and Wine Festival in Orlando.  Needless to say, getting back into the swing of things has taken some time.

Now that I’m back, I am loving the weather here in Newnan (or Senoia today, more correctly).  I was just released from Senoia Municipal Court and am currently enjoying a coffee and scone from the Senoia Coffee & Cafe’.  I come to Senoia every now and then, but have never been to the coffee shop before.  After watching Rutledge from Top Gear USA drive through a month ago, I had to try it.  Now I’m sitting outside in what must be low 70s, but I’m a terrible judge of temperature.  All I really know is that I’m not sweating through my Dockers.  This is the best way to enjoy today, though, since I can’t put the top down on my car because I’m carrying around refreshments for the Newnan-Coweta Bar Association Dinner tonight.

I am having a blueberry scone, which is delicious, and the house specialty Zombie Dark Roast, named because AMC films The Walking Dead here.  I may have a new favorite.

I suppose some people might say that writing a blog is rather pretentious.  Why would anyone want to read dribble like this, especially from a lawyer?  Well, for today at least, I just would like to share this great morning with someone, and since it’s just me here, you get the invite.  No profound words of wisdom or insightful commentary on something I just experienced; just a good day to be alive.

Best,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Costumes

Tonight was Mickey's Not So Scary Halloween Party at the Magic Kingdom, so of course we had to take our little one for her first trick-or-treating.  And yes, we dressed up.  That's me on the end as the Mad Hatter (classic, of course, and not the Johnny Depp version), while the rest of our gang round out quite the tea party.

I don't have any clever tie-in to the practice of law or legal problems here.  I just think costumes are cool.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

How fast is too fast?

Yes, that's me in the Lamborghini Gallardo pictured above, and probably not going nearly as fast as I could have.  Today, my wife and child were kind enough to give me an exotic racing experience down in WDW, and I chose the Lambo to drive because I love how crazy the guys that make it are.  Sure, Audi runs the show now, and this particular car is made on the same assembly line as the R8, but it still just feels a bit out there.  you don't drive a Lambo because it's economical or can fit your golf clubs.  you drive one of these V10 monsters because it is not suite for everyday driving.  Did I mention I love this car?

So I got to drive this puppy around the track today, but something struck me during our training this morning that I thought I would discuss relating to speed.  This car, like the others on their roster, are "super cars."  I think the top speed in mine is something like 198 mph, but I'm not certain and I'm not looking it up right this second.  You would think that I could just fly around the track with a car like this, but our instructors reminded us that, while these cars have crazy performance, they are sitting on street tires.  Street tires carry with them limitations that your Ford Focus does.

Tires are rated based on, among other things, speed.  So even though I am driving a thoroughbred with over 500 horsepower, I can't just pitch it into a corner and it to corner like I'm in F1.  Same goes for top speed.  I think I maxed out at a measly 119 mph on track, this car and this set of tires can't do a whole lot more than that safely.  Sure, with slick track tires I could do more, but those wouldn't be legal for my trip to the grocery store.

We have speeding laws for safety.  I am all for driving fast, so long as it can be accomplished without incident.  So many of our interstates are capped at 70 mph because the tires most cars drive on top out not much faster than that.  If my Lamborghini can be limited in performance while using street tires, so can your Mustang.  Keep in mind that car engines are designed for optimum performance, but your tires are not.  Before you hit the gas, know your limitations.  Maybe those speed limits are there to protect you.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Battery and Assault

If you are familiar with the Magic Kingdom, then you know that they have parades all the time.  The photo above is taken from just across the bridge in Liberty Square as I had my girl on my shoulders for her first Electrical Light Parade.  Funny thing about these parades, though.  Even though they happen every day, and sometimes twice a day, crowds of people gather from all over the park to watch them.  Because I've been bumped a time or two tonight, it made me think about a totally relevant section of law that may not be obvious to those that didn't endure years of law school:  Battery.

Battery, in its simplest form, is the harmful or offensive touching of another.  There are criminal and civil elements to battery, but most jurisdictions follow similar doctrines for both.

To commit a battery, you must have the intent to commit such contact.  However, it is enough to know "to a substantial certainty" that such a contact will occur, so if I through a bag of popcorn into a crowd of people, say, watching a parade, I know to substantial certainty that it will hit someone.  I do not, however, have to have the intent that it be harmful or offensive; just that contact will or may occur.  Similarly, if I try to weave through a crowd to get a better view of the parade, I will probably be bumping into people here and there.  Either of these actions would satisfy the intent requirement.

It is not enough, however, that contact merely occur.  That contact must be either harmful OR offensive.  Harmful contact is obvious.  If, as I weave through the crowd, I knock someone over and they scrape their arm, I'm on the hook.  What most people overlook is the "offensive" component of battery, which is where we enter a gray area.

What is offensive varies both from person to person and by situation.  When a crowd is trying desperately to see a parade, it is probably less offensive that I get shoved than, say, in the mall as I walk down the aisles.  Similarly, pulling my wife close to me is (usually) not offensive to her but it could be if I did the same thing to my secretary.

Many folks get caught up in the "I didn't mean for it to embarrass them" business, but it really does not matter whether you intended the contact to be offensive.  If you know to a reasonable certainty that it could be offensive, the contact could constitute battery.

Lastly, for battery to occur, contact must actually occur.  Assault comes into play without contact, but then only if a possible recipient is aware that contact might occur.  So if I swing the magic wand my daughter got from Cinderella at the woman in front of me, but her back is turned, no assault.  If she sees me, however, that's assault.

These are generalities that I am speaking of, and each jurisdiction will have statutory or common law guidelines that might include or exclude certain elements of this action.  I just can't resist writing about battery as I get pushed around by eager parents and kids as they attempt to catch a glimpse of Neon Mickey.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Signatures, Seals, and Coats of Arms

Today, the family and I are at EPCOT, and this is the view from the "English Channel" separating the British Pavilion from France.  I love the view from this bridge, and we have tons of photos with this backdrop from years past.  As I enjoy the view from the "UK" something comes to mind that really annoys me, and I have never written on the subject.  If you haven't visited EPCOT, there are pavilions that represent different countries with food, beverage, and shopping.  In the British Pavilion, there is a shop that sells coats of arms.  You job is to thumb through this big book at the shop and find your last name.  Next, the clerk shows you the "coat of arms" for your last name and will show you all the cool things you can plaster the crest on, like a shirt, mug, soccer ball, you name it.

I suppose I should start by talking about what a coat of arms is.  Here is a picture of John A. Duncan of Sketraw's:

This coat of arms is John's personal heraldry, and while it bears resemblance to many Duncan shields with the cinqfoils and chevron, he has added the personal touch of a dragon biting a sword because he is a dentist by trade.  A clan, or large family, would have multiple shields but typically share the crest, or in this case the ship located above the shield, as a way of showing allegiance.  John is alive and well today, and it is possible to obtain a your coat of arms through the Lord Lyon Court in Scotland if you meet certain criteria.  You can then have elaborate papers drafted, rings made, and seals created.  My point is that this stuff is taken quite seriously in the UK.

So why am I annoyed?  Basically, this is a trick pulled on uninformed Americans.  Because of the heritage of so many Americans, surnames abound that come from Scotland, England, Ireland and Whales.  In these countries, most notably Scotland, there is a government body that regulates and administers coats of arms to ensure that no two are alike.  This misconception, however, is that there is one single shield for one surname.  A coat of arms in Great Britain is as personal as a signature, and mine would be different from my brother's and father's in a small way.  And my male cousins' coats of arms would also be different.  In Scotland, it is actually a crime to use another person's coat of arms!

When the uniformed enter a shop like the one I describe, they are really just looking at one particular person's coat of arms that has the same last name as them.  I might as well wear a t-shirt with my uncle Bill's signature on it.  But because we are not under British rule, there is no prosecution for using someone else's coat of arms so merchants sell this stuff to unwitting enthusiasts.  It bugs me that people from the UK know better, but it equally annoys me that Americans don't know they are being duped.

How does this have anything to do with Georgia?  In Georgia, a person can use any mark they like to act as their signature.  This means you could your name, an x, a squiggly line, or a stamp of your coat of arms, to sign you name.  This idea comes from the British Isles, where lords would place a stamped seal of wax to their documents, ensuring that its contents authentically came from the signatory.  If you are in Georgia, then, you could get creative if the mood strikes you.  I met one woman who signs her name "Minnie Mouse," and of course lets her bank know, so when anyone actually signs her legal name the bank is notified that it's fraudulent.

Pretty cool stuff, in my opinion, but then again, my name is one of the oldest names in Scotland.  I suppose I could be biased.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

DUI and Under 21

Just because I'm on vacation doesn't mean that I can't also blog!  This shot is taken from the Tambu Lounge at Disney's Polynesian Resort, and the drinks pictured are delicious.  As I sip my Zombie and enjoy the slack guitar playing from the bar, I thought I would write a little about how a DUI can affect someone under the age of 21.  Maybe it's all the kids running around me, but for whatever reason, I feel compelled to say something.

Typically in Georgia, if you refuse to take the "State Administered Test" of your blood, breath, or urine, you will automatically get a twelve month license suspension through the Department of Driver Services.  Whether or not that happens to you depends on the arresting officer, of course, but he or she has the power to initiate a proceeding that will suspend your license regardless of your guilt.

What many don't know, however, is that this same process can be initiated by the arresting officer of an individual under the age of 21 that takes the test and blows .02 or better.  It doesn't matter how courteous you are; the officer has the power to take away your license for a year.

The only way to combat this is by requesting a hearing in front of an Administrative Judge, who will determine whether or not probable cause existed to ask you to take the test in the first place.  An experienced DUI attorney can help you request such a hearing as well as ensure that you provide DDS all that they need to schedule the trial.  There is a time limit on such a request, too.  You must ask for a hearing within ten days of your arrest or your license gets suspended automatically.

I could go into how DUIs affect you in other ways, but I am afraid the Zombies might get the better of me.  Look for future posts on how to select the best DUI attorney for you.

Aloha!

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Out of the Office

I have taken my own advice and left the office for a much needed vacation.  And yes, I am at Walt Disney World in Florida.  If you've never been, you really have to go.  Don't worry; there are plenty of things for adults to do while you're down there.  I am a total Disney nerd, having spent many days in Orlando as a kid since my grandparents live so close.  Now that I have my own family, it's fun to see the little one play around on the same stuff I enjoyed years ago.

So my goal, as with any vacation, is to do as little work as absolutely possible.  I have asked my receptionist to relay any messages I might receive, email is up and running, and I can always use Skype to get in immediate contact with my staff.  Seems like a good plan.

I also have my RocketMatter account for the management of my practice, which is a cloud-based system that I love.  This keeps my client information handy, and with the extra use of Dropbox, I have all the documents I might need in a hurry.

I guess my number-one goal is to simply stay in touch with my office.  A lot can go on in one day, and I imagine that touching base will not only keep my clients calm, but also alleviate some of the stress created for the office by my absence.

We'll see what the week holds for my practice, but hopefully it will be filled with more cotton candy than disgruntled clients.

Best,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Why My Blog?

It seems like everyone has a blog these days.  Some are professional, some personal, and some totally worthless.  Writing a blog that can be set apart from the sea of posts can be difficult, but is important to me.  I suppose I consider my thoughts to be worth something or I wouldn't bother writing them dowcome back, and even subscribe.

In the legal field, there seem to be two types of blogs:  those written for other attorneys and those written for prospective clients.  I read many blogs myself written for other attorneys, and I see that many colleagues of mine write blogs for their client base.  I don't see the point in limiting my audience to one side or the other if I can help it, and I therefore try to write from the perspective of an attorney that deals with clients.  Sometimes I feel the need to speak to the profession, and other times I speak to prospective clients.  In either scenario, I feel that what I have to say can benefit the other side.

In the case of non-lawyers, I think it's good for clients to see what we as attorneys deal with and talk about to gain insight into just how intricate the practice of law can be.  On the other hand, I feel it's important that attorneys are transparent (at least to some degree) in how they talk with their clients.  Creating a single blog to address both sub-groups allows each side to see a little behind the curtain.  So really, my target audience is anyone dealing with a legal problem, whether as a party to litigation or a representative of a party.

Now, the name "Esquire by Day" is something I kind of fell on.  I like to superhero feel to it, like Superman being a reporter by day, etc.  But the name also reminds my readers that I am not just an attorney all the time.  Attorneys have interests and opinions that most of our clients don't see.  And when you hire someone to handle a DUI, you are less concerned about the paddle-boarding Saturday I just spent on Shem Creek.  It's good to remind clients, as well as lawyers, that we are not just a source-book of legal knowledge.  By day I practice law (and sometimes by night), but I also do other things that are not related to my practice.  This is why I write about speeding tickets as well as taking a vacation. The practice of law does not occur inside a vacuum.  Hopefully my writings and rants help to illustrate that.

Thanks for reading, and please subscribe and comment on what I say!

Best,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

The Value of Reasonableness

I recognize that most people hiring a lawyer are either in the middle of a fight, or need to start one.  Sometimes this involves fighting for damages due to a negligent driver, and sometimes it manifests in a bitter divorce.  It can be so difficult to live in these realities and imagine that working together with the other side will ever be possible.  What these parties typically want to do is reach across a table and scratch the opposition's eyes out, and expect their attorneys to do the same.  Quite the surprise when the lawyers not only get along, but encourage a resolution that does not involve a trial.  Why is my lawyer being so nice, they ask.

The value of reasonableness is not always readily visible.  Especially when emotions run high, being reasonable can be the last thing on a person's mind.  This creates major difficulty, therefore, when trying to reach a resolution without trial.  We as lawyers are trained to practice in an office as well as a courtroom, so the fact that your lawyer encourages a non-litigious resolution is no indication that he or she is afraid to present the case to a judge.  Instead, lawyers understand the gamble inherent in trial, and therefore try to inform their clients of the pitfalls associated with trying to a judge or jury.

Abraham Lincoln famously said this about trial:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

I think Honest Abe was on to something.  I can't tell you how often I see former couples fighting over the most meaningless pieces of furniture from Rooms to Go and the like, only to pay ten times the value on lawyer fees, and all just to stick it to the other side?  This hardly seems like a good use of time, even if I do make more money when my clients fight than when they don't.  In my representation, I try to help my clients find a fair resolution they can live with, which sometimes means a mediated agreement, and sometimes means a trial.  Default is certainly not "let's let a judge decide," however.

The most valuable aspect of being reasonable is this:  only when you reach an amicable resolution with an opposing party can you truly start to heal.  Working together to raise a child or dig a ditch becomes considerably easier when the two of you got their without a judge's intervention.  This is NOT about being scared of a judge.  Judges are trained to hear your case and come up with a good solution.  Once you argue before a judge, however, you no longer control your case.  At least when you work with the other side, you get to dictate what you are willing to do, and can't be forced to do what you don't want to do.  As the judge lays down the order, however, you're stuck.

This comes up often in my domestic practice, where mother and father have their differences in deciding how to raise their children.  What I try to encourage for my clients is that, even though you may never want to see your child's other parent again, you will be forced to by a certain degree for the rest of your child's life.  Fighting tooth and nail at this point probably won't help you down the road when the child needs a united parental front.  At the end of the day, your child most importantly wants his or her parents to get along and not involve them in their battle.  Only one way to get this done:  be reasonable.  

There are times to fight in court, and that usually is when one side is being unreasonable and refuses to agree to anything.  Litigants need to understand that this is worst case scenario for your life.  Sure, you might get everything you want in court, but that is no way to think about it.  Even if you get the same "deal" from the judge that was on the table during negotiations, that deal is now tainted by the litigation you forced.  What once was an ex-spouse you could face becomes a parent with a grudge.  How does this help the two of you raise your kids?

I am not advocating lying down and taking what the other side offers.  Being reasonable means coming into negotiations with a clear and open mind.  Think about how you could possibly work with the other side, and not how easily you could ruin them forever.  Trial is necessary in many cases, but not all.  Listen to your attorney and be reasonable.  At least you can sleep at night knowing you tried.

Sincerely,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook. 

Class is in Session

To quote Ice Cube, "today was a good day."  Instead of working my fingers to the bone cloistered away in my office, I had the pleasure of speaking to a group of students at Atlanta's John Marshall Law School.  My former evidence professor, Liza Karsai, was nice enough to invite me to talk to her class for the day about what I have learned so far in the practice of law.

I had a blast speaking with her students. Once I stopped my oratory and let them ask questions, things went great.  Their questions ranged from getting a job, dealing with unruly opposing counsel, to attracting the clients you want.  I sincerely hope they got as much out of our two hours together as I did, and I am excited to have more chances to talk with students in the future.  I handed out my cards to any student that wanted one, and I've already been contacted by a couple to thank me (great!).  Not having taught since I graduated from law school, it was nice to get back in front of a class.  I owe Prof. Karsai for a wonderful afternoon.

This was not my first visit to JMLS since the bar exam, but it was my first chance to really talk about what I do.  Our discussion has me reflecting on the years since I finished law school and how far I've come as a lawyer.  I remember meeting my first client and accepting my first fee.  I had no idea how to file a case in the Superior Court, but law school did teach me where to find the answer.  I have since learned how to customize my practice with clients and cases that I want (after learning how to file the case I just mentioned, of course).  I have learned that even the smallest speeding ticket can be important to someone, and that a client loves to hear that it's important to their lawyer, too.  I enjoy helping people with the issues life throws at them, and I can sleep at night knowing that I am impacting lives.

In my first few years of practice, I have won over $100,000 for my personal injury clients, received some 'not guilty' verdict for criminal defendants, and helped parents fight for custody of their children.  I may not have million dollar verdict yet, but I am certain that what I do makes a difference to the community I serve.  To me, that's what matters most.

A little reflection never hurts.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook. 

Courtesy as Currency

Ah, my portable office.  It's a nice day in Newnan, and more importantly outside of Barnes & Noble in Ashley Park, while I sip my morning coffee in between appointments.  I really should do this more, especially now that the weather is a bit cooler than the dog days we had in July.  I came from Troup County State Court this morning to work out a plea agreement for a client before jetting off to a meeting with the other members of the Newnan-County Bar committee.  So I am spending my time before the meeting by taking in some fresh air.  But I digress.

The reason for this post is to emphasize the importance of courtesy.  Having just come from a court that I do not visit often, it could easily have been difficult to accomplish what I wanted.  Just in an hour, I made contact with the solicitor, her assistant solicitor, a fellow criminal defense attorney, the judge's personal clerk, the judge, a bailiff, and the public defender.  Without getting into why I had to speak with each person, let me just say that I needed all of them to help things go smoothly for me and my client.  Being courteous to each of these people, telling a joke, asking about the weekend, ensured that we conducted our business quickly and without event.

Now I would love to tell you that each of us has the ability to make things happen on our own, but that's just not true.  The fact is that, even the movers and shakers of our society rely to some degree on the assistance of others.  For some, it may be getting a question answered at the DMV without being told you were in the wrong line.  You may need the door opened for you when your hands are full of bags and baby.  Perhaps your variance application is nestled between piles of paperwork and you need someone to take a quick look.  In any event, someone will need to help you, and help doesn't usually come to those who demand it.  Those that build rapport with others and are polite, however, tend to catch an extra break or two.  

Help is not the only time that courtesy has value.  In my profession, I am constantly collaborating with fellow lawyers, experts, witnesses, and support staff.  Sure the work might get done if I am rude, but will it be better?  Faster?  Maybe not.  Worst, though, is that chances are good no one will want to work with you a second time.  In the end, this of course is detrimental to you in some way.  Even within my firm, courtesy begets courtesy, and I tend to get things done quicker with my people (and with a smile) because I am polite.  And besides, it is way easier to ask for extra hard work after having just asked about your secretary's dog than having just issued a clear "no personal issues" mandate.  We aren't' grizzly bears, so why act like one?

Bear in mind, being courteous is not being a door mat.  No one expects you to sacrifice yourself everyday just to be a nice guy.  And no one really wants to tell you about their family history.  I am also not advocating that you take your assistant out for tea once per week and ask about her boyfriend.  All I am saying is that a smile goes a long way.  Not everyone will like you, and you shouldn't try to please them all.  But for goodness sake, we could all use an extra friend, right?

Just think about it.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook. 

Mediation: Is it useful?

In a word, yes!  But let's talk about what mediation is for those that don't know.  Mediation is a chance for two sides of a problem to meet with a neutral third party to facilitate an agreement without trial.  Typically this consists of both parties to litigation, their lawyers, and the mediator.  In the Coweta Judicial Circuit, like many districts in Georgia, the Superior Court has a standing rule that no domestic case (divorce, custody modification) can have a final hearing without first having gone through mediation.  This means that I mediate a fair number of cases with my family practice.  In fact, you might be reading this now because you are about to mediate yourself.

So, why do I think mediation is useful?  For starters, it is a chance for litigants to work out their differences without a judge.  Not that judges are bad; quite the contrary.  When you let a judge decide your case, however, the judge alone is in charge.  In mediation, you can set your own terms and remain in control.  For most people, the ability to control their case is paramount.  When both parties are reasonable in mediation, the chances of crafting the best case scenario deal are way better than trying your case to the judge.

Speaking of reasonableness, you might think mediation is a waste because the other side is so crazy/silly/totally off-base.  Truth is, people are usually much more reasonable in a mediation setting.  Why is that, you ask?  Well, each party is more than happy to act like a jerk to their soon-to-be-ex in the privacy of their own homes, but put them in the same room with their lawyer, a lawyer they don't know, and a mediator they don't know and you will find the most roaring a*hole becomes the epitome of calm.  This surprises most people when mediating, which is why so often an agreement is reached.

Which brings me to my next point.  You might not want to mediate, but in my experience, about 80% of the cases I mediate settle at mediation (at least in part).  These cases settle when the parties buy in to the process and come with a good faith attempt to resolve their issues.  Your case might not settle, and the other side might still show up with no intention of settling, but usually things work out for the best.

Finally, we cannot underestimate the power of a great mediator.  Mediators are not trained to care whether an agreement is reached or what is agreed to.  Their primary purpose is to facilitate your conversation with the other side.  Sometimes this takes place with all parties in the same room, and other times you will caucus privately with the mediator.  In either scenario, the mediator with play devil's advocate and problem solve with you to come up with solutions you can live with.  Thankfully, we have great mediators in my circuit.

If you are prepping for mediation, remember to go in with an open mind.  You may not agree on everything, but your chances of finding common ground are high and the other party just might surprise you.

Best of luck!

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

The Stand-up Desk: An Endorsement

For those of you that have been reading my page for a while, you know that I built my New Desk about eight months ago because I couldn't find anything in the market that suited me.  In earlier posts, I focused on the shape of the top as a great way to add workspace to my office without the annoying corners of a typical rectangle.  I also mentioned that the height is adjustable, but I never went into much detail of how it worked, or why I use it.  Thus, this post is born.

I have no idea how long stand-up desks have been in use.  Maybe some Renaissance businessmen used extra tall tables to get their work done, but I just don't know.  What I do know is that Thomas Jefferson used desks for standing, and if it's good enough for a Founding Father, it's good enough for me.  Bill Gates also advocates for stand-up desks.  He has been known to implement standing board rooms to streamline the meetings over all-day sitting sessions in comfy leather chairs.  And now, the Microsoft offices in numerous locations have standing conference, or meeting areas, to promote collaboration.  On its face, it makes sense to me that I would not prolong a meeting where I was standing up as opposed to some opulent calfskin lounger.

First, let's talk about the health benefits.  Sitting all day is a real drag.  My back hurts from leaning forward (maybe I have my chair to blame), and I can feel myself growing more lethargic as the day goes on.  When I sit all day, I am more likely to eat a bigger breakfast, fatty lunch, and probably a snack around 3 pm.  Why do I need all these calories when I'm just sitting?  Of course I don't, but what else is my body to ask for when I can't get off my rear?  I am more likely to get distracted by email or Facebook when sitting, and everything just seems to go slower.

When I stand, however, everything changes.  I can feel the blood flow through my legs and work goes by quicker.  And by quicker, I mean I am more efficient.  When the synapses are clicking away, email takes less time, phone calls have more energy, and I am not eating my face off all day.  I can't forget to mention that when I'm standing and one of my partners comes in, the meeting is considerably shorter and to the point than if we hunkered down in my chairs...bonus.  I may not want to stand for 8-10 hours every day, but a few in the morning and afternoon does the trick.

The problem with a dedicated stand-up desk in my law office is that clients typically do not want to stand when they come to meet me.  Comfort is the key to a successful prospect meeting, and if they felt like I was rushing them out I might never get business.  So I can't use a desk the way Jefferson or Gates uses one because I have to be able to sit during client meetings.

There are tons of mechanical rising desks online that you can purchase.  These desks are push-button functions, and I assume they move slow enough not to throw your stuff all over the room.  I could have bought such a system, but they are expensive and I am not sure why.  What happens when the motor runs out, does it fit my aesthetic, does it fit my desk?  Too many questions for me, so I looked elsewhere.

I found the perfect legs for my desk at IKEA, of all places.  You can see by the pictures that my find is a simple a-frame made of solid wood that I stained.  The rise and fall is set by pegs that go through holes in the bottom.  It may not look as cool when I am moving the desk up or down as a push button, but I love it once moved.  With this set-up, I can stand up all day to work and sit when my clients come in.  Best of both worlds.

As lawyers, I think the profession gets sentimental over their workspace.  New desks are not purchased ever six months, so not all of you will be in the market for a change.  If you are considering something new, I cannot recommend a stand-up desk enough.  When I built mine, I knew I would like it, but I had no idea just how enjoyable it would be.

Enjoy!

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Why you should want a Will

Many lawyers will tell you that you absolutely MUST have a will, and proceed to spout off numerous problems with not having one.  Truth is, the problem isn't really yours, is it?  I mean, you won't be around to deal with the problems, so why should you care about the issues that might arise?  Therefore, I will not tell you why you simply must drive to your lawyer's office and draft one right this minute.  No, whether you perceive it as a need, you should want a will.  Let me explain:

1.  For starters, having a will does make things easier on the people that you leave behind.  In Georgia, like other states, have statues regarding intestacy, which is the legal term for a dead person who has no will.  Without a will, the statutes in effect upon your death will govern all aspects of your estate.  Whether your estate consists of bank accounts, a house, car, or personal items, without a will the probate court will have to appoint someone to decide what to do, approve that plan, and basically make things slow and difficult.  If you could make your family's time easier, wouldn't you want to?

2.  Besides making things easier for your family, having a will means that you control where your stuff goes.  It's your stuff, right, so why not dictate who gets what?  Without a will, the intestacy statutes will govern, and no one really gets a say aside from the probate judge.  If you want your Gibson guitar to go to your brother, the only way to ensure this happens is by bequeathing it to him.  Your family may get along now, but trust me when I tell you that they will fight after you pass.  Having a will keeps the fighting to a minimum and allows you to control what you want to.

3.  What I consider the most compelling reason to write a will is this:  your will is your last letter to the family you have left behind.  No other document exists whose sole purpose is to be read after you are gone.  Picture your family huddled around an attorney's desk for the reading of your will.  What they are about to hear is the last message you can send them.  "To my son, Albert, I give you all my love and affection..." etc.  To me, a will is such a great opportunity to blow one last kiss to your spouse, one more hug to your friends.  If I had to choose between making one last statement to my loved ones and not doing so, I'm choosing to give one last speech.

So, don't think about why you need a will.  There are plenty of reasons why no one should leave the house without a will.  Chances are you know about these, and they are clearly not compelling enough if you still haven't written one.  Instead, think of your will as one last opportunity to put a smile on someone's face.  Your family will be glad that you did.

Happy drafting,

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.