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possible culpability or negliegence

Discussion in 'Justice System, Criminal Lawyers' started by cyndid18, May 18, 2010.

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  1. cyndid18

    cyndid18 Law Topic Starter New Member

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    Okay I have written on here about my daughters case-she has a wreck in 2006 that hurt herself and another lady. she is currently in jail and I now have a wonderful rep I found on here to help me as my lawyer has basically abandoned us. But my new friend has suggested a possible civil suit and here is why-My daughter who was 18 at the time of the wreck was kicked out of the house of her 21 yo bf and his Mom (the owner of the house)-the bf told me that he went looking for her. My new friend has raised the question-why did he go looking for her? At trial 3 1/2 yrs after the wreck it was told to us her BAC level was 3 times the legal limit. My new friend says at that level there had to be signs! another twist-Our lawyer is the dad of the ex-bf and the ex-husband of his Mom. He had told us prior to the trial that he was going to bring his son in to testify on her behalf but at the last minute didnt. Now he will not return calls or emails. I am looking at a possible sentence modification hearing and wanted some feedback from you guys as to grounds-and is the lawyer as culpable even if just by appearance or by not presenting his son or ex-wife therefore withholding evidence??? Ideas anyone?
     
  2. army judge

    army judge Super Moderator

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    JUST A THOUGHT: Who provided the alcohol for an 18 year old girl? Someone gave the girl alcohol. Was it her 21 year old paramour? Ask your daughter. Could it be that is why the 21 year paramour did not testify!

    Your NEW information could be life changing for your daughter and YOUR family.

    Pursue this as aggressivley as you can!

    Dram Shop Laws!

    Georgia has them, yes it does.

    What is Georgia’s “Furnishing Alcoholic Beverages to Minor Children” Statute?

    Under this statute, parents have a right of action against any person who sells or gives their child alcohol without the parents’ permission. Georgia’s Dram Shop Act does not preclude this cause of action, so long as the damages sought are for injury to peace, happiness, or feelings.


    Criminal Penalties for Furnishing Alcohol to a Person Under 21

    Under Georgia law, any person who furnishes alcohol to a minor is subject to a term of imprisonment of up to one year, payment of a fine of up to $1,000, or both.

    What is Georgia’s Dram Shop Act?

    Under Georgia’s Dram Shop Act, a licensed drinking establishment may be liable for injuries caused by an intoxicated person in two circumstances. The first is where the drinking establishment served alcohol to an underage person with knowledge that the person was underage and with knowledge that the person would soon be driving. The second circumstance is where the drinking establishment served alcohol to a noticeably intoxicated person with knowledge that that person would soon be driving. Under Georgia law, those who buy and drink alcohol are not permitted to recover damages from a drinking establishment if they injure themselves as a result of their own intoxication.

    http://www.edgarsnyder.com/drunk-dr...ing-laws.html#What_is_Georgias_Dram_Shop_Act?

    http://www.bfvlaw.com/UploadedFiles/Publications/radBC8829200527132411.pdf




    http://www.mitchellshapiro.com/html/dram-shop.html


     
    Last edited: May 18, 2010
  3. army judge

    army judge Super Moderator

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    Independent of everything else, you have also stumbled upon a plausible and valid defense for your daughter's appeal.


    Ineffective Assistance of Counsel.

    Talk to another attorney.

    You now need an appellate attorney.

    You can have the conviction reversed and remanded for a new trial.

    Do not give up.

    You now have more than hope, you have legal remedies!
     
  4. cyndid18

    cyndid18 Law Topic Starter New Member

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    the bf didnt give her the alcohol this time -I have asked her-her and her friend stole it from the friends sister. But John (my new friend and your recommendation) brought up a question no one has thought of aka new angle-Why did the BF go after her? why did they not notice she was drunk (to the tune of 3 times the legal limit)? did the lawyer drag this out to cover his family long enough for a statue of limitation ran out? are they culpable -negligent just by kicking her out even though she is the one that chose to drive? John asked me today did she do any community svc -aa meetings-AJ my lawyer did nothing to help her! Yes we could have done it ourselves but honestly I have known no one close enough to me to know the process but our lawyers daughter has 3 DUI's and only spent 30 days in jail. I just dont know what to do anymore! John is a Godsend or should I saw AJsent =0)-Thank you also for ALWAYS responding to me-My daughter knows you and John by name. She is in diagnostics now and we cant talk to her-so I am really low these last 2 days-I will get my Mama bear back as soon I can find the ammunition to take this whole family down!!! I need to get the records he has-any ideas how to do that without a POA from her? i paid him to rep her -how far will that get me?
     
  5. army judge

    army judge Super Moderator

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    No problem, Cyndid18.
    I hope your daughter is getting along as well as can be expected.
    I knew Brother Harris would have some solid ideas.



    You can have your daughter write a letter to her "attorney", requesting copies of her entire file.
    She might give her "lawyer" permission for you to pick up the records.
    Give that a try and see what response you get.

    There is another way, but let's try the easy way, first.

    Did she give you any indication why the BF came after her?
    Had they been arguing?
    Were they drinking in her BF's home?
    Was the BF's mother present?

    If, none of that is true, where were they drinking?
    What did they drink?
    The alleged friend (where the liquor was allegedly stolen), what's that connection?
    How old is that person?
    Did they drink in front of that person?


    Now, tell me a little more about this "friend" of hers.
    We're missing something, but we'll eventually connect the dots.

    _________________________________________________

    Changing directions a bit, but something you need to know.


    We have a son that was injured in an accident by a drunk driver, nine years ago.
    He was then given anesthesia incorrectly during a subsequent surgery, and is "brain dead", today!
    He was taken off all medical support devices, six years ago.
    He is fed using a "j" tube and given supplements.
    He's still here with us, and its all up to God.

    The physicians said he'd die after they removed the life support devices.
    In Texas, physicians can do that without the family's approval.
    But, he fooled them all.
    He began breathing on his own, immediately.
    But, he's brain dead.

    He was an assistant warden at a state prison.
    He loved his job.
    You just never know where life will take you on any given day.

    They actually asked us, did we want him "put down".
    Can you believe that.
    What kind of society have we become?
    How do you "put" anything "down", let alone a HUMAN BEING?
    Of course, we said, NO.
    They looked at us like we were crazy.

    We said, we'll leave the rest of to God and prayer.
    Well, he's still here with us.
    He's in a care facility, but God hasn't called him, yet.
    This happened in the summer of 2001.

    My wife swears that when she walks into his room, he recognizes her.
    Mothers know, so we keep up hope.
    I'm telling you this, because you have to keep up hope for your child.


     
    Last edited: May 19, 2010
  6. cyndid18

    cyndid18 Law Topic Starter New Member

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    AJ-thank you for sharing the story. God touches many people in ways we never understand nor are we ever meant to. His little secrets. No you do not put a human down and it is beautiful that he is still with us and it fills my heart with hope.
    Yes John is amazing-he has done more for us in the way of information than our other lawyer did for us in 3 1/2 years.
    To answer your questions:Her BF (at the time) said the reason he went after her was he was worried -didnt say why that I remember. Yes they had been arguing-he had accused her of being with someone else. They had drank at his house aka his mom's house before but not this time -I specifically asked her for John. His mom I assume was tired of them arguing that night because she too told my daughter she needed to leave. She had drank BEFORE she got there. She got there around 5'ish-ate-watched Grey's anatomy and slept until she was woke up where they fought some more and then she was kicked out and made to leave aka drive. She stole the liquor from her best friends sister who wasnt home at the time-her and her best friend were underage and I believe even the sister whose liquor it was also was underage at the time.
    I hope to hear from her today and see if I cant get a letter from her requesting a copy of her records. As i told John yesterday-we were told for 3 1/2 years that the county had lost her file-along with her BAC -but mysteriously 3 days before the trial they found everything.
    Honestly I want revenge on this lawyer as I now believe he protected his family at my daughters expense. I have met some amazing-honest-do good attorneys on here but this one is the one all the jokes are about.
    I understand the need for her to be punished but to be punished and abandoned by this person we trusted to help us and that we trusted -is a hard pill to swallow.
    God Bless you sir
    Cyndi
     
  7. jharris352

    jharris352 New Member

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    Army,

    Cyndi's daughter got drunk on her own by stealing some liquor from a friend. She came over to the Former BF's house where his Mother was home. Former BF is the son of present "lawyer." Lawyer drug out the criminal charge for four years on the theory that she would be over 21 when she finally went to trial. (I found that strategy odd) I can see other reasons to drag it out but he wasn't using any of them.

    1. He didn't use the time to put her through rehab, to get AA classes, to do volunteer community service like teen intervention.
    2. He didn't use the time to develop character witnesses or to strengthen his client's position at all. He just stalled.
    3. He didn't use the time to build a medical case for her lack of metabolizing alcohol
    4. He took the case for $1000 or something maybe $1500.

    All of that seemed odd to me.

    My theory is that he was trying to maintain control of her to direct action away from his family. His family didn't serve the alcohol, but I think they are definitely culpable in that when she arrived she was very drunk (more than 3x the limit so .24?) She had to be obviously drunk. She slept at their house for some amount of time but her liver was nor properly metabolizing the liquor. BF wakes her up screaming at her for something and both Mom and Bf throw her out of the house, basically putting the keys in a drunk person's hands so she could drive.

    I can't think of the tort off the top of my head but I smell liability there somewhere.

    I think the Lawyer/Dad stretched the case out to keep the focus on the criminal phase and to push things past the SOL on the Civil phase. Once he reached that point (I suspect) he pushed the case through without much work.

    Thoughts?
     
  8. army judge

    army judge Super Moderator

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    Why would it be better for her to be > 21 at trial? I can think of no credible legal reason to pursue such a strategy.

    The SOL to sue for professional malpractice is two years in GA.

    However, for fraud, this strategy wouldn't be in the "tricky" lawyer's best interest.

    If defendant fraudulently “defers or debars” plaintiff for bringing action, SOL accrues upon plaintiff’s discovery of the fraud. There, my friend, is your potential civil remedy that this dummy forgot!




    The delay made her look less like a confused, troubled minor, and more like an alcoholic adult.

    I agree, he stalled.
    That can, at times be valuable, yet in this case; it was detrimental.

    Legal malpractice suits are barred by GA'S SOL for professional malpractice.
    But, you see what I said above.

    His low fee, is also indicative of chicanery.
    No lawyer would take such a ridiculously low fee for such a complicated and lengthy case.
    Again, this is indicative of chicanery.
    he he were, indeed a family friend, he would have done the case "pro bono".






    Would you be looking for "duty of care"?
     
    Last edited: May 19, 2010
  9. cyndid18

    cyndid18 Law Topic Starter New Member

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    See AJ-isnt John wonderful-he is so smart and on top of things!!!! If the SOL is out but we didnt discover fraud till I spoke with John doesnt the SOL start then and not at the beginning? Yes he told me he was going to let it drag out till she turned 21 as they would go easier on her. But she told me recently the reason he gave her was-when the trial dates came up he didnt think she was mentally ready for the trial. Now his daughter who is not 22 has had 3 DUI's and has only spent 30 days total in jail. Now as far as I know she didnt hurt anyone but as John explained to me yesterday-DUI (and I would assume repeated DUI) shows somewhat of the intent to harm whether unintentional or not as you know if you drive that way there is a possibility of harm-or am I off base?
    I am willing to go at this in whatever fashion you two come up with as this SOG is on this Mama Bear's radar-and I want him to know I know what he did at the expense of the person he told me he had a vested interest to protect!
     
  10. jharris352

    jharris352 New Member

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    "duty of care" That would be just what I'm looking for.
     
  11. cyndid18

    cyndid18 Law Topic Starter New Member

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    a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence. (See: negligence, standard of care)
     
  12. cyndid18

    cyndid18 Law Topic Starter New Member

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    Breach of duty is part of a negligence lawsuit and the most important aspect in proving such an issue. If no duty was ever breached then no negligent damages are owed.

    In a negligence lawsuit there are four elements to consider: duty, breach of duty, causation and damages. For breach of duty, it must be decided whether or not the defendant, the one being accused of negligence, behaved in a way that a reasonable person would have under similar circumstances. If no duty is owed then there is no negligence lawsuit.


    To determine breach of duty's existence, a determination is made as to the standard of care and an evaluation of the defendant's conduct in reflection of that determined standard. If duty of care by the defendant can be proven, using the reasonable care standard, then negligence can be an issue. The defendant needs to have recognized the risks created by her or his actions and to understand what could happen from those risks taken. The general standard of care is then applied to the specific circumstances of the situation and the jury must establish whether the defendant's conduct was negligent.
    When the courts decide if duty was owed they consider the objective or subjective standard. Objective standard considers the defendant's actions against a hypothetical reasonable person. With the subjective standard, the court considers whether the tortfeasor, the person who is allegedly negligent, believes her or his actions were reasonable. For example, if someone attempts to rob an elderly woman in a parking lot and she happens to have a gun and shoots her attacker, the objective standard would ask if a reasonable person would have acted the same way. In the subjective standard the courts would ask the elderly woman if she thought she was acting in a reasonable fashion.

    Professionals are held to a higher standard of care than an ordinary reasonable person would be. Police officers, for example, must behave as a reasonable officer would do so rather than a reasonable person. The perspective of an officer would be different than an ordinary person and that difference matters in the court.

    Occasionally, statutes, or laws, will decide the reasonable standard of care rather than the courts interpreting the behavior. When statutes determine the standard of care owed, violations would be called negligence per se.

    If a plaintiff, the person alleging negligence, is unable to prove the defendant's negligence because pertinent information is inaccessible, then the plaintiff can rely on res ipsa loquitur. What this means is that the act speaks for itself and needs no other information to determine negligence. But, in order to use this, the plaintiff must prove two things: the event which injured themselves only happens when negligence has occurred; the item or instrument which caused the injury was under exclusive control of the defendant and the plaintiff's injuries were not due to their own actions.

    The key factor to remember in considering negligence is whether the duty of care was ever owed to the plaintiff, by the defendant, and whether or not that duty was breached.
     
  13. jharris352

    jharris352 New Member

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    It's almost like being in law school all over again!
     
  14. army judge

    army judge Super Moderator

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    WOW, Cyndid, that was great!
    By jove, I think she's got it!

    Brother Harris, that was like a trip in "Wayback Machine".
    My brain hurts. :yes: :nuts
     
  15. jharris352

    jharris352 New Member

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    You know what they say: Don't mess with Momma Bear, you get Mauled.:no::dgrin
     
  16. cyndid18

    cyndid18 Law Topic Starter New Member

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    haha-now to find an attorney to handle this-is this new evidence for her to get a sentence mod hearing or is this just a way to take him down? also do you two believe the SOL has expired on the ex-BF and ex-wife? By the way i politely asked for a copy of her records and mailed her a POA for myself and her husband-she knows someone in there and they have told us she knows we know she is there-I want blood and the money to pursue her case!
     

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