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If you have been charged with a felony offense, contact an experienced Riverton Utah criminal defense lawyer.
For felony cases, a judicial screening decision is made within a week or two of the initial appearance. Unlike the exparte review at the complaint stage, this screening involves an adversarial process where the prosecution presents witnesses and the defendant, now represented by counsel, may cross-examine. The defendant may present his or her own evidence but in practice rarely does so, preferring instead to learn as much as possible about the prosecution’s case without divulging his or her own defense. The magistrate may dismiss the charges or may allow only a lesser charge than that alleged in the complaint.
Another screening stage for felonies is grand jury review to determine whether an indictment should be returned against a defendant. The federal system and about half the states give felony defendants a right to grand jury review. A grand jury is made up of citizens who are called to meet regularly to review cases during a set term of perhaps several months. The traditional size is twenty-three people, of whom a majority of twelve must agree in order to indict a defendant. This majority corresponds to the standard size of a trial jury. The grand jury review procedure is significantly different from trial and from the preliminary hearing; it is in fact more akin to a magistrate’s review of a complaint. Only the prosecution presents witnesses; the hearing is held in secret; and the defendant has no right to be present.
If the defendant is indicted by the grand jury, the indictment substitutes for the complaint as the formal charging document. The defendant is arraigned in the general trial court on this document and is asked to plead guilty, not guilty, or, where permitted, nolo contendere. A date is then set to hear pretrial and trial matters.
From the point of filing the complaint, and sometimes before, until trial, the defense counsel and prosecutor may engage in plea negotiations. This may involve either an agreement to dismiss some charges if the defendant will plead guilty to others or, in some jurisdictions, a promise of a lenient sentence or a recommendation for one in exchange for a plea of guilty. Challenges to the institution of the prosecution (such as challenging the makeup of the grand jury) or the sufficiency of the charging instrument, as well as requests for discovery and motions to suppress evidence, typically are made before trial. These motions may produce a dismissal for a defendant without the need for a plea bargain.
After a defendant has been arrested and charged with a crime, if there has not been a dismissal (on a pretrial motion) and the defendant has not entered a guilty plea, the case goes to trial. Several features distinguish the American criminal system from the civil system. These include (1) the presumption of a defendant’s innocence, (2) the requirement of proof beyond a reasonable doubt, (3) the right of the defendant not to take the stand, (4) the exclusion of evidence obtained by the state in an illegal manner, and (5) the more frequent use of incriminating statements of defendants as evidence. Hire the services of an experienced Utah criminal defense lawyer to represent you in a felony trial.
An American trial uses an adversarial process. The defendant is represented by an advocate representing his or her position, while the state’s prosecutors represent the state’s interest in punishing offenders. The sides argue in front of an impartial decision maker. In all fifty-two jurisdictions the defendant has a right to a jury trial for all felony offenses and for misdemeanors punishable by more than six months’ imprisonment.
If a defendant is convicted at trial or pleads guilty before a trial takes place, the court will set a date for a sentencing hearing at which both sides will present evidence relating to the appropriate sentence. While a few jurisdictions allow for sentencing by a jury in noncapital cases, most assign the sentence determination to the court. Typically, three different types of sanctions can be used: financial sanctions (e.g., fines, restitution orders); some form of release into the community (e.g., probation, unsupervised release, house arrest, drug rehabilitation); and incarceration in a jail (for lesser sentences) or a prison (for longer sentences). The most severe form of punishment is the death penalty, the availability of which is determined by each individual state. The legislature typically sets the maximum penalty available for an offense. It sometimes also narrows the sentencing options for an offense by excluding community release or by setting a mandatory minimum term of imprisonment. Increasingly, court sentencing decisions are restricted by guidelines that suggest a guideline sentence for offenders of a particular sort committing offenses of a particular sort. Some guideline systems are more binding than others.
A defendant generally has a right to appeal a conviction to the next higher court in the particular system’s judicial hierarchy. For misdemeanors tried in a magistrate court, this may mean a new trial in the general trial court. The right to appeal is not necessarily limited to those convicted at trial, however; a defendant who pleads guilty but who receives a more severe sentence than he or she expected, for example, may be able to appeal, challenging his or her plea. Appellate review of the appropriateness of the sentence is generally not permitted, although review of a deviation from sentencing guidelines may be. The most common objections on appeal concern admission of evidence claimed to be improperly obtained (generally the most successful claim), insufficient evidence to support the conviction, incompetent counsel, improper identification procedures, and improper admission of a defendant’s confession or incriminating statements.
After exhausting possibilities for appellate review, a convict who has not gained release may seek relief through postconviction remedies, sometimes called collateral attacks on conviction. Sometimes this is done through the writ of habeas corpus, but it is commonly governed by a more modern statutory procedure. After exhausting postconviction remedies in state court, state prisoners who have a constitutional claim may present the same claim for review by the federal courts under federal postconviction remedy procedures. In both state and federal systems the process of appellate review of a denial of a postconviction petition follows the same appellate course that the direct appeal did.
Offense definitions are typically made up of three kinds of objective elements— conduct, circumstance, and result elements— each accompanied by a corresponding culpability requirement of purpose, knowledge, recklessness, or negligence. Some doctrines will allow a defendant to be treated as if he or she satisfies a required element that is not in fact present, if the defendant does satisfy the requirements of a doctrine of imputation. For example, a defendant may be liable for an offense that requires conduct that the defendant did not commit if the conduct, performed by another person, is imputed to the defendant by the complicity doctrine. Finally, a defendant who is apprehended or stops before completing an offense may be held liable for an inchoate offense on the basis of his or her intention to commit or encourage conduct toward the commission.
Offense definitions consist of two kinds of elements: objective elements (conduct, circumstance, or result elements) and culpability elements (typically purpose, knowledge, recklessness, or negligence). Each objective offense element has a corresponding culpability element, and the culpability level may be different with respect to different objective elements of the same offense.
Each offense definition typically has at least one conduct element, which satisfies the act requirement inherent in all criminal offenses. Most offense definitions include one or more circumstance elements as well, defining the precise nature of the prohibited conduct (e.g., having intercourse with a person under fourteen years old) or the characteristic of a prohibited result (e.g., causing the death of another human being). A minority of offenses contain a result element. Homicide offenses, personal injury offenses, and property destruction offenses are examples of this minority of offenses; they require a resulting physical harm in order to sustain a conviction for the offense. Other offenses, such as endangerment, indecent exposure, and falsification, may require the person to cause a risk of harm or to cause an intangible harm, such as alarm or a false impression.
Whenever an offense definition includes a result element (e.g., homicide requires a death), a causation requirement also is implied. That is, it must be shown that the person’s conduct caused the prohibited result. This required relation between the defendant’s conduct and the result derives from American notions of causal accountability. The rules of the causation doctrine are the means by which the law attempts to define the conditions under which such causal accountability exists.
Establishing a causal connection between a defendant’s conduct and a result typically has two in de pen dent requirements. First, the conduct must be a “but-for” cause of the result. This is sometimes called the factual cause requirement. Second, the strength and nature of the causal connection between the conduct and the result must be sufficient. Legal cause, or proximate cause, as this is sometimes called, requires that the resulting harm be “not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense.”
Conduct is a factual (but-for) cause of a result if the result would not have occurred but for the conduct. In other words, the conduct is a factual cause if it was necessary for the result to occur. The factual cause inquiry is essentially a scientific and hypothetical one. It asks what the world would have been like had the defendant not performed his or her conduct. Specifically, would the result still have occurred when it did? If the answer is no, then the defendant’s conduct was necessary for, and thus was a but-for cause of, the result.
In contrast to the scientific inquiry of the factual cause requirement, the proximate (legal) cause requirement presents essentially a normative inquiry. Deciding whether a result is “too remote or accidental in its occurrence” or “too dependent on another’s volitional act” obviously calls for an exercise of intuitive judgment. The inquiry cannot be resolved by examining the facts more closely or having scientific experts analyze the situation. Ultimately, the decision maker must determine how much remoteness is “too remote” or how much dependence on another’s volitional act is “too dependent” for the result to have a just bearing on the defendant’s liability. Typically the foreseeability of the result following from the defendant’s conduct is a highly influential factor in a determination of proximate cause.
A defendant’s conduct may be harmful; the victim may have a claim in tort; and fairness and utility both may suggest that the defendant rather than the victim should bear the loss for the injury. But without culpability in the defendant, causing the injury may be seen as lacking sufficient blameworthiness to deserve the condemnation and reprobation of criminal conviction.
In place of the plethora of common-law terms—wantonly, heedlessly, maliciously, and so on— the criminal law defines four levels of culpability: purposely, knowingly, recklessly, and negligently. Ideally, all offenses are defined by designating one of these four levels of culpability with regard to each objective element. If the objective elements of an offense require that a person take the property of another, the culpability elements might require, for example, that the person know that he or she is taking property and that he or she be at least reckless about it being someone else’s property. An offense also may require culpability with regard to a circumstance or result beyond what the objective elements of the offense
If you have been charged with a crime, contact an experienced Riverton Utah criminal defense lawyer immediately. Your liberty is at stake.
When you need help defending against criminal charges in Riverton Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Wills in Utah pass through the probate process in one of two ways: either formally or informally. The distinction is a matter of an in-court hearing. A more complicated estate that requires a hearing to open or close probate is formal. Probates that dispense with hearings because an estate has limited assets are informal. You cannot challenge formal probate after it is closed. However, if the probate process is informal, you can contest the will up to three years after the decedent’s death. The executor of the will decides whether probate will be formal or informal.
• File a petition with the probate court to request a formal testacy proceeding. Under Title 75 Section 3-401 of the Utah Legislative Code, you can either ask the court to set aside an informal probate that has already been closed or you can ask that a probate in process be stopped from closing until you explain your objections to a judge. You must state your reasons for objecting in the petition.
• Serve notice to all interested parties that you have filed a petition to either block or reopen probate. Title 75 Section 3-403 of the Utah Legislative Code lists exactly who you must notify, but in general, it includes the decedent’s spouse and children, any more distant relative who would be in line to inherit under Utah’s laws if the decedent had died without a will, everyone named in the will and the executor of the estate. Utah also requires that you publish a notice in a newspaper for anyone with rights to the estate who you may not know about or anyone whose current address you don’t know.
• Appear at the testacy hearing when the court assigns a time and place. You might have a great deal to lose if you cannot convince the judge that your objection is reasonable, so even if you have represented yourself up to this point, you should consider hiring an attorney to appear with you in court. For instance, some people put clauses in their wills that if any of their beneficiaries contest and lose, they receive nothing, not even a nominal bequest they might have received otherwise. But under Title 75 Section 2-515 of Utah’s Code, you cannot be punished if you win your contest or have a legitimate reason for objecting. For example, a penalty clause is unenforceable if you are objecting to the will because you have a more recent, valid one in your possession. It is only enforceable if you claim that the decedent was incompetent when he made his will and his estate can prove that he was not.
• Before learning how to contest a will, it is necessary to understand what constitutes a valid will. So the first question is – is there a valid will?
• Expressly revoke all previous wills and codicils (Even if there are none);
• Appoint a personal representative;
• Appoint a guardian where minor children are (or may be) involved;
• Provide a formula or method for distributing your property.
Your will may also want to include information such as: Provisions leaving specific items to specific people; Wishes concerning funeral and burial arrangements; Waiving of any requirement of a bond for the personal representative. Additionally, the will should be signed by the testator (The person making the will) or in the testator’s name by an individual in the testator’s presence. It should also be signed by a minimum of two individuals who have signed after witnessing either the signing of the will or the testator’s acknowledgement of the will.
When a will is successfully contested, the testator’s/testatrixes prior will is then considered to be his/her will. If there was no prior will, or if the will is lost and no one has an executed, and valid copy of the prior Will, the testator is treated as if he/she died intestate (without a will.) If the person is deemed to have died without a valid Will, the court will then distribute the estate to those who would take the estate assets on an intestacy basis. A noted previously, a will has to be in writing, in the correct form, and executed according to the laws of the State, in order to be valid. Most of the cases contesting wills emanate from issues dealing with improper form or execution of a will, and the majority of the time, involve wills that were prepared by individuals instead of attorneys.
It is typically very difficult to challenge a will. Approximately 99 percent of wills pass through probate without issue. Wills are seen by the courts as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way. If you challenge a will and are successful, it can be voided in its entirety or just in part. Sometimes, a prior provision, such as from a previous will can be reinstated. If the entire will is voided, the court will distribute the property as if no will had ever existed. This distribution follows intestacy laws, and is guided by familial relationships.
The law requires that only adults 18 years of age or older have the capacity to create a will. Minors lack the capacity to form a legal will. However, in some jurisdictions, minors who serve in the military or minors who are married are given the right to make a will. Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation. More specifically, the person must understand:
• The extent and value of the property;
• Who he or she is expected to provide for and who the beneficiaries of the will are;
• The disposition he or she is making and what a will means; and
• How these elements relate in order to form a distribution of property.
You can challenge a will by showing that the will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator. The term “undue influence” merely means that the person lacked the free will to bargain because of the manipulator. If the executor is trying to carry out the provisions of an outdated will, the newer will can trump this older will. Typically, there are requirements to destroy the older will. It is best to always destroy or show intent to void any outdated will, should one decide to change or update his or her will. Many people even state in the new will that the will is intended to trump and/or void out the previous will. This is why dating the will documents is so important. The court’s interest is to fulfill the wishes of the testator. If a valid legal will surfaces that is dated more recently than the will being executed, the court is likely to follow the newer will. Each state varies as to what constituted a voided and updated will, so be sure to check with your state’s laws.
A typed hard copy of the will must be dated and signed by the testator in the presence of at least two adult witnesses. Vermont requires three witnesses. Most states require that the witnesses not be people who are named as heirs in the will. If in one of these states, a witness is named in the will; his or her gift may be voided, but not the rest of the will. About half of the states do allow handwritten, unwitnessed wills. These are called “holographic” wills and they must be written and signed entirely in the testator’s handwriting and in some states, they must be dated. Holographic wills are the easiest wills to challenge, because there are no witnesses. In the case of a holographic will, the court must be convinced that the entire thing is in the testator’s handwriting and that it was created to serve as a will of the testator.
Each state has its own laws about what a valid legal will must contain. Most states require that the will:
• explicitly states that it is the testator’s (the person who created it) will;
• includes at least one substantive clause, such as leaving a certain piece of property to a certain heir; and
• appoints a personal representative (executor or executrix) to be responsible for invoking the terms when the time comes. In many states, the court will appoint an executor and enforce the will, even when the will names its own executor.
There is no requirement that a will should be notarized. However, many people include a self-proving affidavit in their wills. This is a sworn statement that the witnesses sign in front of a notary public, which relieves the witnesses of having to come to court later to swear to the validity of the will
As long as the will was valid and legal according to the laws of the state where the testator had his or her permanent home, then the will is valid in any state where the testator dies. A will can be very beneficial to a descendant’s family and loved ones, but there are times when a will should be given a second look and possibly amended or scrapped. If you believe one of more will provisions shouldn’t be enforced, you may want to get the opinion of a legal professional. Get started today and find an experienced, local estate planning attorney. Not everyone can contest a will. A lawsuit brought to challenge the validity of a last will and testament can only be filed by certain people who would be personally and financially affected by the will’s terms if it were to be accepted by the court as it is. In legal terms, these people are said to have “standing.”
An heir-at-law is someone who is so closely related to the decedent that she would have received a share of the estate if the decedent had died without a will. Heirs-at-law have standing to contest a will. Property passes to heirs-at-law in a process known as “intestate succession” when someone dies without a will. In most states, this means his spouse or direct descendants inherit first. Direct descendants include his children or grandchildren. Parents and more distant family members, such as siblings, would only inherit if the decedent wasn’t married and left no living children or grandchildren. If a decedent was survived by three children but only two are provided for in his will, the third child should have legal standing to file a will contest. But this doesn’t necessarily mean she would win the case. She can’t challenge the will simply because she has standing and she wasn’t named in it. She must have cause. This means that she would have to establish to the court’s satisfaction that the deceased didn’t intentionally cut her out of the will, or that will isn’t valid for some other reason. Perhaps the deceased was under duress or was mentally incapacitated at the time he wrote it. The will might subsequently be thrown out due to its invalidity, and the estate would then be distributed as though the deceased had died intestate or without a will.
Any person or entity named in an older will would have sufficient legal standing to contest a more recent will if he has subsequently been cut out of the recent document. He would also have standing if his share of the estate was reduced. Likewise, if the individual was named as fiduciary or executor of the estate in the first will, but he’s been replaced in a subsequent will, he should have adequate standing to challenge the more recent last will and testament. The same caution applies. These people would have to establish that the subsequent will is invalid for some reason.
You most likely don’t have legal standing to file a will challenge if you weren’t named as a beneficiary in another will, or if you’re not an heir-at-law. This is the case even if you suspect that the will is invalid.
Minors typically cannot contest a will because they lack the right to initiate any legal proceeding until they reach the age of majority. Most states permit a parent or guardian to challenge a will on a child’s behalf, however.
A potential complication is that some wills include no contest clauses. These state that beneficiaries will lose the inheritance the will gives them if they unsuccessfully challenge it, losing the will contest in court. Otherwise, the court’s verdict would prevail. Of course, a beneficiary really has nothing to lose by challenging the will if she’s been cut out of it entirely.
Will contests are a complex area of law. Consult with a lawyer who specializes in this type of probate matter to find out if you have legal standing and if you have possible grounds—a supportable reason why the will should be overturned.
When you need a probate lawyer to contest a will in Utah, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We want to help you.
When Thomas Jefferson assessed the pros and cons of legitimating divorce shortly before the American Revolution, he came out firmly on the side of divorce. There could be problems, he conceded, with dividing marital assets, and although he assumed a man of any age could remarry with ease, he was concerned that a woman beyond a certain age might have difficulty finding a new partner. Still, he was convinced that the right of divorce would improve the status of women. In a world where the repudiation of a spouse had been a husband’s prerogative, access to divorce, he asserted, would restore “to women their natural right of equality.” That Jefferson envisioned divorce as a woman’s remedy while representing a husband bent on blocking his wife’s separate maintenance is not without some irony. Yet the natural rights language he used to support a woman’s freedom to sever the bonds of matrimony presaged the rationale he would use for severing the bonds of empire. “No partnership,” he declared in an argument that anticipated the Declaration of Independence, “can oblige continuance in contradiction to its end and design.”
The parallels between marriage and government in Jefferson’s thinking are instructive in considering the legal status of women during the founding period. The sweeping legitimation of divorce in the wake of the Revolution presents a provocative alternative to the Constitution’s silences on women. That is not to say that women were written out of the Constitution.
The legalization of divorce in the new nation was swift and widespread. There had been little interest in divorce before independence, and apart from in Puritan jurisdictions such as Connecticut, formal divorces were rare. In the United States, as in France, revolution was the handmaid of divorce. Concern with providing for divorce arose with the political turmoil of the 1770s and a Privy Council ruling against Pennsylvania in 1773 that designated “Acts of Divorce in the Plantations” as “either Improper or Unconstitutional.” When divorce bills from New Hampshire and New Jersey were also disallowed, the Privy Council instructed colonial governors to void all future provincial divorces. With independence those colonies that had been overruled by the Privy Council provided for divorce in new states statutes. Other states followed suit. By 1795 a disaffected spouse could put an end to a marriage in a local circuit court in the Northwest Territory. By 1799 twelve states in addition to the Northwest Territory had recognized the right of divorce.
The stunning nature of this transformation is best appreciated when balanced against late-eighteenth-century English practices. Fault divorce as we have come to call it in the age of no-fault was a legal option that departed significantly from the English parliamentary and ecclesiastical precedents on which it was based. In its gender-neutral approach to the fault, in the completeness of its dissolutions, and in the access it afforded litigants, American divorce diverged dramatically from its English roots. Indeed, from both a substantive and procedural perspective, divorce law in the early republic was light years beyond its English equivalent.
Clearly the Revolution played a role in reshaping the law of husband and wife. The right to end an adverse marital partnership was a direct byproduct of the frustration experienced under an adverse political partnership. At a tangible political level, then, it was independence that freed state legislatures to depart from English law. At a symbolic level, moreover, it was independence that provided them with a prototype for divorce and nowhere more than in its most celebrated text. Consider that in letting the facts be submitted to a candid world, the Declaration of Independence at once explained, decreed, and sanctified a divorce from the bonds of empire—and from the bonds of empire to the bonds of matrimony it was a short conceptual step.
As Rousseau asserted in The Social Contract, families are the first models of political societies. That common maxim of Western political theory acquired a new and expansive meaning in the American setting. The words “brethren,” “consanguinity,” and “kindred” in the Declaration not only exemplify the easy inter changeability of family and state in Enlightenment thinking but also mark their transfiguration. Severing the bonds of empire entailed the radical separation of two peoples who were as intimately related as the members of one family. That family, to paraphrase the end of the Declaration, was no more, and the two peoples, once knitted together as one, were to regard each other now as enemies in the war that was already under way. As this imagery suggests, the Revolution predisposed Americans to think of themselves in declaring independence as dissolving one family and, at the same time, as constituting another. The significance of that image is even greater than has been generally recognized. The Revolution not only killed the king, metaphorically speaking; it separated the family.
Although the Declaration conjures up a schism between male kinfolk, the image of the severed family could extend beyond filial and fraternal bonds. Like the Sons of Liberty, the warring brethren, and the founding fathers, husbands, and wives were prominent figures in the contemporary political imagination. Scholars exploring the centrality of consent in antipatriarchal representations of government have found that allusions to marriage only increased in the early republic as conjugal ties came to supplant filial ties in popular images of the state.9 Of course the limits of consent in Anglo American marriage law enabled marriage to serve as a conservative and stabilizing model for the new republic. Marriage, after all, was a public, prepackaged contract that was impervious to the wills of the contracting parties. To put it in political terms, you could say that a wife, having contracted for her ruler, was consigned to his rule for life. Americans of the post-Revolutionary era were not altogether comfortable with such an image, but neither were they prepared to abandon it completely. Both their discomfort with the traditional legal model of marriage and their reluctance to adopt a thoroughly contractual alternative illuminate the degree to which social contract theory intertwined with their perceptions of marriage and divorce.
It is precisely because marriage in its consensual-but-indissoluble form stood as a far-reaching metaphor for the existing political order that it could serve as a convenient hedge against incipient political upheaval. A common analogy for the relationship between rulers and the ruled, it had been exploited by royalist defenders of Charles I to equate Parliament’s rebellion with the ludicrous prospect of a wife divorcing her husband. Gender was central to the effectiveness of the analogy. The figurative use of a divorce by a woman to signify the anarchic breaking of a sacred contract, thereby subjecting the action to ridicule, intimates that domestic rebellion enjoyed less credibility than political rebellion. But it also reveals parallels between the two rebellions in the grain of Anglo-American political thinking. The advent of the American Revolution turned the thrust of the analogy on its head, for just as divorce could serve to discountenance revolution, revolution, especially a successful one, could serve to legitimate divorce. Independence made the principle of indissoluble marriage more problematic.
The Declaration of Independence endowed the women and men of the Revolutionary era with an elegant and eloquent example of how to dissolve a sacred contract. Resting as it did on its purported proof of English despotism counterpoised against colonial innocence, its argument unfolded very much like that of a petitioner in a divorce suit who piled up and compounded the alleged causes regardless of the statutory grounds. Sacred contracts are not dissolved casually, and the long and arduous route to the decisive stage of separation, ran the argument in the Declaration, was determined by the respondent’s cumulative and unremitting guilt. In unmistakably Lockean language, the Declaration averred that severing the bonds of empire was not undertaken for light and transient causes, but only in the wake of a long train of abuses and usurpations to which the petitioner had submitted patiently. So intense and sustained were these abuses—or so flagrant was the defendant’s breach of contract—that it was not just the right but the duty of the petitioner to seek a formal dissolution of the union. The juristic language, the familiar truths, the judicious caveats, the assembled facts—none of these could obviate the unbounded possibilities that lay at the heart of the Declaration, which was shaped so as to justify the right to begin all over again. What was written unequivocally into this other foundational text for the new nation was the principle of the second chance.
If fear of endless dissolutions and reconstitutions ran barely below the surface of post-Revolutionary culture, it was assuaged by a measure of faith in the justness of the Revolution. The connections between the political ideology of a just revolution and the liberating potential of a just divorce code were strong, durable, and rooted in the seventeenth century; the Revolution only served to strengthen them yet no matter how cautious or conservative the legislative impulse to institute divorce was, legislators were applying liberal political theory to the institution of marriage. It is precisely because they grasped the radical possibility of extending notions of consent beyond the initiation of the marriage contract that they were reluctant to call divorce what it was without exhortations and evasions. It is precisely because they sensed the liberating and even anarchic potential in the notion of the second chance that they could inscribe lifelong monogamy into the preamble of a state divorce statute. Breach of contract, after all, was a pliant idea, and fault could edge into no-fault if grounds were too casual or too numerous.
At issue, of course, is what effect did applying liberal political theory to the institution of marriage have on the status of women. Are we to read the suits women initiated against their husbands as acts of liberation? In most cases, the answer is probably no. We need to balance Jefferson’s sanguine prediction about the effect of divorce on women’s “natural right of equality” against the inequities of marriage and the legal system. Whatever the protections lifelong monogamy may have offered women, they were weakened with advent of divorce. As economic dependents confronting an all-male legal system that embraced the double standard, women suffered structural disadvantages at the hands of divorce law that are only too apparent. But we should not reject the liberation paradigm altogether. To the extent that suing for divorce was a legal option that depended on the voluntary, active, and even tenacious participation of female plaintiffs, it represented a reconfiguration of the marriage contract. The old common law legal fiction that husband and wife were one and the husband was the one could no longer hold quite the same authority once divorce challenged the male-dominated corporatism of marriage. In a world where the repudiation of a spouse had been a husband’s prerogative, we should not dismiss the import of a woman’s right to repudiate her husband in a court of law. One thing is certain: divorce by a woman no longer represented the anarchic breaking of a sacred contract.
• The husband was impotent at the time of marriage and this was not known to the wife at the time of marriage
• Either spouse engaged in adultery during the marriage.
• One of the spouses has deserted and hasn’t come back for more than a year.
• Failure to provide the other spouse with common necessities of life.
• Other spouse is a habitual drunkard
• Other spouse has been convicted of a felony offence
• The spouse seeking divorce has been subject to cruel treatment resulting in mental distress of bodily injudge.
• The spouses have been living separately for at least three years under a separate maintenance decree.
• The other spouse is suffering from permanent and incurable insanity. This must be proved through expert medical testimony.
An experienced Woods Cross Utah divorce lawyer can help you determine the grounds for your divorce.
If your spouse has filed for divorce, you should immediately seek the assistance of an experienced Woods Cross Utah divorce lawyer. You have the right to a legal counsel and you should exercise this right. A divorce trial can be complex.
In preparing a case for trial a lawyer creates a double helix of norms. One strand is dominated by narrative and the other by informal logical inference or argument. Narrative is the story of events, actors, backgrounds, actions, and motives organically related to express a moral-political significance, a human meaning. As one might hear it in the beginning of an opening statement, “This is a case about loyalty and betrayal.” “This is a case about keeping promises.” Argument is a logical pattern of propositions, in this case leading to assent to a final proposition (a “legal element”) that must be proven or disproved. Argument, like all rhetoric, can have multiple audiences. It is this double helix of narrative and argument that a lawyer calls “my theory of the case.” Concretely, it will have its most systematic expression in the combination of opening statement (narrative) and summation (argument). It is necessarily abstract. It omits much of the concreteness of what the trial will reveal; it is a “cut” into the evidence. Good lawyers understand what “cut” to make, which inspired simplification to pursue. They also understand that the trier of fact will come to understand that even the best “factual theories” are rather too simple.
How does a Woods Cross Utah divorce lawyer reach that theory of the case?
Most cases begin with a client interview, typically in three stages. The first is explicitly practical: the Woods Cross Utah divorce lawyer asks the client a set of open-ended questions to determine how he defines the problematic situation in which he finds himself and what resolution he seeks. That definition and that desired result are not absolutes—they are subject to refinement and modification in dialogue with the attorney—but the ethical rules give the client’s ultimate definition of his problem and expected solution hegemony over any attempt by the lawyer to dictate the goal of the representation. Second, the lawyer asks the client another set of somewhat more directive questions in order to construct a relatively comprehensive chronological reconstruction of the central events, identified from the first portion of the conversation. Finally, the attorney begins to ask specific questions that serve to test the viability of possible factual theories that may form aspects of a unified theory of the case. These questions are “theory-driven”— they seek to verify or falsify possible narratives to an acceptable degree of probability.
There are limits on the stories the lawyer may tell. The possible narratives are constrained, with increasing concreteness, by
(1) the criminal laws against client perjudge and attorney subornation of perjudge and disciplinary regulations prohibiting attorneys from misrepresenting facts to the court or presenting known perjudge;
(2) the calculations of the party or the attorney that misrepresentation is likely to be implausible; and
(3) the settled moral dispositions of client and attorney not to lie. At times the client’s account of events also limits the stories that may be told at trial. At other times the client’s story may be fitted easily within a number of possible full narratives. At still other times the client’s initial story may be reshaped to allow its integration into factual theories that did not obviously present themselves. This last need not be a kind of manipulation that leads away from the truth, because the client’s initial recollection may suffer from distortions of perception, memory, communication, or a misguided desire to tell what he falsely believes to be a helpful story. At other times, since different narratives have different legal consequences, it is the client’s goals for the litigation that determine the theory.
The process of developing factual hypotheses runs something like this:
One listens to a story, which triggers one or more potentially applicable legal theories. Contemporaneously, or subsequently, one reviews the story in light of each legal theory. If a story describes what happened in a way that completely coincides with a legal theory—that is, if the story can be termed a “legal story”—one may not bother to consider additional factual hypotheses.
But the comparison of a story with a legal theory may reveal that the story does not explain what happened in a way that fully activates or defuses the legal theory. Or the comparison may reveal that the story is but one of a number of reasonably possible ways that the legal story may be told. In either situation one is likely to “conjure up” other stories about what happened that might activate the legal theory. These factual possibilities then become the bases for ensuing investigation.
As investigation proceeds, the possibilities are limited by the need to maintain the credibility of the client’s basic story and by the increasing probability that there will be relatively more decisive contradictory evidence as the story becomes more fanciful. These further considerations, built into the trial, limit the rhetorician’s natural desire to tell the most plausible story regardless of its truth. Plausible but false stories are also forbidden by rules that prohibit the client from telling or the lawyer from presenting evidence of stories about whose truth they have serious subjective reservations, regardless of whether those stories can effectively be attacked at trial.
There are also what might be called extrinsic reasons to choose one among a range of possible stories to the judge. One story, but not another, might permit a desirable remedy, such as injunctive relief or punitive damages, or avoid an especially unwelcome consequence, such as commitment to a state mental institution. One story but not another might allow for recovery against a certain defendant more able than another to compensate the plaintiff for his injury. One story but not another might pass muster under a statute of limitations. What allows the variation are variable facts subject to different plausible interpretations, such as “What was the defendant’s state of mind at the time this occurred: innocent, negligent, reckless, malicious?” The advocate will not usually be asking the question “Well, what was his state of mind?” but rather “What are the consequences of alleging it was this rather than that?” and “Do we have sufficient evidence to survive a directed verdict on this point?” and also tell a persuasive story to the judge while not violating prohibitions on suborning or assisting perjury or presenting false evidence? What must be recognized are the practical considerations that dictate the factual statements made, often in the language of past occurrence.
The very story of “what happened” is determined in part by a judgment about what is likely to be done in response to one or another version. As John Dewey put it approvingly, it follows an “experimental and flexible logic” that is “relative to consequences rather than to antecedents.” Facts are, to this limited extent, purposes.
After the initial interview with a client, a lawyer will set about the process of factual investigation. This is guided most generally by both strands of the double helix. If the client bears the burden of proof, the attorney must gather sufficient evidence that a secondary finder of fact, be it judge or appellate court, cannot say that there was insufficient evidence for a judge to have reasonably concluded that each element was established. He will also seek to gather evidence—testimonial, documentary, or physical—that directly supports the theory and theme of the case, concretely presented in opening statement, of which he or she actually hopes to convince the judge, the primary finder of fact.
The attorney will follow a relatively straightforward hypothetico-deductive logic in his investigations. With regard to the theory of the case, he or she will ask this question: “If this fact (whether an element or simply a factually or normatively significant event) is true, what else would or might be true?” (“If my client really was at home, rather than at the crime scene, perhaps he made a telephone call of which there is a record or a witness …”). Just as in scientific inquiry, this process can never lead to anything but probability, for there may be alternative descriptions or explanations for the evidence. Even in the case of so-called direct evidence, say eyewitness evidence, the alternative explanation may be the lack of credibility of the witness. As a purely logical matter, this method, like all scientific method, commits the fallacy of affirming the antecedent (“If it was raining, the streets will be wet. But the streets are wet. Therefore, it was raining.” Quod non sequitur). This inevitable “flaw” in empirical inquiry is what makes it possible to produce a rhetorically compelling mass of evidence for a proposition that is quite false.
The party who does not bear the burden of proof most often has his or her own version of events and will thus go through the same process as the party who does. And each will also seek to demonstrate that facts which ought to be true if the opponent’s theory of the case were true are in fact not so, thus seeking to “falsify” the proposition that the opponent seeks to establish. Indeed, the party who does not bear the burden of proof may present a purely “negative” case, simply attacking the opponent’s case and then arguing that he has not met his burden of proof, although the received wisdom is that presenting an alternative theory, if possible, is likely to be more successful.
Factual investigation is thus theory-driven. Something may turn up in discovery or investigation that will cause the lawyer to revise his or her theory and redirect the inquiry consistent with a new set of hypotheses. After all, one of the bases of plausibility is the extent to which a theory is “supported” (to beg a thousand questions) by the evidence. But it is the felt necessity to present a full factual theory and theme—the concrete necessity to give an opening statement—that directs and structures the process.
As the evidence accumulates, the lawyer will continue to evaluate the theory and theme of the case and so the opening statement. The most important decision a trial lawyer makes is the precise cut, the inspired simplification, to make into the mass of evidence.
First, the theory must be at least sufficient as a matter of law. There have been occasions, dreadful no doubt to their victims, where a motion for a directed verdict has been granted after a trial lawyer’s opening statement. Second, the theory itself should have moral or political appeal, in that it provides the judge with a moral reason to rule favorably. Third, the story should not contain internal contradictions: the defendant cannot claim to have been in his mother’s house in Chicago and in his brother’s house in Boston at the same time. Fifth, the story should, to the extent possible, follow the “rule of probability.” A theory is superior to others if it portrays persons acting in ways that are consistent with deeply held common sense beliefs about the way persons “generally and for the most part” act under similar circumstances. Because of the overwhelmingly circumstantial nature of proof at trial, even in cases where there is direct evidence, the trier of fact must inevitably rely on common sense generalizations when assessing testimony. There is often simply no reason to believe that events occurred in a way inconsistent with the way things go, despite the universal belief that surprising things happen all the time. To the extent possible, the lawyer will try to avoid theories, however factually accurate he believes them to be, that ask the judge to accept as true a generally improbable event or action.
Sixth, the theory of the case will also seek to portray the client acting in ways that exhibit good character and the opponent in ways that exhibit bad character. Most “triable” cases depend on witness credibility, and parties are most often witnesses. Parties who are shown to act in a trustworthy manner are most likely to be believed as witnesses. Seventh, the theory should also be supported by admissible, credible, and ethically presentable evidence. The rules of evidence may preclude the presentation of strong evidence that suggests one version of events rather than another. One theory, but not another, may rely on testimony given by the opposing party or a witness aligned with the opposing party, thus virtually eliminating issues of witness credibility. Eighth, the theory of the case must anticipate the opposing party’s positions and attempt to blunt the power of his or her theory and theme.
The “truth” presented by each party’s theory is always already a comparative truth: it has been “chosen” because of its normative superiority over the particular theory that the party anticipates his or her opponent’s presenting. Somewhat similarly, a theory should not “open the door to” (render relevant) evidence that weakens the moral appeal of the case or portrays the client as untrustworthy. These are two of the ways in which the basic narrative contains game-theoretical features—in both cases what appears to be a simple factual narrative of what occurred has actually been chosen, in part, to anticipate and neutralize the expected evidentiary and normative strengths of the opponent. Of course, each party is shooting at a moving target, in that his opponent is engaging in exactly the same enterprise, and, in fact, anticipating what he is likely to anticipate and move to counter, and so on into potential infinity. The lawyer’s attempt to construct a case in which the private goals of the client can be defended or advanced has effects both on the client’s goals and on the legal language and culture in which those goals are enmeshed.
The first step to a more adequate version of the opening statement is to understand that it presents to the judge what the evidence will show, not what the evidence will be. As such it is a complete “God’s-eye” narrative of the events that have led to the trial. The narrative is “omniscient” in that it includes, as episodes or facts, truths which could be reached only by inference from circumstantial evidence, most prominently, intentions, beliefs, and other states of mind. So long as these are stated as mere episodes in a narrative, and the reasons why the judge should conclude that these actually occurred are not marshaled in argumentative form, the lawyer will not be “arguing,” the most important legal restriction on opening statement. The opening has an “argument,” but it is like the argument of a novel, deriving from all the sources of plausibility that pure narratives can have.
In triable cases, the battle for the judge’s imagination that begins with opening statement is not simply an argument about “what happened.” It is a battle about the frameworks within which events should be understood—whether, for example, through the lens of traditional morality, on the one hand, or that of psychiatry, on the other. It is a battle about what kind of “social ordering” the situation demands: legalistic, moral, bureaucratic, political. At another level, the opening invokes social and cultural values embedded in authoritative “scripts” and invites the judge to finish the story.
For the opening statement is precisely the time in the trial when each lawyer presents, as a “vivid, continuous dream,” his or her narrative theory of the case. The story told in opening statement must achieve the optimum integration of the factors that serve as the criteria for the choice of the theory of the case. It will do this in a way that expresses or reveals the complex norm, inseparable from the details of the story he tells, and on which he relies. That norm, not otherwise expressible, is what gives the case life, allows it to “hang together,” to “ring true.”
Direct examination stands in stark contrast to that of opening statement. The contrasts are real and important. Direct examination does not provide the “pure data” from which reliable determinations of fact and unsullied judgments of law may be made. It does set a number of the extreme tensions within the trial that are the key to an understanding of its nature. It is the second of the “consciously structured hybrid of languages” that make the trial what it is.
First, the witness is required to testify in the language of perception, a requirement which can be enforced by objections that the witness is offering “conclusions” or “opinions.” This makes it relatively harder for the witness to supply a version of events so highly interpreted that it is impervious to reinterpretation in light of competing theories of the case. Requiring a witness to recount, to the extent possible, a precise version of his perceptions will produce an account whose meaning is open to honest debate. Memories about perceptions are less likely to be products of purposeful reconstruction than are opinions.
Not only must the witness testify in the language of perception, but he must also testify, in the main, in answer to nonleading questions. First, even a well-prepared witness has to choose, throughout the examination, what words to use in the description he gives. How he puts it tells the judge who he is to such an important extent that the formal evidentiary rules prohibiting “evidence of character” are almost trivial. Even testimony in the language of perception involves perceptual judgments and not merely the offering of sense-data. Certainly when the witness is allowed to offer an opinion, but also when he offers a perception (sometimes even without cross-examination), the judge can understand any gaps between how he wants to put it and how he is justified in putting it.
Direct examination has what might be called a standard structure, though it is subject to many variations. First, the witness is introduced, providing personal background—relatively more in the case of parties, relatively less on the part of others.
The direct examiner understands her theory, her theme, and the requirements of legal adequacy. Though the use of nonleading questions makes it difficult to exclude any detail the witness believes important, the examining lawyer can ask questions that suppress irrelevant detail and encourage the provision of detail which contributes to the case. Simplification allows each lawyer to present only that evidence which bears directly on the core issues in the case, and to present an enormous amount of evidence that does so bear in a relatively short period of time. This is one of the reasons, again, that almost all the authorities warn against multiple or alternative factual theories. The shaping and organizing process is difficult enough in relation to one theory. It is probably impossible and certainly confusing when directed by alternative theories.
The structure of the direct examination is also very important. It can serve to heighten the significance of the examination for the issues before the court, issues that are themselves chosen from a limited range of possible issues. The rules of “primacy and recency” counsel beginning and ending the narrative with a memorable and dramatic point. Apposition allows for sequential questioning on matters where a causal connection is suggested. Significant events can be repeated. It is possible to expand and contract the duration of the examination to suggest a slower or faster pace of events or observations in the real world. Questioning can follow a topical rather than a strictly chronological order.
By the use of topical organization, rather than purely chronological organization, a lawyer may question a harried emergency room physician only about the tasks she performed for a single patient, the plaintiff, so as to impart an impression of a careful and systematic attention to the plaintiff’s case. In general the lawyer here is not asking, “Did it happen this way?” She is asking, “Can the witness’s memories and convictions stand this interpretation within the ethical, evidentiary, and rhetorical context of the trial?”
There is nothing automatic about the translation from the real-world event to the presentation in the courtroom. Most certainly, it is not the case that the most unrehearsed or spontaneous presentation is for that reason the most true to the underlying event.
There is no neutral way in which language can simply mirror accurately an important real-world event. Any account will be given sequentially, and the “information” it contains will be doled out to the listener piece after piece. A human encounter that lasted a second may be enormously complex. A longer encounter may be simpler. We have no access to such an encounter except through description and narrative, the length and structure of which can in no simple, or pictorial, sense be “congruent” with the event it narrates. The medium cannot be the message. Our access to the human events on which trials focus is, as with all historical events, “mediated by meaning.” The task of the linguistic practices of the trial, its “consciously structured hybrid of languages,” working together, is to convey that meaning.
Direct examination, then, conveys the witness’s understanding of the meaning of a past event, embedded in the perceptual judgments he makes. The rhetorical practices of the lawyer serve mainly to allow the witness to convey that meaning effectively. Pretrial interviewing and witness preparation usually allow the witness to sharpen his understanding of the meaning of the event and structure his testimony to convey it. It must be the witness’s conviction that ultimately structures the testimony, or the testimony will collapse under cross-examination.
The methods of cross-examination stand in stark contrast to the heavily characterized, fully God’s-eye, narrative of opening statement and the apparently simple narrative of direct. It is the most prominent of the deconstructive devices of the trial. What opening and direct examination build up, cross-examination can destroy or profoundly reinterpret.
In any of its forms, the heart of cross-examination is the sequencing of short, clear, crafted statements that cannot plausibly be denied and which, in sequence, suggest an inference that supports, in one way or another, the cross-examiner’s theory or theme of the case. Cross-examination “questions” are statements. They do not seek information but rather serve to remind the judge of aspects of the truth of the situation that the witness has chosen not to reveal. Of course, this has significance for the judge’s assessment of the facts and also of the witness. Questions must be short because the assumption is that the witness disagrees globally with the examiner, wants to disagree. The questions are like watertight compartments on a ship: the examiner can lose one or two without total disaster’s engulfing him. Thus the attorney must keep each question limited to achieve damage control. Questions must be clear because the judge will and should hold ambiguity against the lawyer, and any ambiguity may fairly be exploited by a witness who, by the time cross comes around, is committed to a story now under attack. They must be as crafted as possible because they are designed to suggest a conclusion that the witness will resist. But the craft must not compromise the last feature of the cross examination question: that the witness simply not be able plausibly to deny the statement that each question contains. Finally, the entire purpose of the sequence of questions is to suggest to the judge a conclusion consistent with the examiner’s theory of the case.
The key to effective cross-examination is control. In contrast to direct examination, the lawyer is permitted in cross-examination to proceed in leading fashion. Control is central because of the purpose of cross-examination. Its premise is that the witness (or the examining lawyer) has made a more or less conscious decision to testify in a certain manner, that he has cut into the great booming, buzzing confusion of his own relevant experience and decided to testify in one certain way. He has decided which details to include and which to exclude. He has decided, within the limits on the form of examination described above, to describe a scene one way and not another, to tell a story one way and not another. He has told his story in such a way as to obscure the real significance of aspects of the story. He has failed to describe spatial and temporal relations in a full way. He has presented a story that has the appearance of completeness, that is “autopoetic”—it appears to fully represent the reality about which he seeks to testify. But it is not complete; or at any rate the purpose of cross-examination is to demonstrate that it is not.
After a successful direct, the deconstructive shock of an effective cross-examination can be stunning. While opening statement and direct examination are two different forms of constructed narrative, cross-examination is the first of the devices by which the trial deconstructs narratives. It is the succession of narrative construction and deconstruction, reconstruction and deconstruction, that lies at the heart of trial discourse. Deconstruction is the last word in the sequence because, I believe, it is rare that a judge will have accepted a complete narrative surrounding the events that have occurred. In a “triable case” there will often be large patches of uncertainty on past events. These patches are filled in by different sorts of (1) judgments of probability of purely historical events, (2) moral judgments, and (3) judgments of human and political significance. To anticipate, it is because judges are justified in saying they are unsure (by a degree of probability that is affected by the normative judgments concerning the importance of failing to find this rather than that, for this to go undetermined rather than that) that they can take a global moral approach to the case. In a well-tried case, there is often a large swath of this indeterminacy to be resolved, as we will see, through a practical-moral judgment, not a judgment of purely factual probability.
To the extent that judges feel justified in saying they just don’t know what the sequence of movements or the precise meaning of the events was, the judge may move into a sphere where the conscious relationship between factual and normative is undefined, where judgments of fact, of specific personal culpability, and of moral or general public significance relate to one another without full conscious control. Cross-examination can move a judge into this sphere by showing that a witness who has told a lucid, coherent, and complete story has made a series of choices based on more or less self-interested or casual assumptions. Even questions of fact are issues for choice, usually made in an interested way.
Cross-examination can shock a judge into understanding that there exists a series of (often unasked) questions the answers to which will transform the reliability and the meaning of a particular account. It can provide a judge with the experience of a radical reconceptualization of an account of what occurred, reminding them that, finally, they may rely only on their own assessment of what happened and how it should be judged. Ultimately, they must depend on their own insight and reflective judgment. Cross-examination may rely on alternative narrative construction. It may go over the same narrative terrain that the witness has traversed, but do so to exhibit the possibility of an alternative inference. This is relatively easy and can be extremely effective.
On cross-examination the choice of words is that of the lawyer, an incourt actor who has not taken an oath to tell the whole truth. More important, the lawyer’s framing of questions is not guided, as with an honest witness, by a recollection of events relatively independent of the rhetorical exigencies of the trial. In this regard, the witness’s language of direct embodies a weakness and a strength. The weakness is that it is not highly crafted with an eye to the issues in the case but is constrained by the memory of those “brutally elementary data” which, let us say, a novelist would omit. But this is also its strength, or may be if the witness demonstrates respect for “those things we cannot change at will,” so enhancing his credibility. Cross-examination has precisely the opposite strength and weaknesses.
It is obviously interested, something that a well-conducted redirect examination can show, and by conducting even the best cross-examinations, the lawyer shows herself a partisan. On the other hand, the cross-examiner has the novelist’s advantage of choosing the language of each “question” for full rhetorical effect, subject only to the requirement that the examiner’s statements not be subject to plausible deniability.
Sometimes the cross-examiner cannot retell through the witness on the stand the entire story from another perspective but will seek only certain limited admissions that are consistent with an alternative theory and which the witness consciously omitted. Somewhat relatedly, the examiner may multiply, often close to infinity, those things which the witness does not know or did not do. The suggestion, of course, is that the unknown fact, if known, ideally will (if there is other evidence of it) or at least could, radically change the understanding the witness has or the judge should have.
Second, cross-examination can more directly suggest facts or theories that provide explanations other than those suggested on direct examination. It may present to the trier of fact a series of additional facts that change the significance of the story the witness has told. It may show that the perceptual judgments made by the witness, what he saw the events as, are analyzable, in the best empiricist traditions, into more atomistic sense-data. Those could have been synthesized in some other way, an alternative perception. The examination may further suggest that this alternative perception was rejected, consciously or unconsciously, because of interests of one sort or another that the witness had in “seeing it his way.”
Third, the cross-examination may cast doubt on or qualify the opponent’s story. The examiner may ask himself the same question as would the attorney preparing for trial (“If this testimony is true, what else would be true?”) and then proceed to show that the consequences are false or implausible. Fourth, many of the most important cross-examinations are of witnesses who are also parties or important actors in the real-world events that have led to the trial. Here the most important goal of the cross-examiner can be to allow the judge to see, in apparent qualification of the general principle that the common law trial does not permit examination of a party’s character, the kind of person this is. Sometimes this involves simply gaining admissions from the witness about his or her own past actions and omissions in the real-world drama that led up to the trial, relevant perhaps only because they are “part of the story” that demonstrate one or another moral failure. Or parts of the direct examination can be reviewed in ways that show its inherent self-serving implausibility.
In what I call the “long cross-examination,” typically of a party opponent, the lawyer may simply require the opposing party to perform under circumstances where he is challenged with aspects of a situation he would prefer not to confront. How a person acts when he is not getting his way can be very revealing, especially when what is being challenged is the story he actually tells himself. Fifth, and somewhat more subtly, the witness can be asked questions the very answers to which reveal relevant dispositions. A witness can successfully navigate cross-examination if the factual and moral judgments he brings to the stand are sufficiently definite that they enable him to resist the impulse to say what appears advantageous under the shifting rhetorical grounds of cross-examination. This is very difficult for a witness who is a party or who believes in the justice of a party’s cause. Sixth, there is available to the cross-examiner an entire repertoire of methods of “impeachment,” the devices for undermining the credibility of the witness. These will attack his original perception, his memory of the event, his sincerity in swearing to tell the whole truth, the clarity of his mode of expression, and the ways, often subtle, in which these interact with each other. The examiner may draw admissions about the witness’s meager opportunity to observe because of lighting, brevity of time, confusion of the circumstances, his own fear, or significant distraction. His memory may be challenged by the examiner’s eliciting admissions about the length of time that has elapsed or the similarity of this incident to many others with which he may be confusing it.
The examiner may question the witness’s sincerity by eliciting admissions concerning his affection for a party or his reasons to despise the opposing party. His attitudes toward the racial or ethnic groups to which a party belongs may be exposed. Any prior statements or actions of his that are inconsistent with his trial testimony may be explored. Any errors in his trial testimony, even on inconsequential matters, may be revealed. The witness will be required to reveal any conviction involving false statements or dishonesty, such as perjudge.
Often the same persons are both witnesses and parties. Though a different set of rules applies to the impeachment of witnesses than applies to evidence probative of the alleged actions of parties, no judge is likely to distinguish sharply between the credibility of a party as witness and the deservingness of a witness as party. The exclusive moral rule of the relationship between the witness and the judge is one of truthfulness. A judge that believes it was mistreated by a party, prevented from doing its duty, will be inclined to think badly of that party. The judge knows, too, that a person’s attitude toward the simple factual truth, his accuracy or fairness, is not a bad indicator of that person’s fairness in general, his willingness to subject his own desires and projects to a standard beyond them, a trait that we generally call “decency.”
The structure of the trial itself elevates the importance of witness and party credibility. For as the trial progresses through plaintiff’s rebuttal case, and sometimes defendant’s surrebuttal, parties are limited in presenting evidence that attacks or qualifies. The trial itself easily becomes the moral event to which the judge responds. Of course, much more could be said about cross-examination. It is one of the most fascinating of the rhetorical arts. But it can fairly be said that its general purpose is to allow the judge to look through the narratives of the witness’s direct examination. It is a method to break the selectivity, the willfulness, the manipulativeness that inheres in self-interested storytelling, or perhaps in any story told by men or women. In conjunction with the other devices of the trial, it may serve to reach toward a truth that lies beyond storytelling.
Cross-examination can reveal other possibilities that, once identified, become, in light of all the evidence, more plausible than the one suggested. It may reveal not another factual possibility but a personal reality, in the way in which a witness who is also an important real-world actor performs an important public duty, the duty to tell the truth at trial, where the judge is relying on that truth in a matter of public significance. What a witness takes to be the “whole truth” of a situation says a great deal about who that witness is. When the judge imagines the events that have led up to the trial and casts in that real-world drama the particular people whom they have come to know as witnesses, the significance of the case may well be altered deeply.
The constitutive rules of the trial elevate the importance of a past event. But they cannot elevate the importance, the significance, of that event, which can be reached only through narrative, over the importance of the way witnesses actually tell their stories. For the trier of fact, the undeniable reality is the trial itself. The trial’s the thing. The fairness of the way in which witnesses testify is often the actual basis for the judgment.
In opening statement the lawyer provides a full narrative of the events that have brought the case to trial, a God’s-eye account. That account has the internal plausibility that comes from structural elements of the story, its consistency with factual and normative common sense generalizations, and it should invite the judge to finish the story so that the dimly perceived harmonies of the moral world are restored.
By the time closing argument begins, each lawyer cannot but be aware that the enabling simplicities of opening have largely disappeared. The “vivid and continuous dream” is only a memory, now more distant than the patchy and ambiguous presentation of events that has emerged in the evidentiary phase. The judge has now seen the case from innumerable perspectives, and the lawyer’s task is to coax the judge back into seeing it sufficiently from his perspective, into accepting his “theory and theme” just enough that they will be prepared to act in precisely the way that the advocate urges. The closing argument is the time when the lawyer will address directly the difficult relationships between theory and theme, on the one hand, and the evidence, on the other. In the most effective closings, he will directly and reasonably deal with the inevitable factual and moral difficulties that a triable case presents. He will be both reconstructing the narrative he provided in opening and deconstructing the narrative offered by his opponent. Occasionally he may present a compelling argument; much more often he will be more than pleased to have discovered an appealing argument.
And to anticipate the later chapters, in closing the lawyer is moving between the significance of events and their truth.
Most basically, the advocate will “argue the evidence.” Here he moves beyond the theory and theme struck in opening, to argument that the evidence presented in their support is believable. Here there is a rough hierarchy in the relative strength of supporting evidence: admissions are the strongest, the opponent’s failure to dispute evidence is next, followed by a strong basis in common sense and experience, with arguments about relative credibility of witnesses at the bottom. It is argument because of the employment of a range of devices that, in quite different ways, urge what we might most broadly call the relative strength of the advocate’s position, now on the axis of truth as well as the axis of significance. Thus the advocate may explicitly draw conclusions or inferences from the evidence presented that serve to demonstrate the truth of his theory of the case. He may carefully assemble a range of supporting detail that has been scattered intentionally throughout the case and whose significance may only have been hinted.
Because closing is the final engagement in the battle for the judge’s imagination. A theory is accepted or rejected as a whole, both sides will be careful to stay “within” their theories and themes. Even the plaintiff’s rebuttal argument will be organized according to the structure of his affirmative case. Even the defendant, after an initial denial of the plaintiff’s or prosecution’s claims, will almost always move quickly to reconceive the case from his own perspective. Part of closing argument will be devoted to a small number of crucial “turning points” in the case, those key issues which, once resolved, cause everything else to “fall into place.” Trial lawyers know that these issues are not purely factual. And so, especially in the rhetorically most important moments of closing, the beginning and the end, the advocate will focus on “making the judge want to decide the case in your favor.” He may invoke the judge instructions at this time or he may revert to narrative—retelling a portion of the full story he told in opening, perhaps at a higher pitch of descriptive-evaluative intensity.
Closing is argument as well because of the advocate’s ability explicitly to address and directly to criticize the opponent’s inferences, analogies, theory, and theme. In this mode, closing argument is, like much of cross-examination, a deconstructive device, in two different ways. First, it can attack the internal coherence, both factual and normative, of the opponent’s case, arguing usually that both the factual generalizations and the normative principles on which it is built are crudely overgeneralized and misstated. Second, it can attack the relationship between those generalizations and principles, themselves unassailable, and the evidence that this case falls within them. (Here the advocate may directly urge the lack of credibility of the opponents’ witnesses, their motive to lie, and their untrustworthy demeanor while testifying.) Here the advocate can say of his opponent’s opening, in effect, “Pretty story, but it just isn’t true!” That opening was the lawyer’s promise to produce evidence to establish the important assertions she made. The trial shows that the promise has been broken!
It is worth anticipating here the complex ways in which the few rules surrounding closing situate the trial in a web of public meanings. It is the lawyer, not the client, who addresses the judge. He is prohibited from directly expressing his personal opinion on the justness of the cause or the credibility of the witnesses. He must accept the law as given in the instructions and may not paraphrase that law, misstate it, or urge the judge to disregard it. The analogies, allusions, and stories he tells in order to make both factual and normative arguments are all drawn from the judge’s common sense. The advocate is prohibited from addressing a judge by name or from urging the judge’s self-interest or lessening the responsibility the judge bears by mentioning the possibility of appeals or of commuted sentences. Closing dramatizes the transformation of private desire into public right. When “I want” becomes “I am entitled to,” the claimant must submit to the complex public norms by which the latter claims are determined.
Just as in opening, the advocates in closing almost inevitably and performatively pose for the judge metalevel issues concerning what is important about the lawsuit. The trial is constituted as a “consciously structured hybrid of languages,” each quite different from the others. Together they build up an enormous, almost unbearable, set of tensions of different kinds. Both lawyers – the Plaintiff’s and the Defendant’s must locate the most powerful norms, from any source, that support the client’s case, and demonstrate how those norms are what this case is about. The trial is the crucible in which what is most important about norms and facts is determined.
The law of evidence contains the most obvious set of rules that make the contemporary trial what it is. More easily overlooked, especially by scholars whose principal interest is the extent to which the law of evidence promotes or hinders accuracy in fact-finding, is the pervasive effect of the law of professional responsibility on the trial. Just as surely as the law of evidence, legal ethics, both as a set of precise disciplinary rules and as an expression of the ethos of the practicing bar, forms a decisive part of the constitutive rules of the trial. Someone who is interested in answering the question “What is a trial?” cannot leave them out of account.
First, except for the special case of the prosecution in criminal cases, the client decides whether or not to proceed to trial. After all, a “divorce lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.” (The office of the prosecutor has unreviewable discretion not to file or to decline to prosecute a criminal case. A settlement in the form of a plea bargain must be approved by the judge.) This decision is a corollary to the lawyer’s duty to “abide by a client’s decisions concerning the objectives of representation” and to “consult with the client as to the means by which they are to be pursued.”
But the client’s right to set the objectives of the representation reaches decisively into the trial itself. Concretely, those objectives will often determine the opening statement that the lawyer gives, where the crucial “theory of the case” is presented. For example, a mentally competent criminal defendant charged with first degree murder may decide that his primary objective is to avoid indefinite detention in a state mental hospital. He may well decide, after consultation with his lawyer, that the goal of the trial is to obtain a conviction for involuntary manslaughter and a relatively short prison sentence, most of which he may already have served awaiting trial. What his lawyer says “is the case” in opening statement will be a function of that client goal, as will all the evidence presented, the way it is organized and shaped.
It is the client who chooses. The lawyer’s task is to protect the client’s autonomy from the threat posed by the complexity and alien nature of the legal system. If the choice is to litigate, to go to trial, the lawyer becomes less the philosopher and more the fighter, or at least the very single-mindedly loyal diplomat. He or she puts partisanship, fellowship, competitiveness, and ambition at the service of presenting the most morally and factually compelling version of a client’s story. Or perhaps as one may say “position,” because the narrative will be the result of a set of conversations in which the story that the client claims to be true is confronted by the lawyer’s judgment about what is factually plausible and morally compelling. The result of this effort is the presentation of a case imagined and researched with the care that only the most delicate conscience and rigorous intelligence could muster. Thus a trial advocate may and often must make the most impolite or embarrassing suggestions, even if they are offensive to the powerful. By the law of professional responsibility, the client’s interests supersede every code of silence.
But there are limits. Those limits contribute to the powerful tensions that pervade the trial.
They respect “those things that man cannot change at will,” and ensure that the trial is not only a political event. A lawyer may not herself make a false statement of material fact or law in the trial court. Nor may a lawyer offer evidence that he knows to be false. If a lawyer has offered evidence that he learns to be false while the action is still pending, he has a duty to “take reasonable remedial measures.” The most dramatic example occurs when the lawyer’s own client has testified falsely and refuses to correct the false testimony. In the civil context, and probably in the criminal as well, that includes “disclosing the existence of the deception to the court or to the other party,” even where the source of the lawyer’s information is a confidential communication with the client. There are difficulties surrounding “what a lawyer knows,” but the authorities address that problem with a common sense that tries to avoid sophistry, on the one hand, and a too-cavalier readiness to find a client, especially one charged with a criminal offense, to have committed perjury, on the other. Nor may a lawyer “counsel or assist” a witness, including a client, to testify falsely. Once the lawyer knows that potential testimony, however helpful, is false, he may not offer the testimony or prepare the witness to present it effectively. Even if he only “reasonably believes” the evidence is false, he may choose not to offer it. A client or a witness may have consciously or half-consciously manufactured a distorted story based on a misunderstanding of the legal standards. For this reason, or in order to motivate a client to remember important details, a lawyer may be justified in explaining the legal issues. Furthermore, the processes by which a lawyer can reconstruct events from a limited memory bear a close resemblance to those by which he can construct events—both involve the use of imagination and common sense to determine the probable course of events. When reconstructing events, the lawyer bothers to inquire seriously whether that is actually the way things happened; when constructing events he is concerned only whether the story is plausible and not obviously inconsistent with other credible evidence.
If you have a question about divorce law or if you need to start or defend against a divorce case in Woods Cross Utah call Ascent Law LLC (801) 676-5506. We want to help you.
Shoplifting is intentionally taking merchandise from a store or retail shop without permission and without paying for the items. The person must intend to permanently depriving the business of its merchandise. Many items can be targeted for shoplifting, some more than others; some items that are commonly shoplifted may include:
• Baby items;
• Electronic devices, especially smart phones and laptops;
• Food items, especially meats;
• Alcoholic beverages;
• Cosmetics; and/or
Generally speaking, many shoplifters target small, more expensive items that can easily fit in a pocket or a purse. Some shoplifting efforts may involve more than one actor, with one person acting as a distraction while the other conducts the shoplifting. A person can be charged with either misdemeanor or felony shoplifting. Whether a shoplifting charge is a form of felony theft depends on state law. A shoplifting charge may be listed under petty theft or another type of larceny.
States typically decide if shoplifting is a felony according to merchandise value. In order to be classified as felony shoplifting, the stolen property must often exceed a minimum price. The specific value depends on state law. Generally, a felony shoplifting charge involves monetary amounts ranging from $500 to $1,000. Thus, an individual who is charged with taking $100 of merchandise will likely be charged with misdemeanor shoplifting. Another person charged with take $501 worth of merchandise will likely be charged with felony shoplifting. Shoplifting certain items can result in felony shoplifting charges, regardless of the value of the property that was stolen. This is referred to as a categorical felony. The value of the merchandise that was taken does not matter when it includes:
• Firearms; and/or
• Incendiary devices.
Thus, if a person shoplifts even a relatively inexpensive firearm, they may be charged with felony shoplifting. The penalties can be even more severe if the person has prior felonies on their record (some persons who are convicted of a felon may not be allowed to possess a firearm). Also, in some states, the types of items taken and value of the stolen property do no matter if a person has a prior criminal history. For example, some states increase a shoplifting charge to a felony if the person has been convicted of two or more theft offenses. Also, stealing any explosive or devices that can be used to create explosives can become a federal issue. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) monitors any sales, transportation, possession, and any stolen goods that can be used for bomb making. This can include obvious things like plastic explosives to less obvious, like ammonium nitrate which is often used in fertilizer (as well as in bomb making). Stealing any of the items monitored by the ATF can turn a simple issue of shoplifting into a question of terrorism.
Misdemeanor charges are usually less serious than felony charges. The main difference between the two lies mostly in the way that they are punished. Misdemeanor charges often involve a sentence of up to one year maximum in a jail facility. They may also involve criminal fines as well (usually up to $500 maximum). The amount of the fine typically depends on the amount of property that was stolen.
In comparison, felony charges are typically punishable by sentences of longer than one year in a prison facility (not a county jail facility). They may also involve criminal fines as well, which will be higher than those for criminal misdemeanor charges. For a felony shoplifting charge, the criminal consequences can typically involve several years in prison, as well as thousands of dollars in criminal fines. Some crimes may be classified as wobblers. This means that they can either be considered as a misdemeanor charge or a felony charge, depending on the circumstances of the case as well as the judge’s discretion. Some states also have degrees of shoplifting felonies, which indicate levels of seriousness of the crime. Felony degrees may range from one to five, with fifth-degree felony being the most serious. In fact, approximately 90% of the population has shoplifted in their lifetime.
These days, it’s a lot easier to get caught than it was 20 years ago. With the installation of cameras all throughout retail stores. It’s pretty difficult to get away with it. Statistically, adolescents are the biggest shoplifters, accounting for nearly 50% of all shoplifters. However, they only steal one-third as much as their adult counterparts. Adults are more creative and ingenious when it comes to shoplifting. Thieves have been commonly known to hide merchandise inside coats or bulky clothing. Women have gone so far as to feign a pregnancy so they could hide merchandise inside maternity clothing. People commonly hide stolen goods inside purses, backpacks and other shopping bags. In fact, people have been known to hollow out books and stuff merchandise into a fake cast. Although some shoplifters are career criminals, others steal out of desperation. Many of them steal necessary items such as food or items for their children. They are put in a situation where they have to decide between going without a necessity and taking a risk.
These risks can have grave criminal consequences when the people are eventually caught in the act. How a person is charged in a shoplifting offense depends upon the value of the items stolen. If the value of the goods was less than $400, it will be charged as misdemeanor petty theft, which is punishable by up to six months in jail and fines ranging from $50 to $1000. Where the value of the property stolen was worth more than $400 the person will be charged with grand theft, which can be charged as either a misdemeanor or a felony. The decision will be ultimately left up to the prosecution as how to charge you. This is normally dependent upon any past convictions on your criminal record. The penalty for grand theft can be up to one full year in jail or state prison; a large price to pay, especially if you had a momentary lapse in judgment. The best scenario is to be charged with an infraction. An infraction is less serious than a misdemeanor and the penalty for infraction petty theft is less than $250. Infraction petty theft is applied to theft cases involving merchandise valued below $50. If you were arrested for shoplifting, your best defense is to hire a criminal defense attorney as soon as possible. The last thing you want is to have to spend a number of months in jail over a mistake. Any type of conviction will result in a permanent criminal record which will haunt you for the rest of your life. Getting caught shoplifting is not only an embarrassing experience, it can have significant consequences. The laws of many states issue hefty fines and even jail time for certain shoplifting offenses, and Texas law is no exception.
In Utah, shoplifting offenses fall under the general definition of “theft” in the Texas Penal Code. In addition, shielding or deactivating instruments used for shoplifting are also expressly prohibited under state law. The nature of a shoplifting charge and the associated penalty will depend on a couple of factors, including the value of the property stolen, and whether you have previously been convicted of any type of theft.
The definition of “theft” under the Utah Crimianl Code includes a variety of offenses, including shoplifting.
Theft is defined as the unlawful appropriation of property with the intent to deprive the owner of the property. It’s also a crime to possess, manufacture, or distribute shielding or deactivating instruments used for shoplifting.
• Shoplifting property valued at less than 100 is a Class C misdemeanor.
• Shoplifting property valued at $100 or more but less than $750 is a Class B misdemeanor.
• If you have been previously convicted of any grade of theft, shoplifting will be a Class B misdemeanor if the value of the property stolen is less than $100.
• Shoplifting property valued at $750 or more but less than $2,500 is a Class A misdemeanor.
• Possession, manufacture, or distribution of a shielding or deactivating instrument is a Class A misdemeanor.
• Shoplifting property valued at $2,500 or more but less than $30,000 is a state jail felony.
• You will also be charged with a state jail felony if you have two or more prior convictions for theft, and the value of the property stolen is less than $2,500.
• Shoplifting property valued at $30,000 or more but less than $150,000 is a felony in the third degree.
• Shoplifting property valued at $150,000 or more but less than $300,000 is a felony in the second degree.
• Shoplifting property valued at more than $300,000 is a felony in the first degree.
• Class C misdemeanor – fine of up to $500.
• Class B misdemeanor – fine of up to $2,000 and up to 180 days in jail.
• Class A misdemeanor – fine of up to $4,000 and up to one year in jail.
• State jail felony – fine of up to $10,000 and between 180 days and two years in jail.
• Third degree felony – fine of up to $10,000 and between 2 and 10 years’ imprisonment.
• Second degree felony – fine of up to $10,000 and between 2 and 20 years’ imprisonment.
• First degree felony – fine of up to $10,000 and between 5 and 99 years’ imprisonment.
State regulations are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching. A shoplifting charge may seem like a mere annoyance, but in the state of Texas it can have significant repercussions. If you have been arrested for shoplifting, it’s important for you to understand your legal rights.
Adult shoplifters can be sued by the merchants they victimized for actual damages, plus additional damages up to $1,000. Parents or guardians who have a duty of control and discipline over a child shoplifter can be sued for actual damages up to $5,000.
Some counties provide pretrial diversion programs, which allow certain individuals accused of first-time and low-level crimes to avoid criminal prosecution. Diversion programs typically require completion of a probationary period and other court-mandated requirements, such as restitution, community service, and counseling. Upon successful completion of the requirements, the criminal charges will be dropped. If diversion programs are not available, the accused may be able to arrange a plea bargain with the prosecutor assigned to the case. The prosecutor may be willing to reduce the charges or the sentence, in exchange for a plea of guilty.
There are a few ways to possibly have your shoplifting charges dropped. When you are arrested, the prosecutor may file criminal charges if they believe they have enough evidence to support a conviction. If during a preliminary hearing a judge decides there is sufficient evidence to support a conviction, the case will be allowed to proceed. It is important not to confuse dropped charges with dismissed charges. Your charges can be dropped before they are filed or after they are filed. However, your charges can only be dismissed after they are filed. If your case is allowed to proceed, the offense may be dropped if the victim asks the prosecutor to drop the charges. The lack of cooperation by a victim may mean that the prosecution does not have enough evidence to convict you of shoplifting. However, even if a retail store did request that the prosecutor drop the case, the discretion to drop the case lies with the prosecutor. Additionally, under certain circumstances, the arresting officer may have the discretion to drop the charges.
There are several reasons why a shoplifting charge may be dropped:
• The evidence needed to build the case is flimsy
• Eyewitness accounts conflict with the evidence
• Necessary evidence was illegally secured without a warrant
• Your constitutional rights were violated (e.g., the police coerced you into a confession after you asked for an attorney)
This is not an exclusive list, and there are other variables that a prosecutor may consider before dropping charges. A plea bargain is another way that your offense may be dropped or reduced. A plea bargain is when an offender and a prosecutor agree to reduce or drop charges in exchange for the offender pleading guilty to a certain offense. Typically, the defendant will plead guilty to a lesser crime than the one they committed. For example, pleading guilty to misdemeanor theft instead of felony theft may be an option in severe cases.
Work with a Utah Criminal Defense Attorney to Negotiate Dropping Your
If you or a family member was arrested for shoplifting, you should contact an experienced criminal defense attorney.
Here are the top things you should do if you find yourself facing a charge of retail theft:
• Do not flee store security: Most times, the police are not involved in an initial arrest for shoplifting. Instead, the defendant is likely to first be confronted by unarmed private security officers. If one is guilty of shoplifting and is confronted by store security, there is a strong temptation to resist or to flee. This is a mistake. Firstly, if the detention is illegal, you have the right to challenge it in court. However, if you resist or run from the private security officers, this is strong evidence of guilt. Also, this sort of dangerous uncooperativeness makes an informal resolution of the case much more unlikely.
• Do not make custodial statements to police: Once you are turned over to police, you will feel compelled to offer an innocent explanation for this big mistake. In almost every case, what the defendant thinks is an innocent explanation will turn out to be an admission of guilt. As set forth above, retail theft is committed in a number of ways. Thus, do not talk your way into a conviction. If the police attempt to question you, simply invoke your right to counsel. Once you do so, the law requires that all police questioning cease.
• Hire an experienced criminal defense lawyer: As should be clear from the penalty structure set forth above, a charge of retail theft can be a serious criminal offense. You should be represented by counsel, and it should not be your general practice family lawyer. Given the potential consequences, you need to be represented by a criminal defense lawyer who is familiar with pretrial motions challenging the legality of the dention and other matters.
• Make restitution: Many times if a person is arrested for shoplifting, this means that he or she did not get away with the merchandise. Under those circumstances, there may not be any restitution due; however, if the police tell you that the merchant is seeking restitution, you should make restitution immediately.
• Make sure that you appear in court: Obviously, if the charge is criminal in nature, you must appear in court because if you fail to do so the judge will issue a warrant for your arrest. If you decide to plead guilty, make sure that your lawyer requests that the judge consider expunction if you successfully complete your sentence. If the charge is a municipal ordinance violation, you are not required to appear in court, but if you fail to do so, the judge will find you guilty by default. This, too, is a mistake. Many times, especially in municipal court, the prosecutor will offer the defendant deferred prosecution agreements which may allow you to avoid a conviction altogether.
When you need to defend against a shoplifting charge in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
Each year many Americans end up having to seriously for bankruptcy for no fault of their own. They have no idea about the bankruptcy court procedure and the forms to be filed. All that they know is they need to go to court and the court will do something to help them. That’s not how it is. The court will only help if you follow the process and submit the correct forms. The court will not magically make your debts disappear. If you are facing bankruptcy or you are overburdened with debt and you don’t know what to do, speak to an experienced North Salt Lake Utah bankruptcy lawyer. Time is very important. The earlier you speak the better it is for you. With each passing day, the debts will mount. The creditors and debt collectors will keep calling you. Once you file for bankruptcy these calls will stop. If your creditor or debt collector calls you after they know you have filed for bankruptcy, they are violating the law. An experienced North Salt Lake Utah bankruptcy lawyer will ensure that once you file for bankruptcy, your creditors and debt collectors won’t call you. If they continue to call you, you can take action against them with the help of your Experienced North Salt Lake Utah bankruptcy lawyer.
You may come across many “experts” who will advise you that there are viable alternatives to bankruptcy. These alternatives may work in some cases. Generally, these alternatives require you to make a huge payment upfront. Also, the alternatives need the consent of the creditors. The creditors are legally not required to agree to the alternative. Each creditor has to be dealt with on an individual basis. Your creditor may not agree to the alternative. In a bankruptcy your creditors do not have much say in how the debts will be paid. It’s the bankruptcy court that will determine the payments. In effect when you go to a creditor to renegotiate or use any other alternative to bankruptcy, the ball is essentially in the creditor’s court. Whereas in case of bankruptcy, the creditors can’t do much. Also, they cannot contact you for the debt once you have filed for bankruptcy. They can’t take any action to recover the debt because of the stay. If a creditor violates the stay, you can take action against the creditor.
How long your bankruptcy proceedings will take will depend on your bankruptcy chapter. As an individual debtor, you can file under chapter 7 or chapter 13. Chapter 7 is also called liquidation. As the name suggests, it is essentially a liquidation process. Once you file a chapter 7 bankruptcy, a bankruptcy trustee appointed by the bankruptcy court will take over all your non-exempt assets and the assets will be sold to pay off your creditors. Some of your assets are exempt assets and the trustee will not touch them. Before you file a Chapter 7 bankruptcy consult with an experienced North Salt Lake Utah bankruptcy lawyer to know if you can file a Chapter 7 bankruptcy.
Individuals also file for bankruptcy protection under Chapter 13. A chapter 13 bankruptcy is referred to as a reorganization. It essentially means that you reorganize your debts and pay off your creditors over a period of time. You have to submit a plan to the bankruptcy court explain how you intend to pay off your creditors. Once the plan is approved, you start making the payments. Sometimes you may be better of filing under Chapter 7 than under Chapter 13. An experienced North Salt Lake Utah bankruptcy lawyer can help you determine the right chapter for your bankruptcy filing. Filing under the wrong chapter can prove costly. Don’t take chances. Seek the advice of an experienced North Salt Lake Utah bankruptcy lawyer. When you are filing for bankruptcy, you will be stressed out and may not be in a position to take sound decisions. However, the decisions you take at this stage can play an important role in the outcome of your bankruptcy petition. Let an experienced North Salt Lake Utah bankruptcy lawyer assist you with the important decisions at this stage. You will not regret it.
If you have a few big assets like a home that you are seeking to protect, you should consider filing under Chapter 7. However, speak to an experienced North Salt Lake Utah bankruptcy lawyer. Getting the paperwork done in time is very important. Because you have defaulted on the payments, your creditors may have sold the account to debt collectors. You will have to list the debts that you owe and to whom. This information must be given to the bankruptcy court at the time of filing of your bankruptcy petition. Do not leave out any debts. A debt that you have left out will not be discharged and you will continue to remain liable for that debt. Your experienced North Salt Lake Utah bankruptcy lawyer can help you trace your debts and link them to your creditors.
Once you file a Chapter 7 bankruptcy proceeding in Utah, the bankruptcy court will review your papers to ensure that everything is in order. However, from the moment your petition is submitted to the court, your bankruptcy protection starts. Your creditors can no longer contact you. Your experienced North Salt Lake Utah bankruptcy lawyer will send notices to your creditors that you have filed a Chapter 7 bankruptcy. Should any creditor call you after you have filed a Chapter 7 bankruptcy in Utah, refer the creditor to you lawyer who will deal with the creditor.
If you have a lot of assets and you have a steady source of income, you should consider a Chapter 13 bankruptcy. Speak to experienced North Salt Lake Utah bankruptcy lawyer to know if a Chapter 13 bankruptcy is an option for you. In a Chapter 7 bankruptcy, the bankruptcy trustee takes over your assets and sells them to pay off your debts. Unlike a Chapter 7 bankruptcy, in a Chapter 13 bankruptcy, the debts are paid off over a period of time and you continue to retain your assets. The most important part of a Chapter 13 bankruptcy is the repayment plan. Your experienced North Salt Lake Utah bankruptcy lawyer will assist you prepare a repayment plan that you can afford. The plan essentially lays down how you will pay off your debts over a period of time.
If you are a Utah resident and you want to file for bankruptcy, speak to experienced North Salt Lake Utah bankruptcy lawyer today. Bankruptcy can help you get rid of serious credit problems. Bankruptcy is essentially a Federal law. By law, before you file for bankruptcy you must undergo credit counselling. This counselling must be done within 180 days from the date on which you have filed for bankruptcy. If its done before that, you will have to get it done again. Not all credit counselling programs qualify for this purpose. The credit counselling must be done by an organization that is approved by the Bankruptcy Trustee. The objective of this counselling is to help the debtor create a budget, manage money and use credit wisely.
Speak to experienced North Salt Lake Utah bankruptcy lawyer to know more about the Means Test. Once you have completed the credit counselling, you must pass the Means Test if you want to file a Chapter 7 bankruptcy in Utah. If you do not qualify for a Chapter 7 bankruptcy in Utah, you can file under Chapter 13. If the Means Test determines that you have enough money to pay off at least a portion of your debts, you will not qualify for Chapter 7. The idea is to ensure that Chapter 7 is used by debtors who cannot pay off any of their debts. If your household income is below the median Utah family income, you may qualify for filing under Chapter 7. If you do not qualify for filing a Chapter 7 bankruptcy in Utah, don’t worry. Consult an experienced North Salt Lake Utah bankruptcy lawyer. You can still file for bankruptcy protection under Chapter 13.
In a Chapter 13 bankruptcy, the debtor submits a repayment plan to the court. If the court approves the plan, the debtor pays off the debts over a period of time under the supervision of the court. Under the time the repayment plan is in operation, your financial activities will be closely monitored by the bankruptcy trustee. If you want to buy a new car or spend on a luxury item during the operation of the repayment plan, speak to experienced North Salt Lake Utah bankruptcy lawyer. Such spending can incur the wrath of the bankruptcy court. However, your experienced North Salt Lake Utah bankruptcy lawyer may be able to get you permission from the court to buy a new car. If during the operation of the repayment plan, there is a substantial increase in your income, you may be required to divert the increase towards the payments under the plan. In a way, it will help you complete the payments faster and get a discharge sooner.
The creditor meeting is the time you will come face to face with your creditors after you have filed for bankruptcy in Utah. Never attend these meetings alone. Always have an experienced North Salt Lake Utah bankruptcy lawyer accompany you to the creditor meetings. It can be an emotionally charged moment for you – coming face to face with your creditors, including some who have been calling you every day asking for payment. Many of them may object to your bankruptcy filing saying that you have the means to pay off your debts. Do not speak anything during the hearing unless you are asked to do so by the trustee. If the trustee asks you any questions, let your experienced North Salt Lake Utah bankruptcy lawyer answer them. If you want to answer them yourself, talk to your attorney before answering them. This creditor meeting will be the only time you will have to attend the bankruptcy court. Don’t let this one court attendance spoil your chances of a successful bankruptcy. Hire the services of experienced North Salt Lake Utah bankruptcy lawyer.
Once all your debts are paid off, you will get discharge. You will no longer be liable for these debts. In a Chapter 7 bankruptcy case in Utah, a debt is discharged the moment the bankruptcy trustee pays off the creditor from the sale proceeds of your assets. In a Chapter 13, the debt is discharged after it is paid as per the repayment plan submitted by you and approved by the bankruptcy court. Not all debts can be discharged by bankruptcy. Certain debts will survive bankruptcy. An experienced North Salt Lake Utah bankruptcy lawyer will review your circumstances and explain to you which of your debts can be discharged and which of your debts will survive bankruptcy. Generally, you cannot discharge certain court ordered payments like child support. Student loans also survive bankruptcy. However, you may be able to get some benefits in bankruptcy with regard to your student loan debt. If you owe money to the IRS, chances are those debts will survive bankruptcy and you will have to deal with the IRS to settle those debts if you cannot pay them off in full.
Bankruptcy is a serious event. Don’t take it lightly. There are many websites and books that offer directions on how to file for bankruptcy without an experienced North Salt Lake Utah bankruptcy lawyer. Don’t fall for the bait. Trying to navigate the complex maze of bankruptcy law can be like finding a needle in a haystack. Always hire the experienced North Salt Lake Utah bankruptcy lawyer. The lawyer is a professional and knows the bankruptcy law. Should your bankruptcy proceeding hit a roadblock, the lawyer will ensure that you can overcome that roadblock. What you need to keep in mind is that an experienced North Salt Lake Utah bankruptcy lawyer is your best friend when it comes to bankruptcy protection. The lawyer will not just file your bankruptcy petition in the bankruptcy court. He will stand by you all the way. Even after you get a discharge, an experienced North Salt Lake Utah bankruptcy lawyer will be there to advise you on how you can rebuilt your credit after bankruptcy.
When you need legal help for a bankruptcy in North Salt Lake Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with: Chapter 7 Bankruptcy. Chapter 12 Bankruptcy. Chapter 11 Bankruptcy. Chapter 9 Bankruptcy. Chapter 13 Bankruptcy. Adversary Proceedings. Discharge Problems. Obtaining Relief From the Automatic Stay. And Much More. We want to help you.
We hear on the news day after day that people are getting into accidents while under the influence of alcohol. How can we as a society prevent alcohol-related accidents among people who are dependent on alcohol? Is there a sociological approach?
Alcohol dependency is a problem that affects all of us. Therefore, we all have to do what we can to limit its negative impacts on society, whether taking a friend or family member to alcohol rehab centers or volunteering on a regular basis as a designated driver. The addiction to alcohol is chronic and progressive in nature, (Alcohol Research and Health). This disorder is a disease like any other medical conditions that needs medical interventions or treatments. Punishing offenders of alcohol induced infractions is only a part of the solution. For one thing, people who get into car accidents as a result of alcohol use will still continue to drink if they don’t get proper treatment for their alcohol dependency problem. To make matters worse, many alcoholics don’t believe that they have an alcohol problem until it is too late, either they lose their jobs or they get into a severe motor vehicle accident as a result of their alcohol dependency.
We as a society cannot afford to wait until alcoholics figure out their problems. We have to be proactive by creating a plan that will help save the lives of both alcoholics and our citizens from alcohol-related incidence.
Our society should put in place a system that regulates the amount of alcoholic beverages an individual can consume at a bar in a given day. No one person should be given the opportunity to consume more alcohol than is legally allowed, in regards to blood-alcohol levels. Our society is making it too easy for people to get into trouble by drinking too much. If one beer is enough to prevent people from going over the legal drinking limit, then one beer should be the norm for anyone who enters a bar and orders beer. Our current stance is that people should be held accountable for their actions and therefore should take responsibility for such actions. The sad truth is that such strategy is not working because if it was we wouldn’t be hearing about so money alcohol-related motor vehicle accidents.
Alcoholism or alcohol dependency is a disease that needs to be dealt with as such. Many research studies have been conducted using primates, such as monkeys to understand the mechanism of alcohol dependency; such animals are used in these studies because they have similar genetic predispositions as humans, (Alcohol Research and Health). A substantial amount of research has examined the neurobiological basis for alcohol abuse, which includes neurobiological adaptations. Neurobiological adaptations is believed to be the mediator of addictive behaviors associated with alcoholism.
Alcohol dependency is therefore a medical condition with a neurobiological basis. Society cannot depend on an alcohol-susceptible person to make wise decisions when it comes to the consumption of alcohol and getting behind the wheel of a car. There has to be a regulatory mechanism in place, which will prevent an alcohol susceptible person from drinking too much while outside the home.
It does not make much sense to always allowing people the opportunity to drink as much as they want knowing that such actions will put people at increased risk for getting behind the wheel while under the influence of alcohol. A preventive strategy should be put into place. It is always easier to prevent the problem than to cure it. One should realize that it is much more difficult for a person under the influence to make wise decisions. We should not leave it up to the drunken person to make the decision as to whether to get behind the wheel or not. We should instead create an environment where people will have the opportunity to make such decision with a clear head.
Our society allows people to drink as much alcohol as they want at bars with no restrictions. Most of the time people drink because they refuse to face stressful situations in their lives. So, they go to the bar and drink beer after beer to get drunk, so they can temporarily rid themselves of their worries at home. We as a society should help these people by not making it so easy for them to drink as much as they want, especially at a bar. Granted, it is next to impossible to control how much a person drinks at home. However, it is very possible to control how much a person is allowed to drink at a bar. It is much better for society when a person drinks at home because that person is not compelled to get behind the wheel of a car and drive home, as that person is compelled to do while at a bar. People have no choice but to get behind the wheel of a car and drive home when at a bar, especially if that person’s judgment is impaired as a result of excessive amounts of alcohol intake.
We should not totally ban alcohol. Such actions did not work in the roaring twenties when alcohol was totally prohibited. Doing so would not work today. There were many illegal smuggling of alcohol going on in those days as a result of prohibition. The ban of alcohol in the 1920s gave rise to another problem-drugs. So, totally eradicating alcohol is not the answer, but regulating it could be a very good option in limiting the amounts of alcohol-related accidents on our streets.
Drink and drive accidents are common in every state. But, intoxicated drivers are also punished severely for causing drunk driving accidents. In some cases, the state establishes that the driver lost control over the steering wheel because he was under the effect of alcohol or drugs or the driver contravened the per se law, that is, the driver’s BAC or blood alcohol content was above the legal limit. Drink and drive problems are taking a heinous shape nationwide. But, stringent laws are also being implemented in to reduce drunk driving accidents.
In certain states, DUI arrests give the officer the right to ask the intoxicated person to undergo an alcohol evaluation test, urine test or breath test to find out if the person was actually drunk while driving. The intoxicated person accused in drinking and driving issue has no right to decide on any particular test or discuss issues with the attorney on submission of test samples. If you are prosecuted of any drunk driving accidents you will be left with no other alternative but to undergo any test as ordered by the officer of the law.
Voluntary license revocation of the intoxicated driver has been made mandatory in certain states in countries like the United States. Sometimes, along with license revocation the accused is sentenced to jail for a considerable period of time. For drink and drive issues, the cops can actually revoke you’re driving license and even arrest you. When your license is revoked you are given a receipt. Remember, you can apply for a temporary license because you are not forbidden to drive when a cop takes away your license. However, your temporary driving license is rendered null and void once a suspension order comes from DWI courts, sobriety courts and accountability courts, which have been established to punish offenders.
If you are arrested for causing drink and drive accidents in a state like Indiana you have to face severe consequences because in Indiana there are 3 recidivist offender consequences for DWI accused.
Habitual Substance Offender Statue this can cause jailing of the accused for a period of more than 8 years.
Felony DWI involves infringements within five years of the present charge.
Habitual Traffic Violator status is given on DUI miscreants who are accused of three DUI’s in a time span of 10 years.
Contact a lawyer if you are arrested for causing drink and drive accidents. Your lawyer will find out if post-conviction relief can be of any help to you.
If you are arrested for rash driving in a state like Utah and your alcohol evaluation tests prove that you are above the legal limit, contact a lawyer adept in handling DUI cases immediately. It is also imperative to know if the person is familiar with drink and drive rules and has handled cases on drink and drive accidents in Utah previously. Remember, each state has different rules for penalizing drivers accused in drinking and driving cases.
You also need to consider your DWI insurance claims if you are caught for drunk driving. If the insurance company comes to know that you have been accused for rash driving, you will have to pay a higher premium for being marked as a reckless driver.
Always remember the best way to avoid being getting tangled in drink and drive problems is to avoid driving when you are under the effect of alcohol in the first place.
Several penalties exist as a punishment for defendants arrested for DUI or driving under the influence of alcohol or drugs. These penalties include:
– Mandatory jail time
– Community service hours
– Suspension of license and;
– Loss of driving privilege
If the defendant is found guilty as charged, he or she will be asked to pay for a fine. It is as an addition to the classic punishments under law.
Many factors also exist in order to determine the range of fines that the defendant will need to pay or must pay in the event of a guilty DUI case. Depending on the state you belong in, your fine is subject to change according to that state’s minimum and maximum fines. However, the judge who is hearing the DUI case also has a say with regards to the fine you are going to pay and this fine is subject to the judge’s fair discretion.
Generally, there are two major fines that you may face after the sentencing of your DUI case namely –
– Criminal fines and;
The difference of the two lies in the fact that the criminal fines are under the criminal case while the other fine, which is the restitution, is ordered under a civil case.
Furthermore, criminal fines or one they call punitive DUI fees is established by a specific state laws and the judge hearing the drinking and driving (DUI) case. The very purpose of the punitive DUI fines is to prevent future committal of the same crime by the defendant and to punish the defendant for the crime he or she has committed. The amount paid as fine varies depending on the facts uncovered during the case and the location or state where the DUI offense took place. First offense DUI fine ranges from $500 to $1000. However, in cases of multiple DUI arrests and convictions, the defendant may face for up to a $15,000 or higher fines.
Aside from the DUI fines mentioned and ordered by the state laws or court, the defendant is also going to pay for additional fees related to the criminal penalty. To make it more concrete, the defendant needs to pay for mandatory drug and alcohol recovery programs as well as sessions in alcohol education. The fees for the recovery and class sessions are added with the total amount of all DUI fines.
Additional fines from the department of motor vehicles may also be imposed. Also aside from the fines, your driver’s license may also be revoked or suspended. If you want to file for an appeal or motion to have an administrative hearing in an attempt to rescind the case, you should also shoulder all the cost related to this.
When you’ve been charged with drunk driving in Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. DUI. Criminal Charges. Sex Crimes. Drug Crimes. Assault. Battery. Rape. White Collar Crimes. Expungements. And More. We want to help you.
Maybe. Was the will filed with the court in Utah? If the will is on file in the Courts in Utah; then yes. If it wasn’t; then no.
Numerous individuals realize they need a will, however not every person comprehends what a will is or what it does.
A great many people realize that they ought to have a will, however many don’t have the foggiest idea what a will is and how it functions.
A will, now and then called a “last will and confirmation,” is a record that expresses your last wishes. It is perused by a province court after your passing, and the court ensures that your last wishes are completed.
Most people use a will to leave instructions about what should happen to their property after they die. However, you can also use a will to
• Name an executor.
• Name guardians for children and their property.
• Decide how debts and taxes will be paid.
• Provide for pets.
• Serve as a backup to a living trust.
You shouldn’t try to use a will to:
• Put conditions on your gifts. (I give my house to Susan if she finishes college.)
• Leave instructions for final arrangements.
• Leave property for your pet.
• Make arrangements for money or property that will be left another way. (Property in a trust or property for which you’ve named a pay-on-death beneficiary.)
You can compose a will yourself, or you can contract a legal advisor to keep in touch with one for you. On the off chance that you keep in touch with one yourself, you’ll need to locate a cooperative attitude layout to support you. To get familiar with finding and utilizing a cooperative attitude layout read Utilizing a Will Format and Kinds of Will Formats.
There are no enchantment words that must be utilized to make a will. The best guidance for composing your own will is to locate a positive attitude composing instrument to support you. It should enable you to utilize clear, unambiguous language to precisely portray your desires. It ought to likewise clarify your alternatives and help you choose what to incorporate into your will. For instance,
•Do you need to name a few degrees of agents?
•Do you need to name more than one agent to cooperate?
•Do you need to name gatekeepers for your youngsters or their property?
•Do you need to make a trust for your kids, with the goal that they get your property when their more established than 18?
What’s more, a cooperative attitude making format will enable you to know when you should see a legal counselor for assistance composing your will. For instance, you should converse with a legal counselor on the off chance that you:
•Want to exclude your companion or kid.
•Are stressed that somebody may challenge your will.
•Want to give cash and care to pets after your passing.
•Want to control what befalls your property long after your passing.
•Are stressed over home duties.
Most probate records are open record, accessible to anybody needing data on a perished individual or their property. The area probate representative keeps probate records that you can look face to face, or you might have the option to see some data on the web. Looking through probate records can uncover procedures in which you may be by and by intrigued, for example, a relative whose domain is being probated. It’s likewise a decent method to do parentage research and assemble data about your family.
Probate/home documents incorporate the procedures of all business identifying with:
•the demonstrating of a will, in situations where there was one, or
•to a definitive settling of a domain in occurrences where the individual kicked the bucket intestate (without leaving a legitimate will).
Probate records were generally made and kept up by the court vault nearest to the living arrangement of the perished individual or the agent of the will. While the substance may shift, numerous records contain a duplicate of the will, if there was one. A common record may contain:
•copy of the will,
•inventory of assets,
•claims from loan bosses, and
•general family and money related data.
Probate is the procedure that happens after somebody bites the dust. It includes a ton of administrative work and is generally directed by the probate court in the locale where the individual kicked the bucket. The job of probate is to guarantee the expired’s will is substantial, assembling all her property and resources, taking care of her tabs and charges and, at last, conveying property to beneficiaries. These obligations tumble to the individual names as agent in the expired’s will. On the off chance that the expired passed on without leaving a will, the court will delegate a capable individual, called an executive, to deal with the obligations of probate.
A last will and testament is a significant advance in arranging the conveyance of your bequest (genuine and individual property) upon your demise. Utah wills license the deceased benefactor, the individual composition the will, to accommodate a mate, kids, other friends and family, and pets after his demise just as to name an individual delegate for the domain.
Not to be mistaken for a will, an Utah living will, or medicinal services order, gives directions should you become debilitated and unequipped for settling on choices with respect to your therapeutic consideration.
Albeit a last will and testament isn’t legitimately required, without a will, state laws (called laws of intestacy) decide the dispersion of a domain’s advantages. Since the result may not match with the decedent’s (the individual who passed away) wishes, it is commonly prudent to make a last will and testament.
Notwithstanding giving the chance to coordinate resource dissemination, an Utah last will and confirmation additionally enables the departed benefactor to cause a beneficent blessing, to make a trust for any individual, name a lawful watchman for minor youngsters, or make a “pet trust” so as to accommodate the consideration of a creature after its proprietor’s passing. The will likewise enables the deceased benefactor to name an individual to manage the home and ensure the will is appropriately dealt with. This individual is known as the agent.
Before the conditions of a will can be acknowledged, the will must be demonstrated in probate court. Probate is the court-directed procedure of appropriating the home of an expired individual.
When an Utah will is demonstrated, the agent can continue to wrap up the bequest, which incorporates gathering and ensuring property, satisfying obligations, and afterward appropriating resources.
Utah offers a streamlined probate process for bequests that don’t surpass $25,000 in worth and don’t contain genuine property.
Don’t expect to see your grandfather’s will while he is alive, unless he decides to show it to you. While the testator — the person making a will — is alive, his last testament is private and completely revocable. Your grandfather can change it on whim by writing a codicil or drafting a superseding will. However, when the testator dies, his will becomes effective — and public. The court opens probate on the will and any member of the public can view and copy the document in the clerk’s office.
The most effective method to Find Online Probate Records and Solicitation
Where the area keeps up online records, you can look through the database on the web for the name of the individual whose bequest you are keen on. Info the individual’s last name; last name and first name; or last name, first name and center beginning. You can likewise look by lawyer name, court docket or case number. An online hunt commonly will give you the case record for the archives you are searching for. Nonetheless, you will most likely be unable to see the genuine reports in the record.
When you have found the fitting district where the probate home ought to be managed, an online quest should be possible for that province’s probate court or probate court dockets. This can be precarious in light of the fact that in certain states the probate court isn’t really called the probate court, it could be alluded to as the “district court,” “provate court,” or some other number of courts.
Be that as it may, be persevering. Since probate happens in every single region over the U.S., odds are you will have the option to find the suitable court’s online data.
Here are a few quests that you can attempt:
• “_________ (embed proper name) District probate records”
• “_________ (embed proper name) District probate court”
• “_________ (embed proper name) District probate dockets”
• “_________ (embed proper name) district court records”
When you have found the proper district and view the probate court docket on the web, normally the means engaged with getting a duplicate of a will or other probate archive legitimately from the probate court will incorporate the accompanying:
•Appearing face to face and requesting a duplicate of the will or other probate reports, or making a composed solicitation by fax or mail if applying face to face isn’t possible.
•Paying a duplicating expense for the quantity of pages that the will or other probate archive contains. These charges ordinarily extend from $1.00 to a couple of dollars for each page.
•Providing a self-tended to, stepped envelope for mailing the duplicates if the solicitation isn’t made face to face.
When making a Will you have to think about who will be named as your own delegate or agent to regulate your home, who you will name as gatekeeper and trustee of minor youngsters if your companion doesn’t endure you and who will get your property. You ought to likewise consider assessment issues. The individual selected as agent or head is regularly your life partner, however you ought to likewise name an other, in the event that your life partner predeceases you. The individual you name ought to be an individual you can trust and who will coexist with the recipients named in the Will.
In the occasion your life partner predeceases you, the gatekeeper you name will have genuine guardianship of your minor youngsters except if a court chooses another person. The trustee you delegate to oversee a trust you built up will be accountable for the advantages of the trust to support the minor recipients.
For the most part, a Will must be marked within the sight of in any event two observers (three for Vermont) who likewise sign the Will. A legal official open will likewise need to sign if the Will contains a self-demonstrating oath. For the most part, a self-demonstrating sworn statement enables the Will to be confessed to probate without other proof of execution.
Joint Property: Numerous individuals don’t comprehend that joint property may go outside your Will and furthermore once in a while accept that it will go through their Will. They don’t comprehend the noteworthiness of joint possession. The issue is normal in the accompanying regions, gave as models:
(a) Land: Frequently, a couple will possess land as joint occupants with privileges of survivorship. In the event that one gathering bites the dust, the enduring party gets the property paying little mind to what the Will gives. This is normal and for the most part adequate. Nonetheless, if this isn’t your longing you should change the responsibility for property to occupants in like manner or other type of possession. On the off chance that you possess land as inhabitants in like manner, at that point you may assign who will get a lot of the property at your demise. This issue can be an issue when ignorant people accept title to land as joint occupants with privileges of survivorship yet truly expected to leave their offer to, for instance, offspring of an earlier marriage.
(b) Financial balances/Testaments of Store, Stock, Retirement Plans, IRA’s and other sort Property: a similar possession as land can be made of these ventures. Truth be told, numerous Banks routinely spot Financial balances and Endorsements of Store in the joint inhabitant with right of survivorship type of possession if more than one individual is on the record or Disc, without educating you concerning the outcome of same. In circumstances where the people are a couple and there is no issue or worry over separation or youngsters from past relationships, this might be the best strategy. In any case, with separation on the ascent, pre-marriage understandings and different relationships being normal, the gatherings might accomplish something that was not their goal. Another regular dangerous circumstance is the place a parent has more than one youngster yet just a single kid dwells in the main residence of the parent. The parent may put the name of the youngster who dwells there on all records, Compact disc’s and different ventures for accommodation reasons and build up a joint occupant with right of survivorship circumstance without understanding that lone that kid will be qualified for those benefits at the parent’s demise. Basically, you ought to know when you obtain a benefit or venture precisely how it is titled.
When you need legal help finding a will online in Utah, or you need estate help, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Probate. Estate Planning. Last Will and Testaments. Powers of Attorney. Health Care Directives. Revocable Trusts. Asset Protection Trusts. Irrevocable Trusts. Estate Disputes. Estate Lawsuits. Estate Litigation. Estate Mediations. Estate Arbitrations. And Much More. We want to help you.