Friday, September 14, 2012

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.

Thursday, September 13, 2012

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.


Wednesday, September 12, 2012

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.

Tuesday, September 11, 2012

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.

Monday, September 3, 2012

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.