Get Answers to the Most Frequently Asked Questions about Auto Injury Claims, Workers Compensation Claims, and Divorce & Custody Cases.
Questions about an injury claim, workers compensation claim or a divorce or custody issue? We want you to call us and ask your questions at (910) 341-7570. There is almost always a lawyer available to speak with you. The call is free and there is no obligation. If you prefer, you can gather more information on this site before you call. We answer many of the most frequently asked questions here. The site is not intended to be a substitute for legal advice. It is designed to give you the information you need to get started and to be knowledgable about the process as you search for the best injury lawyer, the best workers compensation lawyer, or the best divorce lawyer for you.
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I was indicted by a federal grand jury in North Carolina. What does that mean and what should I do now?
In Federal Court, the Fifth Amendment to the United States Constitution generally requires that for serious crimes, a grand jury must be impaneled prior to formally charging someone with a criminal offense. The grand jury is a panel made up of 16 to 23 community members, who are selected by a federal judge to serve for terms of 18 to 36 months. Unlike ordinary juries, which decide whether a defendant is guilty of the charged offenses after hearing evidence at a trial, the purpose of a grand jury is decide whether charges should be brought against that person in the first place.
The job of the grand jury is to review the government’s evidence against the accused. In furtherance of that job, the prosecutor (the United States Attorney for that district, an Assistant United States Attorney, or a Special United States Attorney) will present evidence to the grand jury similarly to the way he would at trial. Like at trial, witnesses can be subpoenaed to testify about their knowledge of events. Unlike trials, which are public record, grand jury investigations are generally conducted in secret. The biggest difference between a grand jury investigation and a trial, however, is that only the prosecution gets to present evidence and be heard. In grand jury investigations, the accused does not have the right to cross-examine witnesses or present opposing evidence. This difference is obviously very important, as the grand jury will only hear one side of the story. Though it may seem unfair, the idea behind only hearing the government’s side is that the grand jury only determines whether charges will be brought, meaning that the accused still has the ability to defend against those charges at trial.
After the government has presented its evidence, the grand jury will vote on whether that evidence was sufficient to demonstrate that a crime was committed. If the grand jury votes that the government’s evidence was sufficient, they will return what’s called a true bill of indictment against the accused. An indictment is the formal document that charges a person with the commission of a crime. On the other hand, if the grand jury votes that the government’s evidence was insufficient to justify bringing charges, then the matter doesn’t move forward. It’s worth noting that because the government only brings cases to a grand jury when they feel they have enough evidence to go to trial, the grand jury rarely votes against an indictment.
Once an indictment is returned, the case begins to move forward through the criminal justice process and against the accused person. If you or someone you know has been indicted by a grand jury, it’s important to retain an attorney as soon as possible. Because the prosecuting attorney has already had an opportunity to present his evidence, the government’s case against the accused is already well prepared. The sooner an accused can retain counsel, the more time their attorney has to prepare a defense. In addition, your attorney can arrange for cooperative surrender and do the things that are necessary in order to give you the best opportunity for pre-trial release.
For more information on indictments and grand juries in a particular case contact the Speaks Law Firm at (910) 341-7570 or go to Speakslaw.com.
Under what circumstances can I be arrested?
In general, a law enforcement officer must obtain an arrest warrant from a judge in order to make a legal arrest. However, there are exceptions to this rule. The two main exceptions to this rule are: (1) If the arresting officer has probable cause to believe that a crime has in fact been committed, and there is not enough time to obtain a warrant, then the officer may make a warrantless arrest. (2) An officer may also make a warrantless arrest of any person who commits a crime while in the officer’s presence.
An Arrest without Probable Cause
An arrest without probable cause is invalid. An invalid arrest does not excuse criminal conduct. However, evidence that has been obtained pursuant to the invalid arrest can be excluded from consideration by the jury during a trial. It can also be a source of leverage in plea negotiations with the prosecutor in your case.
Your belief that an arrest is invalid is not a basis for immediate protest. Your protest can lead to a physical injury or additional charges for obstructing justice or hindering an investigation. Assert your rights respectfully and make a mental note to discuss it with your lawyer. He is in a better position to use that information effectively.
What should I expect at an Initial Appearance in criminal court?
Once an individual has been arrested, the next step in the criminal process is the initial appearance. The initial appearance refers to the first time that the defendant appears before a judge. Even if the defendant has been allowed a temporary release on bail, he or she is generally obligated to be present in court for the initial appearance.
At an initial appearance the Judge will inform the defendant of his right to a lawyer. The judge will ask whether the defendant wants to hire a lawyer, represent himself or apply for a court-appointed lawyer. The Judge will inform the defendant as to the specific charges against him or her. The Judge will inform the defendant of the next scheduled court appearance. The Judge will not give legal advice. The Judge may also address the issue of bond at the initial appearance.
A word of caution
This is not a closed or protected hearing. There is no opportunity for the defendant to “clear the air” or “explain misunderstandings”. The proceedings could be recorded. Anything the defendant says can be used against him or her. There is generally a prosecutor present who will do exactly that given the opportunity. No responsible person should ever go to criminal court without a competent criminal defense attorney.
I have a personal injury lawsuit in New Hanover County. Will I actually have to appear in court for my Murraysville truck accident case?
Maybe, maybe not.
Almost all motor vehicle accident lawsuits are settled out of court. A civil trial can be so expensive—and the risk of a huge jury verdict so uncertain—that eventually the insurance company or the defendant in a North Carolina truck accident lawsuit will make an attractive settlement offer. They decide that the certainty of a final agreement is worth the money they offer.
One rule of thumb is that only about five percent of personal injury suits go to trial.
The lawsuits that defy that rule tend to be those involving the most serious injuries—and, consequently, involve the highest values when the case is resolved. In this instance, the plaintiff is often willing to reject fairly large settlement offers because the case seems so strong and the injuries so severe; the plaintiff and his attorney believe that a sympathetic jury would be willing to award large damages to their side.
This is relevant to your case because truck crashes tend to involve more severe injuries than other North Carolina traffic accidents. Trucks are heavy vehicles, and their kinetic energy and momentum can cause devastating harm in a collision. Now, it’s true that we don’t know many of the details of your case, and specific details are crucially important in any lawsuit. But, in the most general terms, you are probably more likely than the typical injury case to go on to trial.
Remember that, even after a trial begins, the two sides can still reach a settlement agreement. Indeed, many cases are settled during the course of a trial.
So what should your lawyer plan for?
Here’s the secret: You need a lawyer who can be prepared for anything.
If your attorney is uncomfortable in a courtroom and prefers to settle cases, the opposition attorneys will know that. They will offer a lower settlement amount because they know your lawyer is unlikely to call their bluff. Your interests are best served by a confident attorney who isn’t afraid to challenge the opposition in the courtroom.
From the way you phrased the question, it sounds as if you’re not comfortable with the idea of having to testify in your own case. That’s okay. A good attorney will have plenty of time—and the necessary skill—to prepare you for a poised appearance as a witness if that proves to be required. Your lawyer isn’t going to force you to take the stand; as the plaintiff in the case, you get to make all the key decisions. However, your attorney should be able to help you prepare for testimony if the case goes that far.
That’s also why you should consider the Speaks Law Firm as your legal representatives. The North Carolina traffic injury attorneys at our Wilmington office are equally at home in the conference room and at the courthouse. We’ll tell you frankly when we think a settlement offer is too low or if a jury trial is a bad idea, but as the client you are the boss.
We will pursue your personal injury claim with vigor until we get you the best compensation offer available for your medical expenses, disability, lost income, and suffering. Give us a call today at 910-341-7570 (locally) or 877-593-4233 (toll-free). We can set up a FREE consultation on your case to answer all your questions.
I have a child custody and or child support order and the other parent is not paying; what can I do? What is Contempt?
There are several ways to ensure payment of child support once there is an order in place. The two main ways are wage withholding and contempt.
This can be done initially as soon as the child support order is entered. The parties can choose not to do income withholding if they make a written agreement that shows support will be paid in another way and that income withholding is not necessary or is unreasonable.
Wage withholding can be applied at a later date if a motion is made by either party under one of the following circumstances: the paying party is one month in arrears, the4 paying party requests the withholding, or if payments have been made in an unreliable or irresponsible way.
The most that can be withheld is forty percent of the disposable income.
There are two types of contempt, civil and criminal.
Civil contempt is not meant to be a punishment. but instead designed to make a person do what the court has ordered. Civil contempt can be initiated by an order to show cause issued through the court or by a motion and notice filed by the party who is owed support. To find civil contempt, the delinquent payor must be found by the court to have willfully failed to comply with a support order and have the current ability or means to comply. The court will decide this on a greater weight of evidence standard.
If the judge finds these two factors, the payor must "purge" himself by one of several methods. Some examples include jail time, attorneys fees, or an award of interest on the past-due amount from the date the motion or complaint was filed.
Criminal contempt can be direct, meaning willful actions that disrupt court proceedings happening in court; or indirect, meaning out of court action. In a direct contempt action, the alleged contemptor will be given notice of charges and opportunity to be heard. When there is no such summary hearing, the alleged contemptor must be given a show cause order.
The show cause order is like a criminal indictment and the alleged contemptor may try and have the order dismissed. Criminal contempt is an offense against the state and remedies include a fine up to $500, imprisonment up to 30 days, censorship, or any combination of the three.
There are several less often used methods of getting past due child support including security, transfer of property, leins, garnishment, arrest and bail, forfeiture of licensing privileges, and in extreme cases, uses of the Federal Deadbeat Parents Punishment Act.
In conclusion, to ensure that you get the support money you are due, court action must be taken.
Over the last few years, my 19-year-old son has been spending time his grandmother’s home—my husband’s mother—who is having trouble taking care of herself. Now David has been arrested for “uttering and publishing” in North Carolina. It seems to be something about taking financial advantage of his grandmother. Can you please explain this?
The crime of uttering and publishing has its roots in English common law, and is related to forgery. In ancient times, those crimes were considered misdemeanors and—as with all common law offenses—were considered criminal acts by tradition. Today, of course, we require that an act must violate a specific law in order to be called a crime. Uttering and publishing is defined in the North Carolina General Statutes, section 14-120, and is a class I felony.
The crime is usually associated with passing bad checks. To charge your son with the crime of uttering, the prosecutor must be able to prove that your son presented a bad check with the intention of fraud. In a typical offense, someone will present a check or money order to a bank to be cashed, but the signature on the check—or the endorsement, if it’s a third party check—has been forged or altered.
The crime is committed when the bogus check is presented. No money need change hands. It doesn’t matter whether the recipient believed the check was good. The act of offering a check for payment when the person knows the document is invalid is enough to establish a crime.
Of course, we don’t know all the circumstances of David’s arrest or the specifics of the charges he is facing. In our experience, when a young adult is accused of taking advantage of an older relative by uttering and publishing, there are two common scenarios:
- The prosecutor alleges that the young adult has gained access to the older person’s checkbook and has been writing checks to himself on the bank account, forging the account holder’s signature; or
- The prosecutor alleges that the young adult has been removing pension, Social Security, or other checks from the mail, forging an endorsement by the endorser, and then presenting the checks for cash payment to himself.
In David’s case, you probably are not facing the Social Security fraud of the second scenario, because that would involve a federal prosecution rather than a violation of state law.
There are many effective defenses against charges of uttering and publishing in North Carolina. For instance, your son’s attorneys may be able to prove that your mother-in-law actually wrote checks to David, or that she asked him to cash checks on her behalf but forgot about it.
Because the penalties for a North Carolina felony offense are so harsh, you will want to engage an aggressive and experienced Wilmington criminal defense team for your son. Call 910-341-7570 or toll-free at 877-593-4233 to connect to Speaks Law Firm, where every client is treated as our most important client. We can investigate your son’s case thoroughly and work for an acquittal, a dismissal of the charges, or a plea bargain that will minimize the impact on his future.
I’m a member of a U.S. Army infantry stationed in Afghanistan. My wife is divorcing me in North Carolina. Do I need to hire an attorney?
At some point, yes, you will want local legal representation. You certainly need legal advice immediately.
As a service member on active duty, you can get free legal advice through the military’s legal division, the Judge Advocate General (JAG) Corps. Even if you are in a fairly active combat zone, your request for JAG assistance will be answered. JAG personnel can keep you informed of your legal rights.
JAG attorneys do not represent servicemembers in divorce cases. They may not be completely up-to-date on the specific divorce law in North Carolina (or any other state). In other words, your JAG contact will be able to explain legal jargon to you and give you a good fundamental understanding of your legal position, but he or she will not give you all the help you need.
Stopping the Gears of Justice
You may want to seek a delay in your divorce case under the Servicemembers Civil Relief Act (SCRA). This 2003 law was passed to “freeze the action” on civil lawsuits where one or both parties to the suit are active military personnel. At your request, the North Carolina court that is handling your divorce will delay the proceedings for 90 days. If you are still overseas at the end of this period, you can request additional extensions—but the court is not required to grant any delays after the first one.
Still, 90 days gives you a good period of time to find a North Carolina divorce attorney to represent you in your case. If you are having trouble finding a lawyer you trust, your JAG attorney can contact law firms stateside and help you find one for your divorce case. And, if the court denies your request for an extended delay in the proceedings, the judge will appoint a lawyer to protect your interests if you have not hired a divorce attorney in North Carolina.
Go It Alone?
If you want to try going through a divorce without a lawyer… well, let’s be honest: our law firm usually isn’t in the position of saying, “No, don’t hire an attorney.” But, if you and your wife have come to an agreement that your marriage must end, and you agree on all issues concerning dividing your property, and you agree on child care and child support and alimony, and if you trust her completely not to take advantage of your absence, then you probably can go forward with a no-fault divorce in North Carolina without the aid of a lawyer. We hope it works out okay for you.
Why Speaks Law Firm Should Represent You
If you want the assurance of a trustworthy legal representative to look after your interests in court, Speaks Law can work on your behalf in your divorce action. We can consult with you by phone, e-mail, or Skype—yes, we’ll work around the time difference—to keep you up-to-date on progress. We can e-mail you copies of all the correspondence with the court and opposing counsel. You might be thousands of miles away, but we will keep you “in the loop.”
Contact our Wilmington family law firm at your convenience at 877-593-4233 or use the handy online message box on this page. We can act as your eyes and ears stateside to preserve your interests while you serve our nation overseas. It would be an honor to work with you.
My husband and I were in an automobile accident in North Carolina. He had severe injuries, and eleven months later he died from complications of those injuries. Can I bring a lawsuit against the truck driver who collided with us, even though so much time has passed?
Yes. Specifically, you will want to file a wrongful death lawsuit against the driver who caused your traffic accident in North Carolina.
When someone is injured as a result of another person’s negligence, he has the right to file a lawsuit to recover compensation for his losses. If those injuries are so severe that the person dies, obviously he cannot begin a legal action. However, the personal representative of the deceased person’s estate can file a wrongful death claim against the negligent person. Simply put, this legal action says, “Your irresponsible behavior robbed my family of an important presence in our lives, and you need to be held accountable.”
Some people think that filing a wrongful death claim in North Carolina is profiting from the death of another. That’s simply not the case. In your case, the loss of your husband has left you worse off emotionally and financially. The money you might be awarded for your lawsuit goes to pay back your expenses during your husband’s last few months of life and to make sure you have just as solid a financial footing as you would have had if he had lived. You aren’t getting more than you deserve.
To prove a wrongful death claim, your North Carolina traffic accident lawyer will need to prove that the truck driver failed to exercise a reasonable level of care when the collision occurred. If your attorney’s investigation shows that the driver indeed was negligent, he can be held accountable for all the results that follow from his wrongful actions.
If you win a jury trial for your wrongful death action, you can be compensated for any of the following:
- Medical care and hospitalization for your husband, to a maximum value of $4,500
- Compensation for pain and suffering of the decedent
- Funeral expenses
- Loss of your husband’s future income, services, care, companionship, and advice
- Punitive damages, if the driver who caused the accident was acting maliciously or with reckless disregard for the harms that could follow
Time Is Short to Claim Your Rights
The North Carolina statute of limitations on wrongful death claims is two years, dating from the time of death. However, a wrongful death claim is said to be derivative, because it depends on whether the injured person could have sued for damages if he had lived. For this reason, you also have to abide by the three-year statute of limitations for negligence lawsuits, dated from the day of your traffic accident.
These legal rules can be confusing. If you still have questions, Speaks Law Firm stands ready to help you. You can schedule a free consultation with one of our Wilmington personal injury attorneys by calling us today at 910-341-7570 or (statewide toll-free) at 877-593-4233. Give us a chance to explain how we can move forward with your case before the statutes of limitations run out.
My wife and I both agree our marriage is over. But, we have three children together, and we’re worried the divorce will hurt them. Should we stay married for the sake of the children? Or, if we get a divorce, how can we make sure the children get through it okay?
You have your priorities right. You both recognize that the long-term wellbeing of your kids has to be the top consideration in determining the way you end your marriage. A North Carolina divorce has tremendous potential to inflict lasting pain on a couple’s children. Stick to your determination to avoid that.
Your willingness to remain in a marriage you both recognize is “over” says a lot about your mutual commitment to your children. As a first step, I suggest that you consider marriage counseling, if you have not yet tried it. It’s possible that you two still have enough in common to revive your marriage. Yes, I work as a Wilmington divorce attorney, so recommending that couples explore options other than divorce might work against my financial interest. But, just as a good dentist never will extract a tooth that still is basically healthy, I believe in doing whatever it takes to keep a family intact, if possible.
Should you stay married for the children’s sake?
However, if you realize that your marriage really cannot be revived, then you must get a divorce. Staying married for the sake of the children is a noble sentiment, but almost always is unhealthy and unworkable in real life. Let’s say your youngest daughter is three years old, and you commit to remaining in a loveless marriage until she reaches age 18. That’s 15 years of your prime adulthood sacrificed.
Can you do it? Probably. But all too often, couples that try to make that commitment just have resentments that slowly curdle over then next 15 years. The feeling of being trapped ends up poisoning their family relationships—first with the spouse, and then with the children. Even though the choice was yours not to divorce, you may end up secretly blaming your children. If you wait until your daughter is grown to divorce, that likely will be a bitter and vengeful divorce proceeding.
As a parent, you are expected to make some sacrifices for your children’s happiness. You cannot expect to sacrifice your chance at personal happiness and fulfillment and have everything come out all right in the future. A divorce will be better for the family than a toxic, hollow marriage.
A Good Divorce: Yes, it Is Possible
Once you and your spouse decide that the marriage is over, that is the best time to arrange to end the marriage in a positive way that provides closure. You still have enough of a working relationship with your spouse to reach an agreement on the fundamental issues: division of property, alimony, child custody, and child support. Your mutual commitment to the wellbeing of your kids will keep you on track.
Done properly, with mutual respect, a divorce can be an important lesson for your children. You can teach them how adults can act responsibly to settle their own problems in a cooperative manner. You and your wife may no longer be able to stay married together, but you can still show respect—and maybe affection—for each other and love for your kids.
Turn to Speaks Law Firm if you truly are interested in a non-adversarial divorce in North Carolina. First and foremost, we are a Wilmington family law firm: that means we are more interested in seeing a family flourish than in collecting a fee to break a family apart. Call us today at 910-341-7570 locally or toll-free at 877-593-4233. We will do our best to end your marriage while preserving a lasting, positive relationship among all the members of your family.
I sustained serious injuries during a motorcycle crash in Wilmington, NC. A bakery truck turned left in front of me, and I was thrown from my bike in the collision. Because of my broken femur, I couldn’t return to work for over a month. Is the truck driver responsible for my lost wages?
At Speaks Law Firm, we’re happy to hear you are recovering from your injuries. Frankly, you were luckier than many other crash victims. North Carolina motorcycle accidents where a rider is thrown from his vehicle have an extremely high fatality rate, and truck collisions in general often are deadly.
If the other driver failed to exercise reasonable caution on the road, he could be found legally liable for all the results of the accident. The fact that the truck turned left in front of you suggests that you probably have a valid legal claim. However, until your case has been thoroughly investigated by a North Carolina motorcycle wreck lawyer, it’s premature to draw any conclusion about liability.
The fact you were struck by a commercial vehicle also is intriguing. If the truck driver was following instructions as part of his work responsibilities, it is possible the company he works for could be found liable for your North Carolina truck accident. An investigation to determine the limits of liability for your injuries will include looking at:
- The company’s safety training for drivers
- How the company supervises its drivers
- The company’s delivery schedule
- The accident records of this driver and all other company drivers
The Wilmington motor vehicle accident lawyers of Speaks Law Firm want to remind you that if you were injured due to the negligence of another person, that person could be held liable for all the consequences of the accident, including:
- Pain and suffering
- The costs of your medical care
- Long-term disability or disfigurement
- Property damage
- Lost wages due to absence from your job
- Reductions in your lifetime earning potential due to your injuries
If you are interested in seeking compensation for any of these categories, connect with Speaks Law Firm at 910-341-7570 or toll-free at 877-593-4233. Our Wilmington personal injury law firm can work with you to get the best recovery or settlement available for your case.