Esquire by Day: June 2012

Wednesday, June 6, 2012

Judge Lee

[This post was originally published at jdduncanlaw.com on May 3, 2012.]

This week, the Coweta Judicial Circuit lost its Chief Judge, William F. Lee, Jr., a man who has been a judge in this community for over thirty years. Many attorneys have their own “Judge Lee” story to tell, and I would like to offer my experience as well.

I have lived in Newnan since 2003, but I did not begin my practice until late 2009. I first met Judge Lee in September of that year, and he was courteous in his chambers. He even gave me words of encouragement as I awaited my bar results, and offered his ear should I have any questions about procedural or substantive matters. The meeting was short, being escorted around by my now-partner Keith, but I left feeling good about the circuit I had chosen to pratice.

The next meeting with Judge Lee was a learning experience for me. I had not yet received my bar results, and was helping a client of the firm with temporary protective order procedures prior to filing for divorce. We went over her petition and, when I presented it to the judge with our client, I made the mistake of telling him that a divorce would be filed in the very near future. The next two minutes will forever be seared into my memory. Judge Lee informed me in no uncertain terms, that as a soon-to-be-lawyer, his standing order in divorce cases would handle the majority of the TPO items requested, and that the order we were presenting was superfluous. he was right, and I appreciate the fact that he took me to school that day. Never again have I gone into judge’s chambers half-cocked.

In the years since that instance, Judge Lee has always helped me when I needed advice on a legal matter. On November 2, 2009, he swore me in to the Coweta Superior Court, a day that I will never forget. He was available, and happy to talk about both criminal and civil issues in general terms. Other lawyers may feel differently about Judge Lee, but to me, he was always a man I could turn to for help. I will never forget the generosity that he showed to me. I am a better lawyer today because of my experiences with Judge Lee, and for that I thank him.

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.

Who is an Esquire

The term “esquire” is commonly used in the American legal profession, but there is plenty of confusion as to who, when, and how, one should use it. I do not pretend to be the definitive opinion on the topic, but I hope to provide guidance as you choose to use the word.

“Esquire” was a term that came to England in 1066 with the Norman conquer. Black’s Law Dictionary defines the term as “one who holds the shield.” Originally, the term was meant to indicate a sort of protector, or right-hand man, to a person of higher social status. The term later morphed into a man of status somewhere between a gentleman and a knight. The “esquire,” or “squire,” helped his knight with the governance of his property, and went to his aid whenever necessary. One would only use the term to refer to another person, never of oneself.

As English society developed, aristocracy began using the term as a form of honor in correspondence. Addressing a letter to John Quinn, Esq. was a form of flattery, implying a close personal relationship with the sender. To this day, men who receive invitations to Buckingham Palace are addressed as Esquire.

Fast forward to the present, and we see attorneys use the word as if it were given to them. Many refer to themselves as “esquire” in casual conversation, while others use it as part of their personal signature. This is in total contradiction of the original use and history or the title itself. What is worse it that many don’t have a clue where it came from. Graduation from law school and a bar passage result, in many minds, means they are now an “esquire” without much though into its meaning.

So who gets to use the term? In the US, attorneys use it. There is no written law on the matter, but the term connotes someone with legal education, and using the term without a juris doctor is clearly misleading. The US Supreme Court has heard the issue of use on a few occasions, but each time was in reference to a non-lawyer using esquire for the purpose of practicing law without a license. The “when” and the “how” are slightly more complicated. Based on original usage, I only use the term to refer to or send correspondence to other male attorneys. Used in reference to female lawyers, in my opinion, is disrespectful much as it would be to call a woman “mister.”

I also never refer to myself as “esquire,” in line with the term’s historical usage. I rely on my colleagues to call me by that title should they so choose, and I happily return the favor.

Who doesn’t like themselves to be an “esquire?” I think all attorneys like it, but many are unsure how to use it. My opinion is simple: never refer or sign as one, and always address other male attorneys as one in correspondence. Judges, of course, would be considered a higher status than an “esquire,” so please do not refer to a judge as such.

[This post was originally published to jdduncanlaw.com on January 21, 2010.]

Tuesday, June 5, 2012

A History of the Duncan Family

(Dunchad) Duncan, originally a forename, is without doubt one of the earliest names in Scotland – surnames being introduced by the Normans around 1120 AD – and originates from the Dalriadan Celtic Scotii (Scots) from Ireland who colonized the south west of Scotland from about the 4^th century AD.

One of the earliest accounts is that of the Scots Gaelic writings of the 11^th c. in the ‘Book of Deer’, the oldest Scots Gaelic writings known in Scotland today, written by the early Christian Monks of the Abbey of Deer in Aberdeenshire.

The first mentions of Dunchad, Donnachadh (Duncan) as a Clan was from the early part of the 14^th century and the Scottish Wars of Independence which ended with Robert the Bruce’s victory over the English at Bannockburn.

The Donachad, Dunchad (Duncans) descends from King Malcolm II who reigned from 1005 to 1034 and was the last king in the direct male line to descend from Kenneth MacAlpine, who united the Scots and Picts in 843 A.D. and is considered the founder of Scotland.

After Malcolm II's murder by his nobles at Glamis, Duncan killed his opponents and seized the throne as King Duncan I. His first cousins, Macbeth (of Shakespearean fame) and Thorfinn the Raven Feeder, Norwegian Earl of Orkney, united to advance MacBeth's claim to the throne through his mother, another daughter of Malcolm II. Duncan reigned from 1034 until he was defeated in battle by their combined armies and killed by Macbeth in August 1040 at Elgin. Scotland was then ruled by Thorfinn in the northern districts and Macbeth in the southern districts.

Malcolm, Duncan's eldest son, rebelled twice against MacBeth in an effort to gain the throne. Malcolm, after one failed attempt, at the head of an English Saxon army defeated and killed MacBeth while his Norwegian allies were engaged elsewhere and Malcolm ascended the throne in 1057 as King Malcolm III Ceann Mor (Canmore).

In 1068, Malcolm took as his second wife, Margaret, later known and revered as St. Margaret of Scotland. During his 37 year reign, the first events now known as Highland Games were held on the Braes of Mar to choose the best available men to serve as his servants and soldiers. His death in battle in December 1093 and the death of his wife, several days later brought on a turbulent time which saw Malcolm's eldest son, King Duncan II murdered by Malcolm's brother Donald Bane, Lord of the Isles, in order to become king. Another son, Edgar, finally secured the throne in 1097 with the help of another English army of Saxons and Normans led by his mother's brother, Edgar Aetheling. King Malcolm III's hereditary possessions devolved on his youngest brother, Maelmare, the first celtic Earl of Atholl and on his death, the earldom passed to Malcolm III's namesake, the second son of his first marriage. This Malcolm, the younger brother of the slain King Duncan II is the recognized progenitor of the Clan.

The Clan's first recognised Chief was Donnachadh Reamhair, or "Stout Duncan", who led the clan and supported Bruce during the wars of Scottish independence which culminated in Bruce's famous victory at Bannockburn on June 24, 1314 over Edward II's army. The most precious clan relic, the celebrated rock crystal charm stone of the clan, the "Clach na Brataich" or "ensign stone", was unearthed when the chief's standard pole was pulled from the ground while on the march to Bannockburn. It has been carried by all chiefs since then when leading the clan to battle.

Stout Duncan had four sons. The three younger sons: Patrick, Thomas and Gibbon, were outlawed by King Robert III for their part in leading the daring "Raid of Angus" in 1392 which garnered 3,000 head of fat Angus cattle, laid waste the district of Angus and resulted in the death of the Sheriff of Angus and a host of his followers who had pursued the clan back to Atholl. The eldest son, Robert, became the second Chief in 1355 and died sometime after 1392. Duncan, his eldest son and third Chief, spend some time as a hostage in England for the ransom of King James I and died sometime before 1432. He was known as the Lord of Rannoch, as all the other lands in Rannoch were in the hands of the Crown.

His eldest son, Robert Ruabh Duncanson, fourth Chief, was a strong supporter of King James I and was incensed by his murder. He tracked down and captured the regicides, Sir Robert Graham and the Master of Atholl hiding in a small glen and turned them over to the Crown. They were drawn and quartered at Sterling Castle.

The Robertson crest badge of a right hand holding an imperial crown was awarded by King James II to the fourth Chief, on August 15, 1451 as a reward for capturing the assassins of King James I in 1437. It is from this Chief that his descendants and many of his clan folk took the name "Robert's sons" or Robertson.

Not all clans folk followed their then chief and changed their name, as did he, to that of Robertson; as evidenced today by the number of individuals and families around the world who retain the name of Duncan and the various spellings thereof.

Robertson of Struan at present is (according to Burke’s Landed Gentry of Scotland) the 24^th Chief of Clan Robertson and the 28^th Chief of Clan Donnachaidh and there can be no doubt that his genealogy links him to both but, to be Chief of Robertson’s is one thing, to be Chief over the name ‘Duncan’, a name he and his immediate family abandoned over 450 years ago is quite another. To expect those who today retain the name of ‘Duncan’ to wear the Crest Belt and Buckle of the Robertson Clan is, to some quite unpalatable.

[This blog was originally posted to jdduncanlaw.com on December 29, 2009.]

Plea in your absence

Because I handle a large amount of speeding cases in my practice, I have a good many clients that live outside the State of Georgia. Most often, these clients are coming from or going to a vacation, trip with employment, or just taking a scenic tour of the jurisdiction they now have been ticketed in. As a consequence of their jaunt into and out of the court's jurisdiction, it may be difficult or cost-prohibitive to return. Enter the plea in absentia.

A "plea in absentia" is a latin term meaning a plea in your absence (this may be evident to you already). What this plea allows you to do is dispose of your case without going to court, but not necessarily just pleading to the full charge you were initially ticketed. The way it works is not unlike hiring a lawyer in any other manner: the lawyer shows up for you, negotiates for you, and ultimately works out the best deal possible with the State. Once the terms of the plea have been agreed upon with the prosecuting attorney, your lawyer sends you a document that waives certain rights and acknowledges the plea. This is typically accompanied with the fine amount paid to the clerk's office, if any will be imposed. Once your lawyer has the paperwork with your signature on it, he takes it to the judge and enters it on your behalf. All this is done without you ever having to show back up in court.

You may be thinking that this is the same as simply paying the ticket, but I assure you it is not. In many instances, there is room to negotiate with the State to avoid certain punishments. For example, if you were clocked going 85 mph or better, you are a super speeder in the State of Georgia. If you just pay the ticket, you have plead guilty to the speed and will see points assessed on your license as a result. If, however, you hire a lawyer to appear on your behalf, he could negotiate to a lesser speed thus avoiding points and super speeder designation. The money you save on insurance may not be realized immediately, but in time you will be glad you hired a lawyer.

The Uniform State Court Rules adopted by the State of Georgia allows judges, in misdemeanor cases (to include speeding tickets) to accept pleas in absentia in their discretion. There are certain constitutional rights that you must waive in a particular way for a plea in absentia to be effective. Because accepting a plea is in the judge's discretion, the form must be to his or her liking. Hiring a lawyer familiar with what each judge requires is of the utmost importance. If you are facing a ticket in Georgia and do not live within the state, contact a Georgia attorney to help you handle your case without traveling unnecessarily.

[This blog was originally published on JD's Guide to Speeding Tickets on April 26, 2012.]

Nolo Contendre: What is it?

Nolo Contendre: Latin term meaning "I do not contest;" a plea by which a criminal defendant does not contest the charges against him, but also does not admit guilt.

If you are facing a speeding ticket or other criminal charge, you have probably heard the term "nolo" or "nolo contender." You may even no that it means you do not contest the case, but you might not know the legal significance of so pleading or when you can do it.

What is it? A nolo contender plea is often entered by a criminal defendant when it makes legal sense not to enter a guilty plea but one does not wish to fight the case. The reasons for not entering guilty could be to avoid points or your license in the case of a speeding or traffic violation. Insurance companies vary, but may turn a blind eye to tickets that are disposed of with nolo pleas, thus keeping your premiums from going up. Also, if you were involved in an accident and you plead nolo to the ticket you may have received, the other party cannot use that against you when/if they sue you for damages (they can if you plead guilty). Usually a nolo plea does not get you a lower fine. Courts also have varying rules regarding what type of case they will accept nolo pleas for. Many do not accept nolo pleas for DUIs, and at least one court that I practice in regularly will not accept nolo pleas for Driving with Suspended License tickets.

When can you use it? Basically, you can plead nolo contender once every five years. This is more a rule of thumb than it is a hard and fast requirement, because courts vary in their interpretation. Most courts will allow you to plead nolo if you have not had a similar ticket within the past five years. Some jurisdictions will allow you to enter a plea even if you have had a similar ticket in the past five years but have NOT used your nolo contender plea. Other courts are more restrictive and have a broad interpretation of what a "similar" ticket is.

So, if you are facing your first ticket of any kind in the past five years, you are probably in good shape to use this type of plea. If you have had other tickets, you may still be able to use a nolo plea depending on what your history looks like and which judge you may be in front of. I always urge people to contact a lawyer familiar with your type of case AND the jurisdiction you were ticketed to be sure you get the best advice.

[This blog was originally published on JD's Guide to Speeding Tickets on April 10, 2012.]

Speeding is Speeding

I spend a lot of time in traffic courtrooms handling cases for my clients, and I always see someone try the same line to get out of a ticket. "I know I was speeding, but I was NOT going that fast," they say, in hopes that the judge will both believe them and cut them a break.

This common mistake gets many people into trouble. As soon as you utter the words "I know I was speeding" or something to that effect, you are admitting guilt. It technically does not matter if you were going one mile or twenty miles over for purposes of guilt; if you say you were going faster than the posted speed you absolutely will be found guilty. This is why you should never admit to a particular speed when stopped, either. While most think an officer or judge will be thankful that someone is telling the truth, your stance will not help you the way you intend. Sure, everyone will be polite, but you will not get out of the ticket.

Mind you, I am not bashing judges or officers. All I can do is urge the public not to admit to something that one might not perceive as important. Admitting guilt on camera or in court will not help you get out of a ticket you think should be dismissed. Say nothing, be courteous, and hire a lawyer to help you navigate through a seemingly simple process.

[This blog was originally published to JD's Guide to Speeding Tickets on January 5, 2012.]

Are you a Super Speeder?

They call you a "Super Speeder." Many in Georgia are familiar with this term, but few know when it applies and what it really means. Not long ago, Georgia legislators enacted a statute (codified in OCGA sec. 40-6-189) that added a fee for speeders that get clocked going a particular speed based on where the driving takes place, and dubbed such individuals "super speeders." In a nutshell, you face super speeder fines if you are clocked going 85 mph or better on any road or highway, OR 75 mph or better on a two-lane road. So if you get stopped for going 86 on the interstate, you are a super speeder.

What this means is that, if you plead guilty going at or above these speeds, not only will you pay a fine the local jurisdiction set, but you can also expect a bill from GA's Department of Driver Services in the amount of $200. The characterization as a super speeder does not affect how points are added to your license, which were not changed by the legislation, but some insurance companies are taking note and raising rates accordingly.

If you have recently been ticketed for speeding, take note that there are ways to avoid super speeder liability, but you typically need a lawyer to help. The cost of hiring an attorney may cost as much or more than the cost of the ticket, but the money you save with a good lawyer's help is more than worth it.

[This blog was originally published on JD's Guide to Speeding Tickets on December 2, 2011.]

Respect the Money

Many lawyers get bogged down trying to be "personal injury" lawyers by taking in cases that are then put on the back-burner while work is done on billing cases. There are plenty of law firms with this problem, and what happens is that small cases get pushed back and eventually let go.

I was always taught to "respect the money," even if it is a small amount. Sure, it's easy for a lawyer to get excited over a client with $300,000 in medical bills, but the case with $3,000 is just as important to that client. My goal in practice is to push all my cases to a speedy resolution, because my clients deserve it. My firm may not be able to do as much with a fee of a grand, but anyone who has been hurt knows that the money is still important. Ask your attorney if the money is important, and then ask when you go to trial.

[This blog was originally published to my blog Fender Benders Have Value on January 5, 2012.]

One blog and one blog only

For those of you that may read this blog or others that bear my name, you may feel a little deja vu. As a young lawyer starting my practice, I thought the way to get clients was to publish lots of blogs with very specific audiences in mind. I have had a speeding ticket blog (because I handle many speeding tickets), a personal injury blog, a DUI blog, and even a blog on my website. These avenues would be great to round up business, if I kept them updated.

Problem was, I never got on my different blogs to post new information. I blog often, and update Facebook pages and twitter feeds, but when I can't get around to my personal injury blog for a month, it defeats the purpose. Instead of looking like a lawyer that has his act together, a blogger with an empty blog looks like somebody with the best intentions but no follow-through. Enough of that for me.

I am therefore consolidating my blogging to this post, since it's my favorite. What this means for you the reader is that I will be reposting my content from other locations and Esquire by Day will act as my single source of written material. Having a single blog will give me the chance to blog often and keep things up to date. So, I apologize in advance for the regurgitated material you will find, but ultimately I believe this will be a much better source of information and window into my practice.

Musicians and Performance Enhancing Drugs

I am a baseball fan. Grew up with it, and still have my first glove from way back in my childhood. Having never played in college or professionally, I missed the first-hand accounts cropping up regarding “performance enhancing drugs,” but I know I wouldn’t have liked them around. Competition is about being the best you can be, not trying to gain an edge by taking steroids. So, when talk about Barry Bonds’ home run record and the dreaded “asterisk” came up, I got to thinking...

Musicians are avid drug users. Sure, not everyone who every picked up a trumpet or guitar shoots heroine, but a good many popular ones have. Charlie Parker, famed alto saxophonist in the 1930s and 40s, continuously pawned his sax for drugs. He also happened to be an amazing musician. For years after his untimely death, jazzers shot heroine in hopes of playing like “Bird.” Louis Armstrong before him smoked plenty of weed, as did many jazz musicians of his day. In fact, a jazz concert was not complete if the musicians weren’t high; that’s just what they did.

Fast-forward to the 1960s and the Kool-Aid Experiments in San Francisco. Would anyone seriously argue that the Grateful Dead would have been as influential without their psychadelic drug use? Look at Led Zepplin; heroine and cocaine helped them get to where they landed. Even today’s Green Day admits they are better high on something.

So as I was thinking, I could not help but wonder to what extent these drugs enhanced the band’s performance in the same way steroids does to athletes. Is it fair that we force our clean high schoolers to compete with pot heads and dope fiends? How is the playing field level if some out there are willing to risk their own life for the sake of fame?

Many of these bands are in the Rock-n-Roll Hall of Fame. It seems maybe we should put an asterisk by their records to dissuade youngsters from following suit like we do with professional sports. The goal is to teach our children, isn’t it? I have the sinking feeling that such a mark is more likely to be a badge of honor for bands, so perhaps the whole idea should be scrapped...

[This post was originally published to my website jdduncanlaw.com on October 30, 2009.]

Wednesday, June 6, 2012

Tuesday, June 5, 2012

I spend a lot of time in traffic courtrooms handling cases for my clients, and I always see someone try the same line to get out of a ticket. "I know I was speeding, but I was NOT going that fast," they say, in hopes that the judge will both believe them and cut them a break.

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