JCOHS Lawyers and Attorneys

The Basics of International Service of Process

The purpose of this note is to present you arguments to convince you and invite you to employ us for service of Judicial or Extra Judicial documents, Commercial or Civil in the Jurisdictions of Europe. I intent hereto give enough legal and logical arguments about our “Hybrid System”.

International Personal Service of Process (IPSOP) is one of the services of Joseph A. de LA CUETARA, in practice, an International law Attorney providing litigation support services, as well as regular legal services on the European Union. Our services are: Service of Process, taking depositions or evidence, Legal Videographers, Collections, Judgment recovery or enforcing, Legal Research, Exequatur, Inter cultural negotiations (ADR-Mediation, Transactions, Conciliations and Arbitration), briefly, all those aspects of international private relations on the different Hague Conventions. We are registered and insured Attorneys at law, having physical offices in Spain and France and by the virtues of the treaty of Rome, creating the European Union, our legal practice is authorized in all of the European Union’s Jurisdictions.

There are two main methods to choose from when serving documents on the European Union, both methods, are proposed by the Hague Convention of 1965 and have the same legal value, no hierarchy exist between them, but one is less reliable than the other, the legal effects are basically the same. We propose a third method, a mixture of the above which we call “Hybrid”. Any other methods employed are outside the Hague Convention or irregular.

The basic legal methods of the Hague Convention are the following;

One, a public service of the “Judicial Administration” called “Centralized Authority” because it uses the “Government” to transmit documents. Is is intergovernmental, in principle a free service but submitted to economical constrains with high possibilities of no completion.

 

Two, by the use of a service provider, alternative method, called “decentralized”, it can use an “International private process server”, “Mail” or “Local Bailiffs”; All under the Hague Convention regulations, Art. 10. It’s applicability varies with the country’s opposition. As a Private method, it is paid, and therefore submitted to market and quality control.

International Service of Process, by either method, is ruled by two different legal systems, linked by the treaty of the Hague. The main law, called « Lex Fori, » is the law where the documents are issue and where judgment takes place, “Lex fori forum”. These rules, govern service of process validity and recognition in the “lex fori forum”, but not necessarily its effects and legality in the jurisdiction where documents where served, “Lex loci”. Recognition and enforcement by the “Lex loci forum” depend on the respect for internal laws of civil procedure and the procedure of “exequatur” It is then to each “lex fori” and their “foum” to determine their requirements for an “acceptable service” but being their powers limited in space they can not enforce it abroad, so necessarily need to keep in mind that: The act of notification is completed under a different legal system with different exigences, those of a sovereign state which must be taken in consideration, based on International treaties and for future enforcement.

Based on International Legal Principles, we can affirm that a “Lex fori forum” can not accept in a procedure a “foreign illegal procedural actuation”, an act that violates foreign laws.Oon the other hand the “Lex Loci forum” will not enforce a judgment obtained under these circumstances in. Because of this, you must act in harmony with local codes of procedure and the Hague Convention and not only with your own laws,.or, your liability will be engaged in a Criminal or Civil manner.

The Centralized method seems to be the most appropriate and reliable, but it is not, is not mandatory nor exclusive, as explained by the Hague Convention itself (visit the Department of State’s1 web pages for more information). Therefore the “Central Authority” is not the only organ proposed as available to serve documents abroad as is the general believe or as promoted by many translation companies or unscrupulous servers who have created a :”Vox Populi” that takes advantage of ignorance of the treaty, to sell Translations and Apostilles.

Luckily for the legal profession, there are a series of alternatives or decentralized channels, Art. 10 a,b and c of the Convention, often more reliable and always faster and efficient. The method to employ must be in no conflict with the laws of Civil Procedure of both jurisdictions involved and both must be signatory countries as explained in Art. 5,b.: That is a legal harmony of “Lex fori” and “Lex loci”. These laws must be applied simultaneously when serving.

All signatory countries have accepted the “Centralized” method and not all accept all the channels of the the “decentralized method”. In Europe most countries accept both entirely. The reason is that most people believe that the alternate decentralized method does nor exist. The legal text are not interpreted or applied properly as it ends as a “Fraud to International law” and service is Void or Voidable.

The liberty of method is inspired by “International Civil Procedural Liberty” Convention, as expected by the Hague of 1954 giving flexibility to the Convention of 1965. The evolution of both and their application and Interpretation by jurisprudence has given a positive empiric result. Mondialisation of process, which needed a fast way for Judicial information exchange and judgment that adapts to it. World trade, has opened the door to more efficient and fast ways of litigation and serving process, resulting in a gain of time and money by cutting “Red Tape”. Nonetheless, there are limits to this liberty that trensform into critics to the methods and which are based on the need to eliminate some absurds requirements like the risky exam of legality prior to service or the choice given to defendant to refuse service if documents are not translated and the lacunae such as no distinction between service to Individuals or Multinational Companies, Nonresistance of presumptions and many more will see later..

The Hague Convention’s Centralized method has, as said many “legal lacunae” or serious defects:, the main one is that is a free governmental service that does not uses a “fast Independent Private Process Server.”, as is requested by many courts and litigants, it is defective and often deceptive method. It promotes the use costly translation and the contents of summons is exam for legality before they can be served. These requirements makes it slow and therefore not adapted to modern international litigation. It is also contradictory because under the veil of gratuity there are a series of unnecessary expenses that result in an expensive service, more that using private channels. I consider it promotes unnecessary translations because, if documents are not translated, the defendant can refuse service and in other cases the central authority will not be able to exam their legality, Article 5..

It is advisable not to have the documents translated unless you do it properly with the right qualified professional. As a preventive measure, if you do a translation to avoid “possible” future problems, the translation itself can be easily “questioned” in court during enforcement because European courts only accept as valid translations from tindividuals that give the necessary legal guarantees, either by Certification and/or Registration. Is is considered that only those listed each year by the different Courts or the Foreign Affairs Ministries. do reliable translations. There are other “glitches” that appear at the home Jurisdiction but these can be kept at home.

On the other hand, an essential defect of using the Centralized, is the requirement of an exact address of defendant. A problem, because there is no possibility of “locating a defendant” or “Skip tracing” The Central Authority does not “searches” for Individuals or Corporations. If a defendant changes address or the address is not correct , if he is a tourist or illegal, service is paralyzed and returned, waisting your time and money, sending you back to square one while court time is running. Interesting to mention is the situation of corporations which can change the address of the registered headquarters and do not have an immediate obligation to notify this changes to the Mercantile registry. The central authority will not pay tfor any expenses such as access to a mercantile regustry.

Another defect, is in the requirement for “Personal Private Service”, concept that is understood in different ways in different countries: Bailiffs or Local Judicial Officers apply the local Code of Civil Procedure and not the special instructions received from foreign jurisdictions.

In practice, what is understood in Common law as “Personal” is understood in Europe as “Substitute” and the problem increases if we distinguish between service to corporations from service to individuals. When servicing corporations, this must be completed in the person of those individuals who have the power to represent the corporation, that is to say the “officers” publicly listed in the mercantile registry. Therefore service to the front desk, secretary, gardener or any employee of a corporation, is “Substitute service”. For individuals, most local laws allow officers to leave documents at the address specified or leave a note in the door as equivalent of service. These officers, do not need to understand the hierarchy of the Hague Convention in this sense and what are the “Lex fori Forums” needs . Instructions for service to the central authority, transform into let’s do it our legal which is not necessarily valid on the other jurisdiction.

Remark therefore, that the use of “insistence and perseverance” is not possible by the “Centralized method”, its efficiency is not good and it is only, by the use of a private personal server that you can achive the best results, have more legal security on service and what is the most relevant, you will be courteous to your adversary and sure of your case.

These above reasons explain why most Common Law Attorneys have used as many many “tricks” as possible or patches to remove these obstacles of the “Central” method, I do not blame them. Sometimes by the use of “an agent” which often is, their local process server, their friendly “tacky” translation company or their neighborhood’s Private Investigators. The reality is, that on the long run, not only they have waisted time and money but they are liable of fraud to international law, defamation, Ilegal practice of law,Revelation of Secrets… and to complete the apocalypse, if not prosecuted or challenged, the judgment obtained will not pass “Exequatur”.(Enforcement).

No doubt then, that ignoring European laws, rights of image and privacy amongst other can happen and can have undesired consequences. Jurisprudence has considered that services completed this ways as irregular and have engage the liability of the plaintiff.

The “Lex fori forum” and “Plaintiff’s Attorney” are obliged ex-lege to respect the lex-loci or the legal requirements of the jurisdiction where documents will be served and these starts at home with confidentiality, secrecy and a proper translation of documents as the basic right of defendant.

Service of Process must protect the defendant abroad. It is my understanding that “Lex fori” process servers, Non Certified Translations Companies, even with offices in Europe and other intruders in the chain of International litigation can severely contaminate a case.

There are, a series of channels in an “alternatives or decentralized method” , more reliable and with more efficient ways to serve, these are replacing the anachronistic central method.

Centralized Service of Process has the following characteristics:

Translations, High Cost and Unnecessary

Service Speed: Slow and can paralize eassily

Prior Exam of legality Slows down

Contradictions and exact Address required

Non Personal Service, No Courtesy and No Confidentiality

 

 

The Hague’s Alternative method of International Service of Process

The Alternative method is composed by channels , using them has the same legal value and effects as the “Centralized” method, if the country of “Lex Loci” has presented no express opposition to them,.there is no hierarchy between “Centralized” and “Decentralized” methods.

Art. 10 a, Service by a Currier, UPS, Fedex, DHL, Postal, fax, internet (email or messenger), as confirmed by different jurisprudence are not reliable, even if they are contemplated and accepted in some countries. The reason is that they lack of “legal guarantees of delivery of contents” violating the Principle of Contradiction,and Equality in a fair Judgement. These channels can bring the defendant into “defenseless”. Therefore they are mostly considered by jurisprudence as “evidence of an address” more than evidence of a Legal Notification. The Hague Convention permits these in Article 10, but they require some logical complements to be “Legally binding” even if the Convention does not indicates those. Indeed, one can serve blanc pages by mail or fax since nobody will check the contents and thereto obtain a judgment by default. Because of this, I recommend a “Certification of Contents” necessary either on the sending Jurisdictions or in the receiving Jurisdiction by a qualified, but done by a qualified professional that has “Public trust” The postal of fax receipt are not an affidavit.

Understand that the objective of service of process abroad is transmitting information, a legal notification to a defendant, inform him of a “cause” in which he is part and which could have serious consequences in his patrimony, rights and obligations as they will in your own jurisdiction.

These rights must be respected and protected by the rules of the legal art in order to avoid Arbitrary application of law and fraud to International law. To avoid this, the Hague Convention canalizes these notifications by taking in consideration internal laws Art. 5 but without providing a way to control it or a procedure for appeal..It imposes the protection of defendant’s rights and obligations as well as those of the plaintiff but does not says exactly how this could be materialized. Please determine, not if the notification was done but if it was “properly done. Service by mail, fax or email are very fragile channels that must be avoided..

These alternate channels are symbol of the “Liberty of Transmittal” but have enter into excesses, for exqample the email, reason why the decentralized method, has been wrongly understood by many Common law Attorneys,. Translators and Private Agents. This happened because the “mechanism of service” applied and employed has been the “known one” the one that sound logical, unconsciously applied in violation of foreign laws. Professionals have use what they know, as a reflex, they have used the same manners as for their state notifications and have sent abroad a joke. This has resulted, in failure to enforce, impossibility of judgment recovery or simply a challenged of service. A distinction must be made between a banal Service of Process and an International Service of Process and to honor international justice even if the effects of your judgment will remain in your jurisdiction do that international service properly, is just a matter of International legal courtesy.

The philosophy behind and the rational explanation, is that the concept of “Public trust” is very different to each culture and their legal order. Think about that opposite to Europe,- No Governmental Identification Card exist in common law countries, there is no central land and/or property registry, sometimes Notaries are simple individuals, Process Server and/or Translators have minimal requirements. In old and experienced Europe, everything is “suspicious” and therefore surrounded by the maximum guarantees of legal security enforced by the state at “Felony or Criminal level” to avoid any possible “misunderstanding”, “fraud”,”deviation” or “Abuse”.

In Europe. service of process, either for internal purposes, European Purposes or for International foreign courts, is considered as a penetration of “Jurisdictional Power”, when completed it is actually a “delegation of powers” to the server. In Europe. the monopoly of legal representation, actuation and consultation, has been given, traditionally and since middle ages, to the different “Legal Corporations”. Private agents are excluded of these basic requirements.

The legal professional associations are those of “Huissiers de Justice”,”Procuradores”, “Ufficiali Judiciario”,”Abogados”,”Avocats”,”Advogados”…. Unlike common law countries where almost anyone mentaly capable can perform these “legal contents and jurisdictional acts”. Please, know that only qualified legal professionals can serve properly and legally in most of Europe since are the only professionals, who can offer “Ex-lege” the required and necessary legal guarantees. Service by a “Agent” as known in common law does not exist in Europe nor in the Hague Convention, it has been used but this usage does not rises service by agents to a legal stage.

Logically explained: If any country’s laws of Civil Procedure establishes for internal service of process, a procedure that requires guarantees of public trust; given only by the use qualified professionals, how come, for International Service, you can expect to use anyone? An agent? In conclusion: When in Rome, do as the Romans!

We must distinguish between communications to the Central authority or with the Server and notification or service of process to the defendant. One is an organ and the other a defendant. Communication with the Central Authority of to the server can be by any means, even e-mail

Also note that the Hague Convention obliges service of process to have two explicit and implicit

requirements for acceptance: voluntarily and knowingly. These can be compared to a “bilateral obligation in Civil Law” (See Article 5 (b) alinea of the Hague Convention). Therefore, if the defendant

is not ”capable to understand” what he is receiving, service is viced and the “Defendant can refuse

service”. If documents are not translated he is not “capable to understand”. The defendant is not sense to know foreign laws or could be economically challenged, but some presumption exist: If the defendant is not served multilingual Attorney at law and advise at the moment of Service or if the documents contain No Legal Notice and etceteras, the defendant is in “Procedural defenseless”.and therefore service of process is not valid and useless.

Service to Corporations doing International Business, those under the Hague of 1956 for “Company recognition” it must be presumed that they speak the language of the Jurisdiction in which the carry business and know their laws. The Hague Convention does not distinguishes between services according to defendant; Individual or Corporations. Therefore, I consider the Hague as placing an obstacle in service to corporations, since the plaintiff is oblige to translate the documents. Logically Corporations should never use the central authority, they do not need it.

The Hague Convention indicates “voluntary acceptance” as a condition of service, this does not mean “Refusal at all times and systematically to get civil or commercial impunity”. In this sense, service by Certified Mail, email, fax and other unilateral acts of service, which we can be consider as “Adherence” from defendant to service, have the common denominator that the defendant is not accepting voluntarily, since he is receiving something with unknown contents. The contents will discover later and he is accepting first, therefore contradicting the Hague convention confirming this way that these channels as good for a verification of an address but not of service.

In conclusion, Certified Mail, email and fax are not proper ways of serving and a Court accepting this kind of service are refusing rights to the defendant except if they are back up by a qualified professional’s Affidavit of service.

“Service by Agent” as understood in common law, is not contemplated in the Hague Convention on Service of Process, it is another automatic reflex and has been used by many common law Attorneys. These agent services have required translations of documents because the Agent used, in most cases speaks the language of the Attorney requiring service. Often he is a foreign national in the country of service, sometimes illegal, but in any case not qualify to do this kind of Job. They provide “Shaky” services based on the fact that they speaks the language of the Attorney requiring service and dare to violate all kinds of laws, anyways most of them have nothing to loose..

These “Merchants of Process serving” use translations to increase profit and to reduce the possibility of future challenge of service. In most European countries, it is considered. that “Legal Guarantees”, are only given to, and are given by ”registered and insured professionals, recognized and controlled by the governments and grouped in special associations or corporations submitted to strict ethics control: These agents are an insult to law and order. The law and confirmed Jurisprudence protects “defendant’s rights” against poor « qualities and qualifications » of a “dummy server” or anyone from here or there, an intruder, who for a “fist full of dollars” will issue an affidavit. Therefore service by “Agent” is possible if and only if the Agent to be used is a qualified legal professional in the country of service.

It is a interesting anecdote, that I found an “International service of process company in Spain” that also does “plumbing” services from the same office, a business run by a felon issuing affidavits even to service completed to non existing address or people he never saw..

It is a shame that Justices and Attorneys in North America often, accept, for international service of process, affidavits of persons that do not offer any guarantees or have the essential “Public trust”, looking down and with disrespect the rights of defendants and the laws of procedure of a foreign country. Indeed, employing anyone for international service of process, is a disregard on justice and disrespect for International and local law. To serve properly you must respect foreign laws of procedure! You must understand the European concepts involved in a “Procedural Notification” and respect for “Justice”.

Finally, art. 10 c, considers as “Agent” a Judicial officer or bailiff. Service by these agent depend on the kind of person to served: Physical or Juridical. In some jurisdictions, serving a corporation must be to a “Registered Officer” as it appears on the mercantile registry of their country or to their legal department or representative and the place of service has to be the registered headquarters otherwise it will be a substitute service (Individuals or Corporations can be served at their Attorney’s office). If Individuals, an agent can served them at their home or place of work., but not in a public place.

One excess of the Hague Convention is the requirement for an exact address for service, meaning that the requester must have the exact information. This requirement reduces the rights of the plaintiff since a qualified legal professional acting as agent can complete service to two addresses to avoid impunity of defendants, that is to say, serve the address in the writ of summons and the legal or present address.

Service can be completed by directly instructing a Judicial officer of a Bailiff, article 10 c of the Convention, employing them as organ and as server, but they will issue am “Act” or document in the official language of the country, you will have to pay for a supplent for translation into English language and eventually the legalization of signature. Our Hydrid service take’s care of everything.

Please remember, the principle in Europe is the “Protection of the rights and obligations of litigants” by due diligence completed with integrity and by qualified and reliable professional not an “affidavit” obtained in obscure circumstances at any judicial cause price or at justice expense.

Summarizing: The two main methods both have the same legal value within the Hague Convention and no “Hierarchy”exist amongst them, one is bad and the other is worse, they are equally poor, but combining them is possible and results into a more reliable international service:

WARNING: Translations and Apostilles (Legalizations) are not necessary but if you use them remember that the Translator must be “Certified” by the “Foreign Affairs department” or the “Local Appellate or Superior Court”. The use of a local Notary Public to certify the signature in a translation does not corrects the errors of “tacky” translations. The use of a non registered “Attorneys at Law” under most jurisdictions of the European Union for acts reserved to the legal profession causes “contamination of your case”, engaging your liability: Protecting the rights of litigants is your obligation. Do not use simply anyone willing to issue a statement of service affidavit if not qualified.

 

Inventing International Service of Process: The Hybrid system

 

Our “Hybrid system of international personal private service of process” combines, not only “methods”, but also the different channels or options of the convention, applied by steps and in less time that the “centralized”. The result is a better service that takes the positive side of each method in order to obtain the best legal guarantees: We consider it as “System” , more than a method, please consult us so we can discuss your case service in detail and how our system applies.

The hybrid system for International Service of Process, heals the disadvantages of the Hague Conference’s centralized method and the abuses in the use and application of the decentralized alternate method. It is a non complicated service of process having the characteristics of Legality, reliability and fast. On the other hand, the “system” applies the principles of the Hague Convention combined to each jurisdiction, incoming and outgoing, and their respective laws of procedure. The “legal order” is to obtain with the maximum legality and protection of litigants, its main characteristic is that: Service is double, a preliminary International service and an Euro service.

The system provides that the rights of the plaintiff and defendants are guarantee and protected by registered and insured multilingual Attorneys at Law in the country of service. Documents are delivered personally in all confidentiality by a legal professional who will give advise in the language of the defendant, making it comprehensive by giving complete legal notice and explaining how to proceed. All services are completed with mandatory secrecy and neutrality, Courtesy and professionalism under the respect for internal laws of Civil procedure.

The defendant does not have an option to refuse service, or claim to be “unprotected” there is no “a priori” exam of contents or delay, no translation’s cost or apostilles, no promises of service but a “Jurisdictional act completed according to local law by a qualified legal professional”, Note the advantages;

a. The defendant does not have an option to refuse service, or claim to be “unprotected”

b. Liberty to choose process server within the legal profession market value.

c. There is no “a priori” exam of contents or delay in exams

d. No translation’s cost Nor apostilles, stapples,stamps or clips!

e. No doubt on delivery of Contents

e. Service with “Professional Integrity”

f. Customer service and Affidavit in English

g. Une of Bailiff when required

h. Service is guaranteed in delivery

i. Service is guaranteed in court

…..and much more

 

 

Our price list, reflect the need of taking in consideration many legal and practical aspects of service in Europe, specially to avoid incidents and possible cchallenge, appellate “quash” proceeding”, we provide services that are cheaper than the “Centralized” method and with the same value.

 

The different classes of service we proposed vary according to the required time for service: Urgent, and each has different protections. We always start by a “Skip Trace or Locate” in order to obtain an exact address as per mandatory requirement of the Hague Convention and to avoid you unnecessary expenses, then we mail a preliminary service of process to verify the address of delivery and physical existence. Our letter, asking for an appointment or an interview and placing ourselves as neutral Attorneys at Law available as required by law to avoid defenseless by counseling the defendant. During the interview, in presence of a local Judicial Officer or Bailiff when required, we verify the identity of the receiver, his knowledge of the language in which documents are written and explain in detail their rights and obligations. All of this procedure is condensed in a Custom made affidavit that is legalized by the Notary Public of the diplomatic representation of the lex fori (That is to say: the Consul)..

We hope we will count with you amongst our clients, please visit our website for forms, and do not hesitate to contact us by telephone, from U.S. dial 011 33 4 93 16 27 38 or by email if you have any questions or need written legal advise.

Thanking you in advance for your time and consideration, I am,

Joseph A. de LA CUETARA

http://servefast.eu/

 

 

 

 

1Please note that the U.S. Department of State website misguides persons requiring service of process abroad The U.S. Consulates are prohibited from serving or recommending Servers or Attorneys , therefore the list of Attorneys they maintain in each city has “obscure” origins..

 



By: Joe CUETARA

About the Author:

Driving under the influence, or DUI, is the law that prohibits driving a motor vehicle while intoxicated and a San Diego DUI defense lawyer can help you in such cases. In many states a person is charged with DUI when he is found driving with a blood alcohol concentration over .08% or .10 %, this representing the blood alcohol concentration (BAC), the percentage of alcohol in a person’s bloodstream. In most places a BAC limit is set under which people can legally drive motor vehicles, therefore, a driver’s BAC is used to determine guilt in cases of driving under the influence in which a San Diego DUI defense lawyer is the person to contact. A San Diego DUI defense lawyer is a resource for the accused to counter the influence of extremist groups advocating unfair laws, the destruction of constitutional rights and a new era of prohibition.

Often the decision to arrest depends upon the performance on the field sobriety tests (balance and coordination) and also the driving pattern (weaving, speeding or an accident, etc.). An officer can in fact arrest for simply being under the influence of alcohol or drugs with no reference to your blood alcohol level at all!

If the person charged with DUI is having a hard time finding a San Diego DUI defense lawyer, then he can immediately call 1-800-DUI-laws and a San Diego DUI defense lawyer will be provided to him in no time. If the person doesn’t like his San Diego DUI defense lawyer then he can contact DUI laws directly at 818-884-8075 and another attorney will be found for him. The person will not be charged to speak to a San Diego DUI defense lawyer about his case as the initial consultation charge is absolutely free.

For more resources regarding drunk driving lawyer or even about drunk driving chart and especially about San Diego DUI attorney please review these pages.



By: Groshan Fabiola

About the Author:

There are too many people who believe they can muddle their way through a court system on their own after they’ve been arrested for suspicion of DUI. Some believe that a blood alcohol test level cannot be fought in the court of law. Both of these statements are not true. Court cases are complex and you cannot go it alone; make sure you hire yourself a DUI attorney.

If you’ve never gone through the legal system, you most likely have questions. This DUI lawyer can answer any questions you may have while he/she prepares you for trial. They can help alleviate the confusion that surrounds the court process, which makes the entire process go a little more smoothly and allows your stress level to reduce. When you’ve been arrested but don’t have any idea where to begin, you need to locate a DUI lawyer who will fight for you and answer your questions.

When you’re stopped on a suspicion for DUI, whatever you do… do not answer the officer’s questions. You should also not participate in a field sobriety test or Breathalyzer test until you have spoken with a lawyer. You have every right not to respond to the officer’s questions without a lawyer present. How you act during the arrest process is important especially if you want to be acquitted of a DUI charge. Don’t do this alone.

Every state has varying DUI laws so it’s important that you find a lawyer who has experience in your arresting state. You want them to be knowledgeable about the laws related to your certain situation. They can advise you on what course of action you need to take and ways to support your case. Whether or not you’re guilty, an experienced and smart DUI attorney will scrutinize the tests, trying to find flaws in them and state those findings… all in the hopes to dismiss the charges or bring you an acquittal. The legal counsel you hire should be aware of any and all strategies for a DUI case.

Many people are under the assumption that when prosecutorial evidence is strong against them, they have no chance of getting the charges dismissed or getting an acquittal even with having an experienced criminal defense attorney by their side. Don’t believe it for one second. Your lawyer can work alongside the judge to lessen the amount of your sentence; perhaps he can reinstate your driving privileges or convert your jail time sentence to community service and/or probation.  If you choose not to go to trial, your attorney can assist you in lowering the penalties that can stem from the no-contest or guilty plea.

If you’re convicted of a DUI, it can have devastating, long-term consequences that will affect your life for many years. What you pay to your attorney is nothing when you consider the real costs behind a DUI. When you choose to defend yourself, you will be unable to give yourself adequate representation because you won’t know the ins and outs like experienced lawyers do. Get yourself experienced, worthwhile legal representation for your DUI case.



By: Colin Daives

About the Author:

Life is full of unexpected twists and turns, and often you will find that you were going through the daily grind of your life without any hassles and suddenly you come across an event that can turn your life completely upside down. An accident is such an event which may completely change the course of your life and the stark reality of it is that you can do nothing to avert such a situation. An accident can change many things; and you may probably have to tend to that person if he happens to be a close family member of friend. If the injury sustained by the person is of a serious nature, you will need lots of money, care and tons of prayers to cure the person. The situation may at times become such that you may end up feeling that only prayers can save the person.

However if the injury has been caused due to the negligence of any other individual, organization or any other entity you can take the help of a NY personal injury lawyer to help the victim seeking compensation. Injuries take a lot of time to heal and if it is a serious injury, the victim will require all the more time to recover from it. It goes without saying that lots of money will be required to treat the person and that is the reason why you must seek the services of a NY personal injury lawyer to get the required amount of money. The injured person and his family and friends will be deeply distressed by the happening, so the lawyer must make sure that he helps them out with his legal expertise. There are many legal nuances involved in getting the compensation money and only a legal expert can help you out in this.

A NY personal injury lawyer has years of experience in handling such legal cases, you must leave it to their efficient hand to handle the case for you. You may be having lots of doubts about the whole process and probably you may also think that the whole process is very lengthy. These are some common doubts that crop up in the mind of any person who wants to seek compensation for the injury victim and only an efficient lawyer will help in clearing all these doubts. The NY personal injury lawyer will help the family of the victim in making and drafting all the paperwork that will be required for seeking compensation from the person or organization.

There are certain things in life that cannot be averted at any cost. They are supposed to happen and even if we take the best precaution in the world, it will happen. So perhaps what we can do is stay aware of all the things that can be done if at all we are faced with such an eventuality. We must know that seeking the services of a NY personal injury lawyer can actually help in taking care of many things after the accident. All we can do is just stay prepared to face any situation at any time.



By: Hadiya Robins

About the Author:

My typical day begins something like this, “Hi, I got arrested for a DWI last night?” and my response is usually, “let me ask you a few questions first to help give you some guidance and direction.”  The reason for my first couple of questions is to tell me exactly what “type” of DWI case we are dealing with.

DWIs like people come in different shapes, sizes, and packages. DWIs can be:

 

1. With or without a traffic stop, ie. maybe the police were called to the scene to investigate an accident, or a person asleep behind the wheel, or a BOLO (be on the lookout) for an erratic driver, called in from a tip

2. With or without a breath test (the chemical test back at the police station or barracks)

3. With or without prior DWIs or DUIs or DWAIs or ADWIs

4. With or without a New York State Driver’s License

5.  With or without a Sobriety Check Point

By no means is this list complete. There are many different DWI situations and combinations.

The Chemical Test Refusal DWI Case is unique for a number of reasons. 

First the positives of the refusal case:

1. The police and prosecution do not have a breath test BAC to prove their case.

2. They can not charge VTL 1192 (2) BAC .08 or > or VTL 1192 (2) (a) Aggravated DWI BAC .18 or >.

3. The prosecutor can only charge VTL 1192 (3), “Common Law” DWI. 

4. The prosecutor usually only has one main witness, the arresting officer. 

5. The prosecutor must prove that “you were mentally and physically incapable ( to a substantial extent) of operating an automobile as a reasonably prudent driver.” 

6. They must prove this legal burden of “intoxication” beyond a reasonable doubt based upon the police officer’s observations, and field testing, if any.

7. They can not use the Preliminary Breath Test results (at roadside) to prove their case.

8. The DWI defense lawyer can cross examine the police officer at the DMV administrative hearing without the presence of the prosecutor.

9. The cross examination can cover the stop, the arrest, and the field testing.

Second, the two main negatives of the refusal case:

1. You will have NO license of any type (conditional or hardship) while your criminal case is pending. NOTE: unless you win at the administrative refusal hearing (unlikely) or the officer does not show for the hearing and it is re-scheduled.

2. The jury will get an instruction from the Judge that they may infer a Consciousness of Guilt from your choice to not take the chemical test.

Personally, I like Refusal cases because they offer opportunities to challenge the purely opinion evidence of intoxication. The opinion of the officer is an opinion based in bias. He or she will want to support their decision to stop and arrest you. Their instructing, demonstrating, and evaluating you on the Field Sobriety Tests or (Roadside Agility Maneuvers) can usually be shown to be unfair. If we can show you were coherent (understood the officer’s directions, instructions, questions) then providing other reasons for your bloodshot eyes, slurred speech (or impairment), and lack of balance create REASONABLE DOUBT in the minds of the jury as to your intoxication.

 



By: DWI Defense Lawyer Larry Newman

About the Author:

Divorce is one of the most unpleasant experiences that one may have to come across in their life. However, at times there may be a situation when a couple decides that going separate ways is the best option for them. Getting a divorce is something that becomes necessary when the situation spirals out of control, so instead of being together and being bitter about each other, couples decide to legally separate by getting a divorce. Taking the decision, whether you want to get a divorce from your spouse, can be a very difficult decision and it is here that you can turn to your family and friends for help and advice. However, once you have decided that you want a divorce from your spouse, a divorce lawyer New York is the best person who can help you out. Since you will have to get separated legally, only a legal professional, like a divorce lawyer can assist you in this.

There are many things which need to be settled between a couple before the court will grant them permission to legally separate from each other. If there are children involved in this, then the matter can get a little complicated, but this can also be solved with the help of an efficient and effective Divorce lawyer New York

. Divorce lawyers are trained legal representatives and they just know what things need to be done and what has to be taken care of, in case a couple decides to divorce. You can tell your divorce lawyer what all things you want him to do for you; he can also help you in dividing up any assets that you may be jointly holding with your spouse. You must tell him clearly what you want to do with your kids, if you would like to get their custody or if you would like your spouse to have the custody.

These are some of the things that you need to settle out with your lawyer so that he has a strong base for arguing your case with the judge. If a spouse agrees, the divorce lawyer can help them in getting an out-of-court settlement without wasting any time. But you must remember that both you and your spouse must agree for this and only then this can be done. Talk to the divorce lawyer beforehand and decide on the fees that you will have to pay. It is better for you, if you make all these things clear before you hire his services for getting a divorce from your spouse.

Some of the divorce lawyers are very expensive, so it will be better for you if you do a little background study about the existing market rates. This will help you decide, if your lawyer is charging you exorbitantly or if his rates are just fine, so make sure that you do this before hiring the services of the divorce lawyer. The internet is the best way through which you can find out the best divorce lawyers operating in your city; you can also use the local yellow pages to find out information about the lawyers.



By: damey

About the Author:

Get Education on Your Rights -Read and Know Before You Do Anything.

Hire a Qualified and Licensed Attorney for Your Loan Modification

The last 5 years is nothing but violations of all kinds of laws including TILA, RESPA and HOEPA by all kinds of lenders including the big lenders. My bad list of lenders include Countrywide, WAMU, and of course Citi. City has already eaten up 40 billion of federal money, and is still teetering on the brinks of a disaster. They are also at the same most arrogant and unhelpful lenders. Most of the foreclosure mess is created by these bankers, including of course many small bankers. They over qualified people who could not handle the burden of loan. These folks should not have been home buyers in the first place. The example, I give quite often is of my son is 10 years old and is in 5th grade. I give him one dollar every day for his allowance. Imagine if I start giving him instead $100 every day for his pocket allowance. It would spoil him in less than one month and show him how to be financially irresponsible. It is another thing if I open a saving account and put $100 in his account every day. Of course that would be a fantastic idea for his college education and bright future.

There is No More Waiting Required— You Waited Long Enough.

The foreclosure process is designed so that you have time to get back on your feet and save your home. But that doesn’t mean it’s safe to procrastinate. The longer you wait, the harder it gets to get you out of that fix. As soon as you decide you need mortgage help, call for a loan modification help and get started.

Who Else But a Qualified Attorney?

Your lenders policies have hurt you too much. Your broker (former) and loan officer along with mortgage bankers and all the other allied people have hurt you much. IN fact, this foreclosure fiasco was caused originally by combination of all these folks and their unlimited greed. Don’t let them continue this game. We all are hurt by this collective deceptive practice. So let us work together and stop it.

Don’t file for bankruptcy, unless you really have to.

Filing bankruptcy is not a solution; at the most it would delay the process. In some cases, it would jeopardize your loan modification process. Remember Automatic Stay under bankruptcy and then affirmation of debts. They are time consuming things. You lose the leverage and deterrence of bankruptcy to use in your loan modification. I never file bankruptcy before loan modification. In fact, in my law office, I keep them separate and never unify them. Because of the knowledge of bankruptcy, foreclosure, and loan modification: an attorney can be uniquely qualified to cover all these areas and knowledge of all these areas, would be very helpful. Just don’t file bankruptcy at the very outset. It may give some time but it is not the solution. Also, please don’t file bankruptcy just for your home loan unless you have lots of unsecured debts

Do Have Any Alternative Plan.

Why Do Lenders Prefer Loan Mod Over Foreclosure?

-Loan Modification is a temporary help. Get qualified for this. There is nothing to be embarrassing in all this issue. Lots of these things had happened out of our control.

-Your lenders are still difficult to work with; they have built fireballs around which you have to cross.  The secret is that by doing loan modification they are helping themselves. On a cost benefit analysis, they lose more money in a foreclosure. It saves money, and this is a time tested factor that lenders save money on loan modification and lose money in foreclosure.

Let us analyze the situation here in greater details.

Loan modification is cheaper. They deal with one borrower only and not a plethora of people like default agency, governmental agencies, and the auctioneer and furthermore a new person in the entity who is stills an unknown commodity. A loan modification takes place in 30 or 60 days while the foreclosure process is long and it has its statutory limitations. The paperwork is less in loan modification compared with foreclosure process. In foreclosure, your lender will assess all kinds of late payments, expenses and attorney fees, and of course a repair for the home to make it at least presentable. All these add up in the cost to lender. Your lender is tired of foreclosing home. They have a high list of REO properties, and no one is buying them. A loan modification process can slow down your foreclosure process but it is not a safe guarantee against the foreclosure. However, as long as borrower is talking, communicating with their lenders, they would not or at least hesitate to send their home to the auction block. Ideally speaking, don’t sit and wait for this time to come. Do something now. It is the time. It is your home. Find someone who is professionally qualified to help you. It is your local attorney who has a local office, easy to find and communicate and licensed in the State of Nevada.

1. Put everything on paper. It’s not uncommon for lenders, especially smaller ones, to lose track of your application. To prevent delays, make sure all your efforts are documented and kept on file. This includes all the calls you make and receive, both from your lender and loan modification attorney. Keep receipts of all your transactions, and make copies so you don’t have to let go of the originals.

2. Do your own financial statements. Part of every home loan modification is a financial worksheet, which will be your main basis for qualification. Most lenders have their own forms, but it won’t hurt to make your own as well. If your lender insists on using their worksheet, at least you’ll have all the information ready.

3. Be as detailed as possible. Too much information is better than too little, and it limits the chances that they’ll call you for more information. A typical worksheet for a mortgage home work modification will include the following:

-Your contact information (address, home phone and work phone, fax and email) -Information about your property, including the estimated value -Your current income -Any additional income, such as welfare, child support, etc. -Your estimated total value, including other assets such as real estate, savings and checking accounts, IRAs, 401(k), stocks and bonds.

-Liabilities, such as existing loans monthly bills, medical expenses, and tax liens

4. Keep all your bills. Keep track of all of your bills in a methodical order. Make sure you write down your grocery bill, your utilities, including water, power, gas, and trash charges. Now, add on your monthly bill of HOA, any other community charges, your insurance charges, your child support, and other alimony issues or legal expenses. Possibly, a positive cash statements would be an ideal one to work with banks.

 



By: Malik Ahmad Attorney at law

About the Author:

It’s a Friday night, you’ve worked hard all week and stop to meet friends for drinks and dinner, sure seems like a good idea to wash away some of the weeks problems and it is once you are there.

Sounds like a great idea, you have a real good time talking with friends, eating good food and having several drinks. When you are ready to leave after an enjoyable night you feel more relaxed than you have all week.

On the drive home the California Highway Patrol are behind your vehicle, nothing unusual about that until their lights go on and you are being pulled over. The driving offense you have committed is driving under the influence in West L.A., your given a field sobriety test and then arrested. After which you are asked to submit to a chemical test, this can be a blood, breath or urine test that will give the content of alcohol in your bloodstream. When this is found it will tell the court how far over the legal limit you were while operating a motor vehicle and that may affect what type of sentence they impose.

This is when you know you will need a good attorney, one who knows the laws about driving under the influence offenses. This attorney should know the different consequences that can affect the rest of a person charged with driving under the influence, they should know what steps to take when it comes to a DMV hearing and they need to be informed about all the reasons why some of these chemical tests that are given are not always accurate.

A skilled DUI attorney in Los Angeles can tell you that the chemical tests that are given such as a breath test are not accurate because they may not be calibrated correctly, they may not be read correctly and there are other circumstances that can make this test read higher than it should. There are also other factors that can make these tests read incorrectly and only an attorney who has educated themselves will understand this and use what they know when they are preparing a driving under the influence case.

For a few hours out with friends you are facing losing your drivers license, being faced with fines, classes, community service and possibly losing your driving privilege, it could even result in the loss of your employment. This is why you need the most skilled DUI attorney to represent you in court and with DMV.



By: Michael Ehline

About the Author:

Whether you’re a business owner or a regular old Joe needing the assistance of a tax attorney, you need to be ready to invest some time into finding the one that’s right for you. Tax attorneys not only have special training, but good tax attorneys also have extensive experience interacting and negotiating with IRS auditors. The job of an IRS auditor is to get as much money as legally possible from you so that the government can have it. They are relentless and often intimidating, so if you find yourself the subject of an audit, you should immediately find an advocate in the form of a tax attorney. Here are five steps to getting the best tax attorney to work for you.

1. Find a tax attorney with experience. Find out what kind of formal education she has and what kinds of certifications she has. How long has she been a tax attorney? Another important factor to research is whether or not she has worked for the IRS in the past. Former IRS agents are invaluable as tax attorneys, and if you have the opportunity to hire one to represent you, you should take advantage of it. Tax attorneys who have worked for other financial authorities are also valuable, so if you can’t find a former IRS agent to work for you, find someone who has worked for another large financial authority.

2. Find a tax attorney with quality education. The minimum degree that your tax attorney should have is the LLM in taxation (Master’s of Law in Taxation). This is evidence that the attorney completed at least one year of study in tax law. Ideally, you should find a tax attorney who not only has an LLM, but who is also committed to continuing education in the field of tax law. This is critical since tax laws change regularly. One way to find out whether a tax attorney is well-versed in tax law is to conduct an internet search for articles about tax law that this person might have published. This is an indicator that the tax attorney is potentially an authority in the area of tax law.

3. Find a tax attorney that specializes in the issue you’re facing. When you interview a potential tax attorney, tell him your unique situation and ask him if he has ever handled a similar situation. While the attorney is prohibited from sharing identifying details about other clients, engage him in a conversation that provides ample evidence for you to determine whether or not he has enough experience with your type of situation to help you effectively.

4. Find a tax attorney who is a skilled communicator. Part of a tax attorney’s job is to negotiate with the IRS agent on your behalf. This means that the attorney needs to return phone calls promptly and conduct himself in a professional manner. He should be clear and articulate, and should be able to discuss your particular case in terms that you can understand. If your potential attorney has difficulty expressing himself or doesn’t communicate with you in a prompt and professional manner, move on to the next candidate.

5. Find several attorneys from which to choose. When you’re on the hunt for a qualified tax attorney, don’t put all of your eggs in one basket. Get several different recommendations from friends and family members, or from other business owners who have been audited in the past. Part of managing an audit is timeliness, so if your first choice of attorney doesn’t pan out, you don’t have time to start a new search from scratch. You should already have a list of three or four and be ready to pursue interviews if your first few aren’t going to be able to do a good job for you.

Choose your tax attorney wisely and you’ll be pleased with the results!



By: Seomul Evans

About the Author:

“He who is his own lawyer has a fool for a client.”  — ancient proverb

Going against the IRS without a tax lawyer is like riding buck naked in a motocross race, you probably won’t win and if you crash, the results could be fatal.

As a tax resolution specialist for the past 10+ years, I have my obvious bias. At TRS, we are a team of highly specialized tax resolution experts including  tax attorneys , CPAs, EAs (enrolled agent tax experts) and others who have been providing income tax help for a combined 150 years of experience. We have helped provide IRS tax relief for people who have tax problems with back taxes, late filing, tax fraud, theft (from Madoff and other Ponzi schemes) and more. We have seen the substantial tax relief success our team can bring. We’ve also seen the disasters that strike those who dare to go solo.

Those who decide to fight the IRS by themselves may be motivated by misinformation. Tax resolution complaints are on the rise, as are outright tax resolution scams (official looking IRS snail mail or email that not only steal your identity but also tricks some victims into writing big checks to the “tax resolution firm”). Tin foil hat conspiracy theorists claim that the whole tax resolution industry is nothing but a giant tax relief scam. They say the IRS works for you, the people, and the IRS has your best interests at heart.  You can beat an IRS audit, they say, with the free tax help the IRS provides. If you believe that, I’ve got a bridge in Brooklyn I’d like to sell you.

So with all those caveats aside, if you are bound and determined to fight the law without a safety net, here are a few tips.

Remember that free tax help that the IRS provides?  You get what you pay for here. There’s the IRS Taxpayer Advocate Service: www.irs.gov/advocate/index.html. They won’t help you in an audit except to tell you who your auditor is and how it is progressing. If you think you’ve been treated unfairly by the IRS, these are the folks you complain to. Remember that these bureaucrats say they are on your side, but ultimately the government writes their paychecks. They have no real economic incentive to make sure you win. A tax lawyer does.

The IRS web site is a mess when it comes to finding tips on how to survive an audit. The best publication to get you started is IRS Publication 556: www.irs.gov/pub/irs-pdf/p556.pdf. If you feel confused by this IRS document, you’re not alone. Making sense of “IRS help documents” is what keeps tax attorneys in business. Tax lawyers can drastically change the tax resolution you get from your IRS audit.

You can find a lot of advice on how to survive an IRS audit online.  Nolo.com has a very good (if slightly flawed) taxes and audit section Here you’ll get solid tax advice like:

Don’t answer unless asked. Give the auditor no more information than she is entitled to, and don’t talk any more during the audit than is absolutely necessary. Don’t give copies of other years’ tax returns to the auditor. In fact, don’t bring to an audit any documents that do not pertain to the year under audit, or were not specifically requested by the audit notice.

Know your rights. Browse IRS Publication 1, explaining the Taxpayers’ Bill of Rights, prior to your audit. If the audit is not going well, demand a recess to consult a tax pro. Ask to speak to the auditor’s manager if you think the auditor is treating you unfairly. If the subject of tax fraud comes up during an audit, don’t try to handle it yourself.

Appeal the results. When you get the examination report, call the auditor if you don’t understand or agree with it. Meet with her or her manager to see if you can reach a compromise. If you can’t live with an audit result, you may appeal within the IRS or go on to tax court.

Roy Lewis at  Motley Fool likens going into an IRS audit without a tax lawyer to “removing your own appendix,” but he offers a few nuggets of IRS advice including:



Organize your records. Making the auditor’s job easier will win you some points. The auditor will at least believe that you’re an organized person and that all of your items are documented and justified. Don’t be afraid to group the items in question, or attach an adding-machine tape that matches the tax return. That will allow the auditor to quickly review the important issues. Don’t believe those who tell you that you can just throw your records in a bag, drop it on the auditor’s desk, and shout, “You figure it out!” That just doesn’t work. Remember, it’s your legal responsibility to prove your deductions.



Replace missing records. If you’re going through your records and find that some of them are missing, call for duplicates immediately. Don’t just go to the audit and claim that the records are missing or lost. That does you no good at all. At best, the auditor will request that you obtain the records. At worst, the deduction in question will be denied, since there are no supporting documents.



Provide only copies. Don’t bring original documents to the audit. If you do bring originals, do not give them to the agent. Request that the agent make copies and give the originals back to you. Once you hand over your original documents, there’s a very good chance that they will be misplaced or lost. Then you’re the one left holding the bag, since the IRS isn’t responsible for documents lost in its possession.

The most detailed IRS audit advice comes from CFPs and CPAs. For example in this article (http://www.unclefed.com/AuthorsRow/GretaHicks/audit.html) Greta P. Hicks, CPA offers a detailed approach on how to prepare for the four types of audits the IRS performs.

Even Microsoft has better advice for businesses on surviving an audit than the IRS does.

Bottom line, when you battle the IRS who do you want in your corner? Someone (you) who is facing the IRS for the first time, or someone who has been winning against them for decades?

If a layman attempts to go through this process without proper expert representation, their Offer in Compromise will not only get rejected but they will end up owing the IRS more money (in additional accruing penalties and interest) than when they started the process. Remember that the IRS is the most brutal collection agency on the planet.

At TRS, we encourage our clients to do themselves and their loved ones a favor by exercising their right to have expert representation before the IRS. From our 150 plus years of combined experience, we know that waiting only makes matters worse. Once we are retained by a client, we take over all communication with the IRS.

The cash you “save” by not hiring a reputable tax attorney may be the most expensive money in your life. And you may have a long time to consider the cost of going it alone as you write big checks to the government for the rest of your life or worse yet, repenting at leisure while you’re pumping your biceps in the prison yard. It’s your call.



By: Michael Rozbruch

About the Author: