Law Offices of Journey L. Beard
1975 E. Sunrise Blvd., 7th Floor Ft. Lauderdale, FL 33304 (954) 462-1313 evidence@bellsouth.net |
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Practice Areas
Our law firm can conveniently and efficiently represent clients on immigration matters located WITHIN or OUTSIDE the United States. This is possible because Immigration Law is FEDERAL LAW, thus no individual state is allowed to pass any legislation regarding immigration matters. THE H-1B 'WORK VISA' APPLICATION PROCESS This type of non-immigrant visa entitles the recipient to a temporary permit to work in the U.S. It is the first stage in obtaining permission for an alien to live and work in the U.S. The H-1B is typically granted for a period of up to 3 years, with later renewals possible. The maximum time an U.S. company can employ a foreign individual is 6 years. The H-1B is often used for staffing long-term assignments since it is quicker to obtain than a 'Green Card'. An individual cannot personally apply for an H-1B visa to allow them to work in the U.S. Rather, the employer must petition for entry of the individual. WHAT ARE THE H-1B 'SPECIALITY OCCUPATIONS' ? The H-1B is designed for 'speciality occupations'. This has been defined as being those ocupations which require a high degree of specialized knowledge. This typically means the individual will be a graduate with at least three years of post-graduate experience within the occupation, and the degree being directly related to the occupation. A Bachelor's degree is usually acceptable, however, there are some professions that require stricter entrance requirements. Individuals within these professions are required to hold higher degrees than are deemed necessary to do the job. A non-graduate may be employed on an H-1B visa when they can claim to be 'graduate equivalent', usually by virtue of 12 or more years of experience. WHO IS ENTITLED TO A H-1B STATUS, AND FOR HOW LONG? The requirements include:
Up to 65,000 H-1B visas are issued each fiscal year and are usually for 3-year increments. (Typically, there is a maximum duration of 6 years.) If the person leaves the U.S., the 6-year clock can start ticking again. Positions considered 'professional' are accountants, computer programmers, scientists, researchers, graphic designers, and dieticians. WHAT ARE 'NON-SPECIALITY OCCUPATIONS'? Positions that are not 'speciality occupations', or for which the individual lacks the qualifications/experience for an H-1B visa, may be filled using an H-2B visa. A huge disadvantage of the H-2B is that it requires LABOR CERTIFICATION, an expensive and time-consuming process that requires extensive advertising of the position, determining the 'prevailing wage unit', filing the Labor Condition Application (LCA), posting the LCA at the employer's place of business, satisfying the authorities that no U.S. workers are available to do the job, and filing the I-129 Petition. The employer must demonstrate that the employment of a foreign worker will not adversely affect the wages and/or working conditions of workers in the U.S. who are similarly employed. CAN AN H-1B EMPLOYEE APPLY FOR PERMANENT RESIDENCE WHILE WORKING IN THE U.S.? YES. Those individuals wishing to remain in the U.S. for more than the 6 year period may apply for permanent residence ("Green Card') while still in the U.S. on an H-1B visa. If the H-1B employee does not gain permanent residence when the 6-year period runs out, they must live outside of the U.S. for at least one year before an application is made to enter on another visa. WHAT IF A COMPANY BRINGS AN EMPLOYEE TO THE U.S. ON A H-1B VISA, BUT THEN DISMISSES THEM BEFORE THE VISA EXPIRES? The company is liable for any reasonable costs that the employee incurs in moving them, their personal belongings, and (if appropriate) their dependents, back to their last foreign residence. This provision only covers DISMISSAL, and is not relevant when an employee chooses to resign. WHAT ARE THE 3 STAGES FOR APPLYING FOR AN H-1B VISA? An application for Labor Certification is made using Form ETA 750. This Form comes in two parts, Part A and Part B. Each part must be accompanied by corresponding documents. Some of the pertinent information is outlined below. 1. PREVAILING WAGE INFORMATION. The employer usually applies to the 'Prevailing Wage Unit' (PWU) within the local state employment service. The PWU has specialized knowledge of the local labor market, and must be presented with details of the pertinent position. The PWU will then determine the prevailing wage in the area for such positions. This is important because the employer must be paying at least 95% of the prevailing wage. Often times, if the employer can obtain other evidence which indicates the prevailing wage level, it may be an acceptable alternative. (Such evidence might be an authoritative industry report.) 2. LABOR CONDITION APPLICATION (LCA). The second stage of the H-1B process begins when the employer files a Labor Condition Application (LCA) with the regional U.S. Dept. of Labor office. The application must contain details of the position, hours to be worked, conditions of work, salary to be paid, and prevailing wage level. Additionally, copies of the LCA must be posted in at least two places in the employer's place of business, and must contain instructions on how to register objections to the application. The employer must keep records of the conditions of work, hours worked, and salary paid to all staff on H-1B visas, and all staff in similar positions. The U.S. Dept of Labor's Wage & Hour Division will inspect these records on a regular basis. If the employer fails to keep such records, or doesn't pay the promised wage, it may result in sanctions, such as fines, back pay, and a ban on applying for ALL visas for one year. 3. THE I-129 PETITION. The last stage of the H-1B application process is the filing of an I-129 Petition with the appropriate INS regional office. The Petition should include detailed information about the employer, job, and prospective employee. The I-129 Petition must be accompanied by the following items:
WHO IS ELIGIBLE FOR THE TN-1 VISA APPLY? Canadians can frequently gain entry to the U.S. with greater ease than others. This preferential treatment is linked to treaty provisions within the North American Free Trade Agreement (NAFTA). There are many NAFTA-related visas, but the most useful one is the TN-1. The TN-1 is similar to the H-1B; it may only be used where the employer is a legal entity based in the U.S., and the foreigner is a profesional in one of the specialized categories. There are significant advantages of the TN-1 over the H-1B, such as:
The TN-1 is granted for a specific employer. If there is more than one employer, multiple TN-1 applications must be made. (Self-employed professionals would not qualify under the TN-1, but may consider using the E-2 Treaty Investor category under NAFTA.) WHAT DOCUMENTS SHOULD AN APPLICANT BRING TO THE BORDER? The applicant should bring the following documents:
WHAT ARE SOME OF THE QUALIFYING PROFESSIONS UNDER THE TN-1 CATEGORY?
AFTER I'VE OBTAINED A VISA PETITION APPROVAL, THEN WHAT HAPPENS? Once the INS has approved a visa petition, the next step is to have the visa stamped into the individual's passport. The visa may be stamped at a local U.S. Embassy or Consulate, and usually takes between 1-9 days. If the individual is already in the U.S. on a non-immigrant visa; B-1 or B-2 visit visa, they may apply to the INS for adjustment of status while remaining in the U.S. This option is not available if the individual is in the U.S. under the 'visa-waiver' program. The INS may be reluctant to allow an adjustment of status application, however, if the individual did not previously advise the U.S. Embassy or Consulate of the possibility of a change of status. NEWS UPDATES NEW H-1B IMMIGRATION LEGISLATION ENACTED ON OCTOBER 21, 1998 Congress passed and President Clinton signed into law the 'American Competitiveness and Workforce Improvement Act on October 21, 1998. The H-1B classification is available to foreign nationals who will be employed in 'specialty occupations' for which they qualify. Prior to the enactment of the new legislation, only 65,000 foreign nationals could be approved for H-1B classification each fiscal year. In fiscal year (FY) 1997, the H-1B cap was reached in August. In fiscal year (FY) 1998, the H-1B cap was reached in May. The new legislation greatly increases the number of H-1B visas available for the next three years. The legislation contains significant modifications to the H-1B non-immigrant visa program which may affect many companies' ability to employ H-1B non-immigrants. The following modifications were effective immediately upon the enactment: 1. Raises the H-1B Quota. The quota has been increased from 65,000 to 115,000 for both FY 1999 and FY 2000. In FY 2001, the cap has been increased to 107,500. After FY 2002, the cap returns to 65,000. 2. New Benefits Provisions. H-1B employers must offer H-1B non-immigrants benefits and eligibility for benefits on the same basis and in accordance with the same criteria as U.S. workers are offered. 3. No 'Benching' Rule. H-1B employers must pay H-1B non-immigrants the required wage for the full hours specified on the H-1B petition in regular installments, even if the beneficiary is in nonproductive status due to a decision by the employer, a lack of work, or based on the non-immigrant's lack of a permit or license. 4. Unconscionable Contract Provisions. H-1B employers may not require H-1B non-immigrants to pay a penalty for leaving their employ before a certain date. 5. Electronic Posting. H-1B employers may give electronic notice to all workers in the same occupational classification where the H-1B non-immigrant will be employed instead of through a physical posting for 10 business days in two conspicuous places. 6. Non-Dependent vs. Dependent H-1B Employers. H-1B employers are classified as either 'H-1B Dependent' or 'H-1B Non-Dependent', based upon the number of H-1B non-immigrants and the total number of employees in the corporate family. 7. Exempt vs. Non-Exempt H-1B Non-Immigrants. An H-1B non-immigrant is classified as either 'exempt' or 'non-exempt', based upon the salary offered to him/her or the degree possessed by the individual. I-485 ADJUSTMENT OF STATUS CASES' PROCESSING SUSPENDED All four regional INS service centers have suspended the processing of I-485 Adjustment of Status cases filed on or after April 1, 1998. The outside computer subcontractor, EDS, provides the case management software for INS, and it has apparently failed to deliver readable fingerprint data tapes to the FBI and CIA. Because of the backlog problems, each of those agencies is trying to catch up, but the CIA has only caught up through April 1, 1998. (The FBI is caught up through September, 1998). It is expected that only the Nebraska INS Service Center would be immediately impacted since the backlogs at most of the other Centers are longer than 7 months. Also, INS stated that cases involving children close to 21 ARE NOT BEING PROCESSED, since there is a danger of them 'aging-out'. 6,000 ALIENS BOOTED - Toronto Sun, Thursday, November 26, 1998 Canada is not a haven for aliens and criminals, and a record number of them will be deported this year, say immigration officials. About 6,000 people have been sent packing so far this year, and immigration officials say more than 8,000 (including 2,000 criminals), will be kicked out by year's end. "We will not become a haven for criminals," said immigration spokeman Huguette Shouldice. "This year will be a record-breaking year for removals." Ontario once again leads the country with deportations, with almost 2,500 being deported so far this year.
SCHROEDER SLAMMED BY PARTNERS FOR IMMIGRATION TALK - Thursday, November 26, 1998 (AP) BONN (Reuters) - German Chancellor Herhard Schroeder was criticized by his junior coalition partners (the Greens) on Thursday for saying that Germany had no room for more immigrants. Greens party members and froeigners' groups said the comments Schroeder made to the weekly newspaper Die Woche on Wednesday could stir up xenophobia. Schroeder said " .. that Germany can't cope with additional immigration," and firmly stood behind his Interior Minister, Otto Schily. Schily has been sharply criticized by politicians and foreigners' groups for making similar remarks. Greens chairman Kerstin Mueler said it was obvious that Germany was a land of immigration. "As a nation in the middle of Europe, we cannot just shut ourselves off." Schroeder said Schily had simply stated the facts when he said Germany's capacity to take in immigrants had been exceeded. Schroeder told the Minister's critics not to forget that Schily was also behind government plans to extend German citizenship to millions of foreigners living in Germany. CALL FOR RISE IN LEVEL OF MIGRATION - By Sandra McKay, The Age (Melbourne, Australia), Friday, November 27, 1998 The heads of some of Australia's largest companies have called on the federal Government to significantly increase migration levels and stamp out One Nation's message that migrants steal jobs. At an unprecedented business round-table hosted by the Governor, Sir James Gobbo, 20 executives from companies including Hewlett Packard, Mobil, Ford Australia, Bonlac, and the Grollo Group called for an increase in immigration levels. . . . The State Government has already called on the Commonwealth to almost double the level of skilled migration to Australia next year. Big firms are now employing migrants to be their outpost riders and opening up businesses off-shore. Sir James said Australia could not afford to "pull up the drawbridge and ... (stay) living in the Kingdom of Oz," and needed a vital immigration program. "One Nation claims migration harms Australia, but all of the evidence and the business experience offered at this forum is that we are gaining employment, investment, and direct economic growth as a result of the migration we've had," Sir James said.
QUESTIONS AND ANSWERS TO IMMIGRATION LAW WHAT IS THE GREEN CARD LOTTERY? For fiscal year 2000 (October 1, 1999 - September 30, 2000), the U.S. Congress authorized the allotment of 50,000 immigrant visas in the DV-2000 category. Foreign nationals who were natives of countries which the I.N.S. determined were low admission foreign states were eligible to apply. The application time started at noon on October 1, 1998 and ended at noon on October 31, 1998. WHO IS ELIGIBLE TO APPLY FOR THE LOTTERY? The person must be a native of a low admission foreign state, have at least a high school education or its equivalent, OR, within the preceding 5 years, have 2 years work experience in an occupation which requires at least 2 years training or experience. The DV-2000 program determines visa issuance among 6 geographic regions, namely Africa, Asia, Europe, North America (except Mexico), Oceania, and South America (includes Mexico, Central America, & the Carribean). The WORLD is divided up into high admission and low admission regions, and in turn, each of the 6 REGIONS are divided into high admission and low admission states. A greater proportion of the visas go to the low admission regions. In fact, high admission states are excluded from the lottery. Likewise, no single state may receive more than 3,500 (7%) of the alloted visas. WHICH ARE THE HIGH ADMISSION STATES WHICH ARE EXCLUDED FROM THE LOTTERY?
INS CITIZENSHIP BUDGET GETS INCREASE IN FUNDING Congress granted the INS a big budget increase to speed up the application for citizenship processing time. The INS has estimated that processingtimes would be cut nationwide from 10 -12 months by the September 30, 1999. The INS has 127 application support centers operating around the U.S. They handle fingerprinting, and are expected to handle INS photographs and administer the citizenship & English exams in the future. Fifty-nine of these offices are permanent, 54 are located in INS field offices, and 14 are temporary locations. Although immigration law may, at times, be a complex legal area in which to practice, our firm firmly believes that many determined people can complete the lottery application process themselves. Many people, however, feel more comfortable seeking professional assistance. Our clients have requested that we provide a lottery registration service since the National Visa Center has b>REJECTED as many as 1/3 of applications it has received because they weren't filed correctly. Also, many people may request our representation because they reside outside of the U.S. and are concerned about the reliability of mail service, or because they may be living in an undetermined location when the lottery winners are chosen. Upon your request, our law firm will submit an individual's application, and it will indicate our law firm as the notification address. After we receive your application, instructions regarding photographs and signatures will be given. Our law firm uses the telephone, e-mail, overnight courier, and facsimiles to keep in touch with our clients. Rules for entering the DV-2001 program should be released during the summer of 1999. The lottery will probably be in OCTOBER-NOVEMBER OF 1999. To reduce the expected last minute flood of filings, we are accepting applications early. If you would like our law office to prepare and submit your Green Card Lottery Application, please contact us via e-mail. Our fees are as follows:
If you would like our assistance, please include the following information in your e-mail:
If you don't wish to send credit card information over the web, please fax us this information to (954) 462-3616, or mail it to the following address:
We will contact you promptly after the application is received. Please note that our law office will not refund any payment after your lottery application has been sent to you for your signature. HOW DOES A PERSON OBTAIN A TEMPORARY VISA TO ENTER THE U.S. They must show, through strong personal, professional, or other evidence, that they intend to depart the U.S. within the prescribed time frame. Visas may be valid for 1 or more entries into the U.S. HOW CAN A PERSON OBTAIN PERMANENT RESIDENCE BY MARRIAGE TO AN U.S. CITIZEN? It depends upon whether the U.S. citizen is living in the U.S. If he/she does, submit an application to the particular I.N.S. office having jurisdiction over the U.S. citizen's residence. Once it's approved, the foreign national spouse can file for adjustment of status, employment authorization, and a travel permit. The I.N.S. will issue a work card and a temporary travel permit. Next, the I.N.S. will set up a marriage interview, usually within the following 2-15 months. Items examined may be wedding photographs, tax returns, insurance documents, and identification. Interviews of each spouse may also occur to establish if the marriage is legitimate. If the U.S. citizen resides abroad, the application must be submitted at the appropriate U.S. consulate. The waiting time is usually reduced to 3-6 months. CAN AN INDIVIDUAL BE A 'NATIVE' OF A COUNTRY OTHER THAN THE COUNTRY THEY WERE BORN IN? A 'native' is both someone born within one of the qualifying countries AND someone entitled to be charged to that country, under Section 202(b) of the Immigration & Nationality Act. Someone may be charged to the following:
If an individual claims to be a native of a country other than where he/she was born, he/she must include a statement indicating that on the lottery application, and must show the country of chargeability on the application envelope. IF YOU WOULD LIKE AN OFFICE CONSULTATION, PLEASE NOTE THE FOLLOWING:
If you presently live in the U.S., please bring/send the following documents:
If you have a job offer, please provide the following information about the employer:
If you would like to engage the services of this office, please call us at (954) 462-1313, our Boca Raton office at (561) 391-6055, or send an e-mail to evidence@bellsouth.net The office charges $100 for an initial 30 minute consultation, and will schedule it after we receive the relevant documents from you. As a convenience to our clients, if our services are engaged within 30 days after the consultation, you may CREDIT the entire amount of the consultation fee against the final payment. We are able to accept MASTERCARD and VISA payments. WE LOOK FORWARD TO SERVING YOU SOON.
SEXUAL HARASSMENT A settlement that shattered records occurred just last year, as Mitsubishi Motors Manufacturing agreed to pay $34 MILLION DOLLARS to hundreds women who worked at its plant in Normal, Illinois. (Apparently, there was nothing 'normal' about working there...) The women sued Mitsubishi for failing to stop the widespread sexual harassment they had endured for years while on the job. Close to 400 male workers allegedly harassed more than 300 female co-workers from 1990 - 1997. The male co-workers were alleged to have made vulgar remarks and referred to them as "whores", "sluts", and "bitches". Several women reported being sexually battered. One woman described a male co-worker holding an airgun between her legs. Other women said they were compelled to quit their jobs at Mitsubishi because the atmosphere was so overtly hostile towards women. It appears the lame arguments of the past, such as "boys will be boys", is wearing thin in the eyes of the Court. In fact, 27 ADDITIONAL women filed a separate civil lawsuit apart from the EEOC investigation, and charged similar tortious conduct and harassment at Mitsubishi. In August of 1997, that case also settled ... for a cool $9.5 MILLION DOLLARS!!! The story turns even more interesting when one examines Mitsubishi's response to the charges filed in April of 1996. Interestingly, the giant automaker provided nearly 3,000 workers with a PAID DAY OFF and gave them BUS TRANSPORTATION so they could picket EEOC's Chicago office in protest. Even more enlightening, many of Mitsubishi's Human Resources executives dressed up in sumo wrestler costumes for the annual Christmas party that year and simulated sex scenes. (Mitsubishi doesn't sound like the type of car I will ever buy again ...) Many women had mixed feelings on the settlement, and wished there had been a public airing of the examples of harassment. Because there was a settlement, there was no court hearing and no TV coverage revealing the abuse or the abusers. A former federal judge who helped negotiate the EEOC/Mitsubishi settlement stated that a hearing may have done even more harm. Judge Abner Mikva reportedly reflected that the community morale may have been even more decimated to hear women stand up and describe the abuse they suffered at the hands of local male residents. ARE THERE ANY LESSONS LEARNED FROM THE MITSUBISHI SETTLEMENTS? To the 'silent sufferers' ... Exercise your legal rights. You don't have to "shut up and take it". If you believe you are the victim of sexual harassment, carefully document the incidents in which harassment has occurred. Get the names of the harassers, dates, witnesses, supervisory people who were told and their responses. INCLUDE AS MUCH DETAIL AS POSSIBLE. The more vulgar and egregious the behaviors you have endured, the stronger your case will be. If there are any notes, letters, or other written evidence which indicates the harassment, save them!! If you visited a physician as a result of the harassment, document the medical appointments. Specifically describe the incidents to your doctor so they are included in your medical reports. If your job performance suffered as a result of the harassment, explain how it was affected. Job performance reviews tend to be highly revealing if they indicate an excellent worker who continually received excellent performance reviews, yet strangely was fired after complaining to the employer about the harassment. Unfortunately, it is still not unusual for 'good ole boy' employers to retaliate and fire the harassed employee rather than a fellow crony. Witnesses may be reluctant to step forward for fear of being fired, yet they may be willing to document on paper what they have witnessed. Request that each witness write down their description of the incident(s), citing names of the harassers and dates of occurrences. It is often critical to your success that you obtain their first-hand knowledge of the incidents. Effective 'smoke-and-mirror' defenses to harassment charges usually are protests that the statements were harmless or the woman has overreacted. Having neutral witnesses and/or their written statements is powerful and persuasive evidence to convince a jury the actions or intent of the harasser was otherwise. DON'T WAIT when deciding whether to talk to a lawyer about your concerns. There are different statute of limitations that apply depending upon the particular type of lawsuit chosen to use. Also, there may be various state and federal laws to follow, thus legal strategies must be formed quickly and pursued. Laws in this area continue to be change as more women refuse to tolerate unbearable situations. Thousands of women are flooding into the workforce, colleges, law schools, and medical schools around the country. Their intolerance for vulgar and harassing behavior is evidenced in the increase of lawsuits being filed.
JOB-BIAS QUESTIONS REQUIRING SPECIFIC ANSWERS:
Like most workers, you may have experienced occasional job-related problems. You may even wonder if you have been treated fairly and legally on the job. You may have faced situations like the following:
VICTIMS OF DISCRIMINATION ARE UNABLE TO ALTER WHAT HAS MADE THEM VULNERABLE TO ABUSE. How do you change being female, black, hispanic, handicapped, etc? Contrast this situation with people who are fired 'for cause'. These people can learn from their mistakes and modify their behavior.
ACTION PLAN IF YOU'RE A VICTIM OF EMPLOYMENT-BIAS It is vital to ACCUMULATE EVIDENCE IMMEDIATELY, since evidence not gathered quickly mysteriously disappears and is impossible to obtain later. Also, you must FILE FORMAL COMPLAINTS of workplace discrimination with the correct government agencies. Likewise, you must file complaints and LAWSUITS prior to strict deadlines elapsing. These deadlines usually vary from state to state. Strongly CONSIDER HIRING AN ATTORNEY. Most job-bias victims don't know which law(s) may apply for their particular case. Be prepared for RETALIATION from your employer if you anticipate filing a job-bias complaint. Although it's unlawful to punish workers for filing these complaints, many companies do so. MAINTAIN A LOG of important bias incidents and responses that occur at the office. Seek favorable WITNESSES. Don't be surprised if they are afraid to come forward. Request that witnesses write down the incidents of bias they have observed. They may become especially crucial in the next year or two, when memories or friendships fade. If you're fired, START LOOKING FOR ANOTHER JOB immediately. Your actions will be scrutinized to see if you took steps to minimize your out-of-pocket damages. LOOK FOR SATISFACTION OUTSIDE OF WORK. These types of disputes are usually not going to be resolved quickly. A colleague has described them as resembling marathons, not sprints. It's important for your mental well-being to keep a positive outlook. Our firm will accept job-bias cases on a combination contingency/retainer basis, plus expenses. Journey Beard is an active member of the AMERICAN BAR ASSOCIATION and is involved in the AMERICAN BAR ASSOCIATION - LABOR & EMPLOYMENT SECTION.
SHOULD AN INDIVIDUAL VOLUNTARILY GIVE A CONFESSION AND/OR ALLOW A SEARCH? There are very few situations in which an individual should ever agree to make a confession or other statement, OR agree to a search, without first consulting a lawyer. Ironically, the police often do NOT have actual evidence of a crime being committed, but through questioning of a suspect and persuading that person to make statements or agree to a search, the very evidence they need to convict falls into their hands. WHAT HAPPENS AFTER AN ARREST? When you are arrested and taken into custody, look for certain procedures to be carried out before you are released. You will be advised of the charges against you, although the charges may be amended or stated in more detail later. You will also be fingerprinted, photographed, and any personal property (rings, wallets, purses, etc.) will be taken from you and inventoried. These will usually be returned to you after you are released. WHAT HAPPENS AT AN ARRAIGNMENT? Within a reasonable time of your arrest, you must be taken before a judge who will inform you of the charges filed against you, of your right to have an attorney, that an attorney will be appointed for you if you can't afford one, that you don't have to make a statement, but that any statement you do make can be used against you. CAN I BE RELEASED FROM JAIL PRIOR TO TRIAL? Depending upon the state, every person charged with a crime or a violation of a municipal ordinace may be entitled to pre-trial release on reasonable conditions. Some of the exceptions may be:
If there are no conditions of release that can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure that the integrity of the judicial process isn't violated, the accused may be detained. Check the particular rules for each state. ARE THERE DIFFERENT FORMS OF BAIL? Depending upon the particular state's laws, bail may include any of the following, or a combination of the following:
There may also be other forms of bail available. WHAT IS AN INDICTMENT? It's a charging instrument returned by the grand jury which is based upon evidence presented to the grand jury. It must be signed by the foreperson and endorsed by the state attorney. WHEN MAY A 'MOTION TO SUPPRESS EVIDENCE' BE USED? A Motion to Suppress Evidence must clearly state the particular evidence to be suppressed, generally state the facts on which the motion is based, and the reasons for suppression. The following are some of the common grounds for filing this motion:
DOES A DEFENDANT ALWAYS HAVE A RIGHT TO A JURY TRIAL? In all criminal proceedings, an accused is entitled to a jury trial. A defendant may, in writing, waive a jury trial with the consent of the state. ARE THERE ANY WAYS TO FIGHT THE CHARGES FILED AGAINST YOU? In many cases, ABSOLUTELY! The LEGALITY OF THE ARREST can be attacked in court. To legally fight an arrest, you must attack the grounds upon which the arrest was founded. The grounds for an arrest are known as PROBABLE CAUSE. (Determining whether there was 'probable cause' depends upon the totality of the circumstances surrounding the arrest.) If there is no 'probable cause' for the arrest, there may be a basis for the defendant to file documents such as a MOTION TO DISMISS or a MOTION TO SUPPRESS. Drug arrests are the most common offenses in the U.S. today. Being arrested for a drug offense doesn't have to be an experience that destroys the offender's family and life. For many people, being arrested could be the best thing that ever happened to them, since it may force the individual to confront a drug problem they had been unaware of or had been denying. Throughout the country, a new concept called 'drug courts' are evolving. Drug court is a concept that uses criminal justice resources to help people and communities become healthy and productive, as opposed to simply punishing offenders and locking them behind bars at great expense. Often, the person who was arrested gets help for a substance abuse problem, as well as job training and employment education. QUESTIONS WE WILL INVESTIGATE REGARDING YOUR ARREST
QUESTIONS REGARDING BAIL BONDS
PLEA BARGAINS We strive to negotiate structured plea bargains between the prosecutor and the judge that WON'T JEOPARDIZE YOUR EMPLOYMENT, AVOIDS FORMAL CONVICTION, and EXTENDS THE TIME TO MEET COURT-IMPOSED FINANCIAL OBLIGATIONS. FACTS ABOUT FELONY CONVICTIONS In Florida, a conviction for a felony results in the loss of 'civil rights', including the right to vote, AND the right to own, use, or possess a firearm. Likewise, a felony conviction may prevent employment in certain occupations, and has been used as grounds for denial of an occupational license. Felonies are handled in Circuit Court where penalties may include IMPRISONMENT within the State Prison. (Misdemeanors are handled in County Court, where judges have broad discretion in sentencing matters.) DRIVING UNDER THE INFLUENCE - DUI LEARN WHERE YOU STAND & WHAT YOUR OPTIONS ARE
ARE THE BREATH TEST RESULTS FOOL-PROOF? Not always! The results of the breath test can often be challenged or suppressed based on many factors, such as IMPROPER MAINTENANCE, IMPROPER CALIBRATION, or LACK OF CERTIFICATION. Likewise, inaccurate readings may be caused by hiccups or burping, or the lack of proper training or licensing of the operator. CAN I GET A WORK PERMIT? Check your particular state laws. Florida law allows the police to retain your license if you refused to submit to the breath test, OR took the test and had a reading of .08 or above. If your license was confiscated, it was the Department of Highway Safety who suspended your right to drive, NOT the court system. In Florida, you have 10 DAYS to file for a formal review of your suspension. We can usually handle your first court date without you missing any work. In some cases, out-of-town clients may not have to appear in court at all. It is difficult to overemphasize case preparation in a criminal case. It has often been said that a case is only as good as the evidence, and that a prosecution rises and falls on the strength of the witnesses. Careful preparation can discover important evidence and enable witnesses to more effectively present their testimony. The initial case preparation involves a careful reading of all police reports prepared in connection with the arrest. The following information should be contained in each report and should be studied by the attorney:
REASONABLE AND AFFORDABLE FEES. PAYMENT PLANS AVAILABLE. VISA AND MASTERCARDS ACCEPTED. Journey Beard is an active member of the
In today's changing marketplace, buying and selling a home has entered the 'fast-food' arena. Buyers and sellers are nonchalantly turning over properties at breakneck speed, and often don't understand the accompanying rights and liabilities. In their haste to get the deal done quickly, preventive measures are rarely understood or implemented to protect each parties' rights. WHAT'S A TITLE SEARCH? It determines that the seller actually has the right to sell the property, and the buyer is actually getting the title to the property that he/she is paying for. Sometimes referred to as the chain of title, a title search is simply the history of ownership for a particular piece of property. Usually the information is obtained from public records (County Clerk or Recorder's Office), or from private title companies who own and maintain this information. IS A TAX SEARCH REQUIRED? Yes. A tax search determines the present status of general real estate taxes against the property. The search will reveal if taxes are current, past due, or unpaid from prior years. It will also show if there are special assessments against the land, and if they're current or past due. WHAT IS A JUDGMENT AND NAME SEARCH? Probably the most critical item remaining in the 'title search' is determining if there are any unsatisfied judgments against the seller (or previous owners) that existed while they owned the title. A judgment is a general lien against the debtor's real estate, and is security for any money owed under the judgment. More importantly, the real estate can be re-sold to satisfy the judgment! This isn't the type of information the buyer wants to find out AFTER the purchase has taken place. WHAT'S A COMMITMENT? After the above searches have been completed, the title company issues a Commitment To Insure, and names any conditions it has to insuring the title. The buyer, seller, and mortgage lender can then close the transaction if there are no defects in the title that were uncovered during the title search. WHAT ARE THE TITLE INSURANCE CHARGES? Charges for title insurance are usually broken down into two categories: PREMIUMS and WORK FEES. PREMIUMS are typically regulated by the individual state. WORK FEES vary among companies, and costs may hinge on the property owners previous records. For example, a seller may be eligible for a reduction in premiums if they qualify for a re-issue rate for premiums. This means that the seller must provide a prior policy of title insurance. Unfortunately, this is available only in limited situations. More frequently, a seller can often save anywhere between $25-$100 if they provide a copy of their previous title policy as a starting point for the records search. BUYER CLOSING COSTS If you've agreed to pay them, put a limit on them. As a buyer, remember that many fees are negotiable. Almost every fee or charge can be applied to the closing costs which the seller can be requested to pay. Setting overall limits prevents surprises for both parties at the closing table. WHO PAYS FOR THE DOCUMENT STAMPS - CONVEYANCE FEES? It is common for the seller to pay for conveying the property, usually @ $7.00 or more per thousand dollars of sales price. However, if you are financing 'personal' property in the sale, this may not be included in the property sales price and could save you these taxes. Likewise, there may be an added benefit of capital gains taxes due on the sale. Check with your accountant. HOW LONG AM I PROTECTED WITH TITLE INSURANCE? The short answer is ... usually forever (as long as you and your heirs own the property). But remember, FOR THE BUYER TO BE PROTECTED, the BUYER MUST BUY THEIR OWN TITLE INSURANCE. There are two basic forms of title insurance -- (1) OWNER'S POLICY, and (2) LOAN POLICY. The Owner's Policy covers the land owner, and the Loan Policy covers the lender on the piece of property. TIPS REGARDING FINANCING It is important for the attorney to explain to both the buyer and seller what pitfalls may be encountered by executing a contract which is contingent upon obtaining financing. A general rule is BEFORE executing this type of contract, the creditworthiness of the buyer should be ascertained. However, be careful about discrimination against the buyer based on sex, marital status, or race, since refusing to loan money based on one of these factors may be a violation of state laws. Check with your attorney. WHAT IS A 'FICO' SCORE? Lenders will usually grade a prospective borrower's creditworthiness by using a grade from A to D. The A or A+ borrower is typically capable of obtaining the best rates available on the market, and the A- through D buyer may only qualify for what is termed a 'sub-prime mortgage'. There are credit-qualifying profilers on the Internet that will indicate for a prospective borrower how a lender will score his/her credit quality. One such profiler is Keystroke Financial (www.keystrokenet.com). They provide the current loan rates for A through D scores, and show buydown options to lower origination points. IS AN APPRAISAL IMPORTANT? Although a buyer may decide to purchase a home above the market value, it is important (and essential when dealing with the FHA, VA, and rehabilitation loans) for both the buyer and seller to be aware of the market value of the homes in the area to avoid a low appraisal. The contract should be reviewed for provisions which would be affected by a low appraisal and modify them depending upon the intention of the parties. A buyer may be willing to make a larger downpayment, or a seller may be willing to lower the price to reflect the appraisal amount. Or both parties may only be willing to cancel the contract. An appraisal provides a 'reality check'.
Journey Beard is an active member of the AMERICAN BAR ASSOCIATION, FLORIDA BAR ASSOCIATION - REAL PROPERTY SECTION, and has been approved to write title insurance for THE ATTORNEY'S TITLE INSURANCE FUND, INC.
HOW DOES AN INSURANCE COMPANY PROCESS A CLAIM? Dealing with insurance carriers can be more comfortable where there is an understanding of how a claims department functions and the responsibilities of the adjuster. First, of all, a CLAIM MUST BE REPORTED. This usually occurs when the insured contacts the agency which sold the insurance to them, or be contacting the carrier directly. For example, if an individual bought their insurance through an independent entity such as "ABC Insurance Agency", the actual insurance carrier who insures them will likely be an insurance company, such as State Farm, Allstate, Liberty Mutual, Geico, etc. WHAT DOES RESOLVING YOUR INSURANCE CLAIM BY 'FASTRACK' MEAN? When there is no question of coverage and adequate documentation of loss amounts have been provided to the adjuster along with a formal report, many insurance companies issue a payment draft immediately. In fact, the goal is often to process the claim the same day it's received. This type of processing usually occurs for first-party claims only. WHAT'S A 'FIRST PARTY' CLAIM? An example of a first party claim is a theft loss. After an individual has reported to the carrier that a theft has occurred, the insurance representative usually sends a request for a police report from the appropriate law enforcement agency. The insured will receive a form which must be completed and sent back to the insurance company. The insured must give a detailed description of the stolen property, including the cost and date it was obtained. After sending the form back to the insurance company, the adjuster will typically call the insured, finalize the adjustment, and make payment arrangements. The insured (first-party) only has dealt with his/her own insurance company. GENERAL RULES TO FOLLOW AT THE ACCIDENT SCENE A general rule of thumb is to TALK TO NO ONE about the accident, except a lawyer. Always REQUIRE SOME IDENTIFICATION so that you are sure who you are talking to. It is not unheard of for unscrupulous claims adjusters to twist the truth in order to obtain information from emotionally-distraught accident victims. Usually you should not even talk to your own insurance company or to any lawyers hired by the insurance company without first notifying your own lawyer. Any statements detailing how the accident occurred can usually then be taken in the safety of your lawyer's office. ADVICE TO THE INJURED CLIENT REGARDING THE MEDICAL DOCTOR You should FOLLOW THE DOCTOR'S ADVICE. Also, don't minimize or exaggerate your ailments. KEEP A DAILY OR WEEKLY LOG of your complaints and progress. This can be especially helpful if, a year later, you have difficulty remembering the extent of your pain. Your injuries are the most significant aspect of the case, especially if there's little doubt as to liability. Discuss your injuries thoroughly and practically with your doctor. Don't try to impress anyone with your ability to 'parrot' complex medical jargon. It will reduce your credibility and lacks the ring of truth. Instead, your comments will probably sound rehearsed and insincere. GIVE EXAMPLES OF HOW THE INJURIES AND PAIN HAVE CHANGED YOUR LIFE. Likewise, if you are depressed or embarassed by your injuries, share this information with your doctor. MEDICAL BILLS KEEP A COPY of all medical, hospital, and prescription drug bills. Periodically, send these bills to your attorney for processing. All you bills should be paid by check and/or you should obtain and keep receipts. KEEP A LIST of all your medical bills and the costs incurred in going to your doctor, i.e., mileage, etc. Also, keep a record of any other expenses you incurred in connection with your accident, such as the hiring of extra help. WILL THERE BE AN INVESTIGATION AT THE SCENE? Not all accidents require a field investigation by an insurance adjuster. Usually certain types of accidents require field work. They are:
This last group encompasses situations such as accidents at a shopping center. Not only will there likely be typical questions such as WHO, WHAT, WHERE, WHEN, and HOW, but also the terms of leasing agreements, maintenance schedules & responsibilities, snow removal, or hold-harmless & indemnity agreements between the parties. An investigation requires a staff adjuster (or independent adjuster) going to the scene, tracking down and interviewing people who are believed to have pertinent facts, and locating and organizing data. In property damage cases, the purpose is to get straight from the owner what was damaged and the manner in which it was damaged. PHOTOS ARE CRITICAL. In motor vehicle accidents, photos should be taken at the accident site if possible. If photos cannot be taken at that time, they should be taken as near the time of day as the accident occurred and on the same day of the week. This is important because they will simulate as closely as possible the views of the parties and witnesses. Slip and fall accidents usually require establishing not just a single photo of the wet spot, grease spot, or defect, but a series of photos coordinated with a diagram indicating relevant measurements of the accident scene. WHAT DUTIES DOES AN INSURANCE ADJUSTER PERFORM? The PRIMARY duties of an adjuster include:
The SECONDARY duties of an adjuster include:
SALVAGE There are two primary types of salvage: (1) that which is subject to title and registration laws (usually motor vehicles and boats) or regulated in some manner (prescription drugs and foodstuffs), and (2) any other property. The adjuster will try to determine what dollar amount could be obtained if the salvage was sold, assuming there's a willing buyer and a willing seller. (It isn't necessary for the property to be actually sold, the figure is simply important because it then becomes part of the negotiating process.) If the property owner desires to keep the salvage property, the value is usually deducted from the claim. However, if the property owner accepts actual cash value (ACV) as part of the settlement, the property must be immediately surrendered to the insurance company. The adjuster then sells the salvage property and documents the entire process. When titled, registered, or regulated property is being handled, the adjuster must comply with applicable laws or regulations. This is typically seen in motor vehicle claims. Some states require the existing title be converted into a 'salvage title', even if the owner keeps the vehicle. This is merely a birds-eye view of handling salvage, and a local attorney should be consulted to answer questions in more detail. SETTLEMENT TIPS FOR THE ATTORNEY The insurance company is evaluating 3 things:
DON'T USE LEGAL JARGON in your settlement brochure or demand letter. Put your best foot forward. Begin the narrative with a compelling description to convince the reader of the hopelessness of litigating against your client. EMPHASIZE THE EXTENSIVE DAMAGES your client has endured in the past as well as those he/she will encounter in the future. Sending a 'form' narrative letter to the opposing insurance adjuster does little to enhance your reputation as a hands-on attorney who is taking a personal interest in the case. Likewise, routinely demanding the policy limits, regardless of the severity of the client's injuries, proves little except your laziness (or arrogance) in evaluating the case. Do your homework first. MAKE YOUR NARRATIVE INTERESTING SO THAT THE ADJUSTER WILL WANT TO READ FURTHER. If accurate, describe the defendant's behavior as grossly negligent or disturbingly egregious. Conversely, describe your client's actions in a favorable light. Make sure to highlight the hard-working laborer who now suffers with excruciating pain, is unable to perform simple physical tasks, and who is forced to live with little hope of achieving once-realistic goals. If you have a graphic picture of your injured client, consider inserting it in the settlement brochure. The picture's impact will be undeniable, and the adjuster will be able to envision that it (and perhaps others) will be damaging when blown-up for use as an exhibit in the courtroom. WINING AT TRIAL - COMMANDMENTS FOR PROVING PAIN & SUFFERING 1. START SELLING YOUR THEME IN THE OPENING STATEMENT - At the outset, plant the seeds regarding your client's daily pain and suffering. Don't exaggerate the symptoms, but just as importantly, don't minimize the impact the injuries have made in your client's life. The jurors must understand from the beginning that it is THEIR function to reimburse someone who is just like them for injuries caused by the defendant. 2. PAIN is 'PHYSICAL' pain - Pain does not necessarily equal 'suffering', and they must be distinguished for they jurors. SUFFERING is best described as the MENTAL ANGUISH that results from the pain. SUFFERING is the gnawing fear that eats away the peaceful moments because the injured client no longer knows what the future holds for them. 3. DON'T LET THE PLAINTIFF COMPLAIN - No one likes a whining witness. Let the plaintiff's family, friends, and doctor do the complaining. For example, studies show that the single biggest fear of an adult male is the inability to provide for his family. From the moment you are retained as the attorney, get to know your client as a human being, not merely as a potential source for financial gain. As the trial approaches, consider eating dinner at your client's home. Not only will you feel more personally involved in the case, you will also notice little things the family is still forced to deal with as a result of the accident. Weave these examples into the witnesses' testimony, and watch the case come alive for the jury. 4. EXPLAIN TO THE JURORS USING EXAMPLES - Having a witness tell the jury that your client can no longer work around the house does little to describe the changes that have occurred. A more effective presentation might be testimony demonstrating how your client can no longer bend over to pick up his/her crying baby, or how dirty dishes are routinely stacked in the sink in comparison to what used to be known as a 'spotlessly clean' house. 5. PLAY SHOW AND TELL. Rather than tell the jury, show them. They are more likely to remember it, and they are also more likely to be impressed by it. For example, consider having your doctors 'teach' the jury pertinent facts about your client's injuries using his/her x-rays. Use demonstrative evidence whenever possible. WHEN SHOULD DEMONSTRATIVE EVIDENCE BE USED? Don't overlook the value of demonstrative evidence. Probably the easiest and most practical type are the actual X-RAYS taken by the hospital and treating doctor. If your client suffered a displaced fracture, the x-ray will typically show the bones literally broken away from each other, and the sharp pieces piercing the client's muscle and flesh. The after-surgery x-rays will show the hardware inserted, and tends to be an impressive sight for the jury. Have the client keep all the pins, screws, plates, or bolts from the doctor.
These are just a sampling of the issues you will be faced with in the event of an accident. Your attorney can help you through the maze of insurance companies, property damage repairs, lost wages and earnings, interviewing of witnesses, photographs, and other questions that arise.
WHAT DOES THE FUTURE HOLD FOR PERSONAL INJURY CLAIMS?
The law is changing constantly, both through the operation of judicial opinions and through the legislatures. Recently, there have been huge efforts on the part of businesses and insurance companies to limit the right of persons seeking recovery for their losses. These efforts are typically disguised as "tort reform", and often involve imposing an obstacle to recovery, such as requiring a 'permanent injury threshold'. Another favorite weapon of the insurance lobbyists' groups are the limiting of damages, such as the mandatory reducing of any medical bill award by insurance proceeds already paid.
Unfortunately, these efforts ALMOST ALWAYS involve taking away the decision-making process from the judge and jury. Instead, many of the decisions are made in the backrooms and hallways where lobbyists lurk, and the general public is unaware of laws changing until it's too late. More importantly, legislative programs sponsored by businesses and insurance companies, once approved, are rarely repealed. The result usually changes the legal process forever.
LITTLE KNOWN FACTS ABOUT THE MCDONALD'S SCALDING COFFEE CASE
The insurance industry continues to use the infamous McDonald's case as ammunition for a backlash against "outrageous jury verdicts", and is successfully lobbying legislatures for laws which limit damage awards. Interestingly, we thought we'd include some of the little-publicized facts surrounding the case.
AND NOW ... THE REST OF THE STORY ...
INTERESTING NOTE - A post-verdict investigation revealed that the temperature at the local Albuquerque McDonald's had dropped to 158 degrees fahrenheit.
Journey Beard is an active member of
REMEMBER ... INSURANCE COMPANIES MAKE THEIR PROFITS BY COLLECTING PREMIUMS, NOT PAYING CLAIMS!
GENERAL RULES TO FOLLOW WHEN INVOLVED IN AN ACCIDENT
1. DO NOT GIVE A STATEMENT AT THE SCENE REGARDING WHAT OCCURRED, EXCEPT TO THE INVESTIGATING POLICE OFFICER.
2. OBTAIN THE NAMES, ADDRESSES, AND TELEPHONE NUMBERS OF ALL WITNESSES.
3. DO NOT MOVE YOUR VEHICLE IF IT IS A SERIOUS ACCIDENT.
4. NOTICE WHETHER THERE ARE SKID MARKS PRESENT. IF SO, INFORM THE OFFICER. Talk with your attorney about taking photos ASAP.
5. NOTICE WHETHER ANY NEWS MEDIA ARE PRESENT AT THE SCENE. If so, write down the name of the news reporting agency.
6. TAKE PHOTOGRAPHS OF YOUR DAMAGED VEHICLE.
7. DO NOT GIVE STATEMENTS TO THE OPPOSING INSURANCE COMPANY, EITHER IN WRITING OR OVER THE PHONE.
8. CONTACT YOUR INSURANCE COMPANY TO NOTIFY THEM OF THE ACCIDENT, EVEN IF YOU WERE NOT AT FAULT.
9. KEEP AN ACCURATE RECORD OF ALL MEDICAL TREATMENT, LOST WAGES, AND OTHER LOSSES RESULTING FROM THE ACCIDENT.
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