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Common Legal Questions
You may have questions when your future is at risk. We've
collected a number of topics of interest and common questions
with general answers and information that may be of use. In order
to be more detailed, some of this information is specific to our
experience.
Please note that
this formation is not legal advice and does not
create an attorney-client relationship. You should always consult
an attorney for individual advice pertaining to your current or past
situation.
General Topics
DWI & Criminal
Law
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300
Central
Avenue
SW
Albuquerque, NM 87102-3298
phone:
(505)
244-0450
email:
office@samorelaw.com
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John
F.M.
Samore
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Copyright
2009-2011,
John
F.
M.
Samore
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Six Common Mistakes in Picking an
Attorney
These are six common
mistakes that I
see people making when selecting an attorney. Consider them in
your
own situation when seeking legal help.
1. FALLING FOR THE BIG TALKER
It is easy to make
promises, whether
you are selling a car or selling a lawyer. Be alert to any
attorney
who keeps assuring you how tough he will be on the other party, who
brags how experienced he is in certain kinds of cases, who won't admit
disappointments and defeats, or who seems to think your case is a sure
winner. No case is a "sure winner." All cases have
strong points and
also vulnerable ones. Good results are the consequence of hard
work.
No lawyer knows before he is immersed into the evidence how good or not
so good a case may be. You deserve someone who is direct enough
to
tell you that any litigation has some uncertainties which can only be
addressed as the information is received.
2. NOT CONFIRMING
WHICH ATTORNEY WILL ACTUALLY BE HANDLING YOUR CASE
Many firms have named
senior partners,
who have considerable experience and reputation, and associate
attorneys, who work for the firm. The senior lawyers will often be the
ones you meet at your first conference and will be quite convincing as
to how hard the firm will work on your behalf.
The problem is that, once
you have
signed the contract, the senior attorney will too often pass your case
along later to a younger (and much less experienced) junior or
associate attorney while assuring you that he or she (the senior layer)
will keep an eye on your case. Do not be misled. Do you
want to pay
for experience and proven reputation - or pay for a young lawyer's
education at your expense?
Find out before you even
get hustled at
the first interview exactly which lawyer will be assigned to your
case. Ask who will be returning your calls; who will be
answering
your questions, who will assist you in preparing for testimony, who
will come to the office on a weekend when you cannot make it during the
week.
At our firm, we make a
special effort
to keep our caseload specialized enough that Mr, Samore can return all
your calls (almost always within eight business hours) and that he will
be the one with whom you are working throughout your case.
3. EXPECTING ONE ATTORNEY TO HANDLE ALL YOUR AFFAIRS
You may have relied on a
capable lawyer
to handle your business or family affairs for many years. Now,
you or
a loved one, is faced with a divorce or child custody matter or
criminal allegations. Because it is important to know the people
and
the special courts,you need someone practices only in these areas.
Give us a call. If someone calls us to write a will or set up a
small
corporation or file a personal injury lawsuit, we shall always refer
that kind of case to attorneys whom we respect, who can do outstanding
jobs for folks with those problems. And we know that we are one
of the
"go-to" firms when it comes to divorce, child custody, or criminal
defense matters.
4. MAKING PRICE YOUR CONCERN INSTEAD OF GETTING
HONEST ESTIMATES
Everyone wants "value" or
bang for your
buck. But we also want it done right the first time. Too
many lawyers
follow an old adage "Don't quote a price; get them through the
door."
They like to give you a low-ball estimate that they know is
unreasonable, just to get you to their office so you will sign a
contract. Sadly, many lawyers will keep billing you for
additional
charges and pretend that they were unexpected.
Our firm has been working in this field almost thirty years; we do not
have to deceive you to get you through the door. Over ninety
percent
of our new cases come from other attorneys or former clients referring
them to us. We are understandably proud of those referrals.
We do not
send out letters, buy big advertising, or prowl the jails or Chamber of
Commerce to scare up new clients.
We want you to want us to represent you and your loved ones. We
shall
give you an honest estimate of the kind of legal expenses you are
facing right up front. No pressure. As all these referrals
attest,
people have come to respect us for this honesty. We hope you
will. too.
5. THINKING THAT ADVERTISEMENTS MEANS
COMPETENCE
Advertising simply is a way
of getting
noticed. It means "look at me." A lot of very good law
firms market
their skills because they want to be recognized when folks are looking
for legal assistance. Good lawyers understandably do not want to
be
forgotten in the glut of legal advertising that is found of radio,
television, mail, and the internet. Most of it doesn't matter
much in
the final decision.
We all want at least a "presence." Even this website is a form of
advertising. Make advertising just a part of your overall
evaluation
of whom you want to handle your precious affairs,but don't forget to
use a lot of other factors and especially your common sense.
6. TOO EASILY BEING IMPRESSED BY FANCY OFFICES
It is nice to go to a
pleasant office
setting. Some lawyers invest in rather lavish surroundings in
another
effort to impress you. Be sensible. Someone is certainly
paying for
that lavish office, but are you more likely to get better legal
assistance because the offices are so fancy? Whatever the office
space, it is only a small part of the decision process for you.
Balance the factors that really matter to you and trust yourself to
make the best decision for you.
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Does it make a difference whether I am
charged in
federal or state courts?
It certainly does.
While divorces and child custody cases are
always conducted in state court. Criminal cases can be filed in
federal court or state court, even for the same acts, because of what
the courts call "concurrent jurisdiction." Just because you are
charged one court does not mean that a another court could later charge
you as well. This is true even for acts arising from one incident.
Among many differences, in federal court you have no option to plead
"no contest" to a charge. If a person does not plead "guilty," he
cannot have the benefit of a negotiated plea agreement and is going to
trial. This difference is discussed later in this section under
Plea Agreements.
The penalties are usually somewhat different under federal law, usually
more severe and with less room to try and resolve the conflicts short
of a trial. Be sure to share all your concerns with Mr. Samore so
you are not surprised as your case develops.
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Do Judges play favorites or have bias?
Before they were appointed
to this important position, Judges were just
lawyers like the rest of us. They are always human beings, and
all
human beings are prone to like certain persons more than others.
Judges are supposed to do their level best to remain impartial and be
fair to both sides. Sometimes, this can be very difficult.
Here is what we tell our clients: Judges are very biased against
people who are not truthful. Judges (and juries) tend to deal
rather
harshly with people who swear to tell the truth and, then, do
not. We
emphasize to all our clients the huge importance of being honest with
the court.
We also emphasize the importance of being honest with Mr. Samore.
We
would rather know the bad, the weaknesses, the flaws in you case first,
and deal with those problems in a positive way then be surprised at a
trial or hearing.
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If I've done something wrong, can I be
found Not Guilty?
Few things in an attorney’s
life give him more joy than to have
criminal charges dismissed or hear the blessed words “not guilty” from
a jury. Unfortunately, the truth is that many prosecutions result
in a guilty plea of some sort; most the time, the charges are greatly
reduced. Whether in federal or state court,
we shall thoroughly review and protect your rights, if convicted, to be
sentenced fairly. The judges will know every fact in your favor.
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Can you have my charges dismissed?
We have found our clients
very much appreciate being treated as adults
and treated honestly in these important matters. It is very
important
to us that we both get off to a good start together. We will
always provide an honest assessment about the risks or
weaknesses in your case and how much it is likely to cost. You
will receive a realistic appraisal of your case and what can be
achieved through the legal system. You won't get an
unrealistically upbeat, misleading appraisal just to get you to sign up
with our office.
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How do appeals work?
The vast majority of
accused citizens wind up being convicted of at least some charge.
If by guilty plea, the right to appeal is usually waived. If you
are convicted at a trial, you have the right to appeal, and our office
has had notable successes on major criminal appeals.
As far back
as 1983, the Eighth Circuit Court reversed the first conviction under
the racketeering law (RICO) in that region due to Mr. Samore’s Brief on
Appeal, based upon improper voir dire jury selection. In 2008,
Mr. Samore’s diligent trial record led to reversal of a murder
conviction, which preserved the violation of the right to confront
opposing witnesses.
In 2009, after an innocent man had been
convicted and was serving a 25-year sentence for sex abuse of his
daughter, our office won the first reversal in 40 years on the grounds
that the trial court was “clearly erroneous” when it admitted a
statement he was alleged to have made to FBI officers.
If you believe you have
been wrongfully convicted, you know you will
get solid representation on appeal here. Even if another attorney
did the trial, we can do the appeal. If our trial effort does not
result in acquittal, we can continue representation and present your
appeal vigorously to the higher court.
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What is the difference between a
felony and a misdemeanor?
The simplest distinction is
that
a felony means that a state charge subjects the person found guilty to
at least one year in prison. A misdemeanor conviction risks
up to 364
days in state jail. Both of these penalties can include fines and
probation. In federal court, this distinction is much the same,
although federal courts no longer use the term "probation" but
substitute "supervised release" instead. Many convictions do not
require the defendant to go to jail at all, and he or she serves an
extended time period when they must comply with conditions of release,
whether or not it is called probation or supervised release.
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I have a judge who I hear is
very tough on defendants. Can I change judges?
If you are in a very early
stage
of your case in state court, New Mexico has a very unique provision
that may permit you to exercise the right to excuse the assigned judge
and get another judge. Before you do so, you should consult a
knowledgeable attorney to see how the process of re-assignment works
and whether you might be worse off, instead of better. In federal
court
(and 49 other state courts), no such right exists. You are stuck
with
the judge you get, so you better prepare to make the most of it.
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How long will my divorce case take?
The length of a divorce
case varies greatly, depending on how much property, debt, and how to
handle minor children. Many other factors develop from those two,
and the personalities of the clients and the attorneys is of major
influence. Some lawyers like to stir things up and promise their
client that they will destroy the other person, but that is very
unlikely. We do not try to frighten our clients and encourage a
realistic approach. In family courts, the judges usually
try to balance the result and divide the assets and debts equally.
The problem is that each
side may have very different views as to what is fair and
balanced. And, if try the case we must, we will eagerly do so,
because this attorney loves the excitement of a trial. For the
participants, however, a trial is such a gut-wrenching experience, we
encourage they consider trying to work out at least some of their
differences with their former spouse.
Some of the more
complicated divorces take several years to complete, and each of the
judges in Bernalillo County, for example, have been assigned about 1500
cases. For this reason primarily, most cases settle before trial,
but, to get to the point where parties can compromise, they have to
exchange a lot of information and go through hearings on particular
aspects of the dispute. If they cannot agree and want to go to
trial, they may have a wait of many months just to get a judge or
hearing officer to listen to the arguments.
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How does a court determine if I get
alimony or have to pay alimony?
The law sets out about
twelve factors for the courts to consider in deciding whether an award
of alimony or spousal support is appropriate. While the terms are
often used interchangeably, alimony and spousal support are different
concepts, and the merit of each side's position depends on how facts
are developed. Judges vary greatly in how they interpret these
factors, so you should have an attorney who understands these issues
can present your case most effectively.
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What is the role of hearing officers
used by family courts?
Because of the enormous
number of cases judges in some districts have waiting to be heard,
courts use "hearing officers," "special commissioners," or similarly
termed positions. Some judges have dockets (schedules) that carry
well over 1,000 cases and many believe it better to have an independent
third person help move the case along and give the parties a notion as
to how their dispute will play out. It is hoped this extra step
actually gives the parties more information to settle their case and
save them the huge cost of a trial.
These people are always
trained lawyers but are not technically qualified as "judges."
They are permitted to hear each side to a dispute and make findings
that are reviewed by the judge assigned to the case.Each side has an
opportunity to object to any or all of the findings that the hearing
officer makes. That review will occur before the judge when each
side gets to tell the judge why they differ with the hearing officer's
findings. Only after the second hearing (or if there are no
objections filed by either party) does the hearing officer's findings
become final.
The hearing officer usually
does not hear all of the case, usually just some aspect of the
dispute. for example, in a child custody dispute, the officer
will conduct a hearing on temporary primary placement of the
child(ren) and award temporary child support be paid. The idea is
to get the case moving forward so there are not quite so many issues
awaiting the judge if the case finally comes to trial.
Having these kinds of
hearings also give the parties a chance to see how an impartial third
party looks at the conflicts and how the other person actually performs
under examination. There is also a chance to test the evidence
under oath in this setting and courts can also appoint independent
third persons to assist the judge in taking evidence on certain aspects
of the case.
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What are "facilitators" and how are
they used?
Facilitators are trained
attorneys appointed by the judge or agreed upon by the representing
attorneys to hear about the disputes in an informal setting and try to
compromise on differences. Usually the facilitator is paid his or
her usual hourly rate to work with the parties in a law office around a
table, talking to each person and lawyer separately to try and narrow
the areas of dispute and broker a settlement of all issues.
When these sessions (usually
three or four hours long) are successful, everyone leaves with a little
less than they might have had if totally successful at trial but with a
lot less in legal expenses than if they had pursued their case through
the risk at trial. Tension and stress of awaiting a trial and
verdict is also avoided.
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How does the Court Clinic in Albuquerque work in
deciding how to handle the custody of our children?
The court clinic is an
office with about two dozen psychologists with college degrees who work
for the state out of the Bernalillo County Court House. Judges
there like to refer disputes regarding child custody at an early stage
in the proceedings. The court clinic staff are not authorized to
make findings or recommendations for the judge on matters involving
child support but are limited to helping the parties at least agree on
how to handle child custody and time-sharing while the rest of the
case (especially property and debt issues) are being worked.
If you and the other parent
cannot agree on how to handle the situation, the court clinician may be
authorized by agreement between the lawyers and the judge to make what
is called and Advisory Consultation. You will have plenty of time
to review this report and either agree or object and ask for a hearing
on your objections.
Costs for services from the
clinic are divided between the parents according to income, with the
parent making the most money usually paying more. These costs are
still a lot less than if a private psychologists were hired.
Cases filed in other counties are not able to use this office, which is
limited to the First Judicial District. These costs are in
addition to your attorney fees and other costs of litigation.
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What are the costs to get a Divorce?
The Bernalillo Country Courts
(Second Judicial District) charges $137 as a fee just for filing, and
you will also have to pay to have your spouse served with the Petition
for Dissolution of Marriage. If the spouse can be easily found in
Bernalillo County, the costs of service should be as low as $30. Each
judicial district may set its own filing fee, but this amount is
similar. If the spouse is difficult to find or lives far away,
the service cost would likely be more. You have to include these
costs at the time you retain an attorney, in addition to the attorney's
retainer fee.
As the case progresses
through litigation over time, the expenses of pursuing a just result
can increase for example, when child custody is involved, and
independent third party may be retained by agreement between the
parties to assess which particular aspects of the case and make
recommendations to the court; these are also costs you and your
spouse will have to share.
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Can I make my Ex pay for my attorney
fees?
This question usually comes
up when one person makes a lot more income than the other. For
example, the husband is disabled, or the wife has stayed home to focus
on care for the children. Most of the time, you will be expected
to come up with the retainer and filing fees, and you can seek
reimbursement at the end of the case. Judges have the authority
to allocate attorney fees incurred between the parties, but there is no
guarantee. Good attorneys do not mislead you by blustering that
they will get back all the retainer that you have paid. An honest
attorney will tell you the truth: maybe
"yes,"
and
maybe
your
share
will
be
equalized in other ways.
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I had a baby with this person, and we
never got married. Now, he won't pay child support (she
won't let me see my child). What can you do for me?
Domestic courts were set up
to help you set legal boundaries for exactly such situations. The
legal action is filed just the same as the divorce proceedings (see
other questions here), except the issues for dividing up property and
debts has different ground rules. As far as how you work out the
terms for child custody and child support, the rules are almost
identical. The costs you can expect to incur are about the same,
too.
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My Ex and I have no fighting
issues. We just want someone to draw up the papers. We have
a child, but I think we can work that out (We have no kids but worked
in the same business). Can you do it cheaply?
The truthful answer is
"No." The person asking this kind of a question is headed for
trouble. The terms of a divorce can effect you the rest of your
life. Some attorneys in the state offer divorce services for a
few dollars, but, unfortunately, working with an attorney under such
circumstances is too often disastrous. A good attorney will tell
you the truth: you want it done right the first time--and that
will save you money in the long run! You don't want very
important issues not clearly stated, so that you wind up back in court
and spend far more money trying to straighten it out. We tell you
the truth. We work with you one-on-one. We get it right the
first time.
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What is the difference between joint
custody and sole custody?
The difference is very
substantial. If you have "joint custody" of your children, you
and the other parent share equally in deciding the five major areas
(doctor, dentist, activities, school, church) and other important
matters. If one of you has sole custody, these kind of decisions
are pretty one-sided, and the other parent has little sway in what
happens.
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I would like to keep my name and this
whole thing out of the newspapers. Can you do this for me?
Only on rare occasions can
your case record be sealed, and that usually seals the substance of the
case, not the fact iit was filed. Anyone who leads you to believe
otherwise, is not being wholly truthful. In our society, the
light of day and the light of a public record is usually a better way
to ensure that the decisions are fair to both parties.
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Can I get a jury to decide my case
for custody or divorce?
No. many years ago,
these kind of cases could go before a jury, but we learned that the
incredible personal involvement that these issues raise in everyone who
hears about it make it far preferable that these decisions are made by
experienced judges who are trained to render their decisions according
to legal standards.. Even this trained impartiality can be somewhat
difficult to attain.
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My spouse says he/she will never give
me a divorce. Can they do this?
No. If you want to be
divorced, the other person cannot stop you. Just get us an
address so we can serve them with the Petition, and we'll take it from
there.
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Can I get an Annulment?
The correct answer is
almost always No." Too many lawyers and even judges have for many
years been telling people (and even signing Orders) that they can get
an Annulment on grounds that are, truth be known, not actually
available in New Mexico. Many folks are walking around today
thinking their former marriage has been annulled, when this is not
so. An annulled marriage on bogus grounds is void. If you
have further questions in this regard and have read this far, you
absolutely need an attorney -- an an attorney who understands annulment
law.
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How can John Samore help you with
your DUI/DWI case?
Mr. Samore can be very
selective with those DUI cases he takes, and has a good record of
favorable results for his clients. In the past ten years, eighty
percent (80%) were found "not guilty" or had the charges dismissed.
Although biased news coverage, public pressure groups like MADD, the
changing law and various recent legal presumptions can make it very
difficult for someone accused of DUI to get a fair trial, Mr. Samore is
agressive in the early stages of the prosecution to develop reasonable
challenges to the manner in which the driver was stopped or evidence
maintained. Many police, while well-intentioned, are so eager to
get someone arrested, they go on a simple hunch (or wait outside a bar
business) instead of waiting to develop genuine, legal grounds to stop
a car. This eagerness can form the basis for a Motion to Suppress
Evidence, in which John Samore seeks a dismissal of the prosecution
from a fair-minded judge.
Another sensible concern
is the distortions which can occur in the
way Field Sobriety Tests are administered. These "FST's" are the
physical tests that officers give drivers while they stand at the
roadside in the dark. The officers want the judge and jury to
think
physical coordination is highly relevant to whether a person can drive
safely in traffic. You need a capable lawyer that understands how
this
generous inference can be shown to be inaccurate.
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Updated 24 Apr 2011
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Disclaimer • Privacy Policy |
Information on this website is not legal advice and does not create an
attorney-client relationship.
You should always consult an attorney for individual advice pertaining
to your current or past situation.
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