Frequently Asked Questions
Injury or Death
I have just been in an accident and have been injured. What should I do?
First, seek medical attention if you are suffering from a personal injury to ensure you are treated promptly and competently. This should be your first priority, because everything you tell a healthcare provider will be written down and will later be read by everyone involved in any future personal injury claims arising from the accident. Therefore, remember these rules:
- Be accurate.
- Do not exaggerate.
- Be thorough. That is, do not skip over symptoms and do not ignore pains. (Insurance companies looking at medical records often conclude that if it’s not written down, it does not exist.)
- Follow-up with appointments. Appointments or missed appointments are often interpreted by an insurer as the patient being symptom-free.
- Do not over-treat. Make sure you are progressing and feeling better, and double check with your family doctor about the need for treatment if you find that you are not getting better.
Second, make notes to yourself as to what happened with as much detail as you can recall. It is important to be very accurate, since it may be days or weeks before you are interviewed about the events, either by an insurer or an attorney.
Third, make contact with the party who you believe is at fault for the accident. Usually you will be referred to an insurance company. They will want details of the accident and all medical and lost income information in order to evaluate whether you have a personal injury claim, and, if so, what to offer in settlement. If you are uncomfortable doing this, it may be a good time to contact an attorney experienced in personal injury claims.
Fourth, wait until your doctor has accurately diagnosed your medical condition, provided his or her views about your condition, and prescribed a recommended treatment before you seriously discuss settling a claim. We recommend talking to a personal injury attorney if you have any concerns about the reasonableness of a settlement offer.
The insurance company wants to take my statement. What should I do?
When you are injured and the person who may be at fault has insurance, it is common practice for the insurance company to do an investigation and to gather information with which to evaluate a personal injury claim. Taking statements is a routine part of that. Usually, these statements are recorded. You have nothing to be concerned about giving such a statement so long as you follow these rules:
First, before giving any statement, take time to think about what happened and recall the events in order. It is best to write down exactly what happened with as much detail as you can remember. Because you will be asked many months even years later exactly what happened, it is important that you prepare a record that will jog your memory.
Second, when you give your statement, answer only the questions that are asked. Answer truthfully, avoid guessing at things that you do not know, and do not guess at things. If you do not know or do not remember, say so. If you are talcing medication that affects your ability to remember, say so.
Third, while you are being interviewed ask for a copy of the transcript of the interview, so that you can look at it again and make any changes. Sometimes questions will be asked that you have not thought of before and it takes a little reflection before you answer. If you can review your statement and make notes on it for clarification, you get the benefit of that reflection.
What if I am hurt if a product fails or does not do what it is supposed to do?
Do not use the product again. Keep others from using it and preserve it as best as you can. Product failures present complex questions that usually require an inspection, and an evaluation by engineers and other experts in the field. It is critical that they are able to examine the product in the condition that it was at the time of the failure and/or injury occurred. On this type of claim, you will definitely need professional help from an attorney with products liability experience.
Do I need a lawyer?
Maybe. For minor injuries that heal without any permanent or long-term effects, you may be able to reach a settlement that you believe is fair without hiring a personal injury lawyer. If an insurer admits that its policyholder is at fault, you can usually negotiate a fair settlement by yourself.
However, it may be worthwhile for you to pay for an hour of an attorney’s time to get advice as to the reasonableness of a settlement offer.
If the insurer questions whether the other party is at fault or believes your injuries were either not caused by the event or are not as serious as you believe them to be, you will probably need a personal injury attorney.
For serious injuries or death, it is a good idea to hire a personal injury attorney soon after the event. Evidence will need to be preserved and an investigation conducted when the facts are fresh. This is particularly true if a truck was involved, there was an aviation accident or a product failure.
Most lawyers working for folks who are hurt do so on a contingency fee basis; that is, they will not be paid unless they can reach a settlement and then they will take a percentage of what is collected as fees. The percentage is something you can negotiate; it’s usually between 25-40 percent, depending on how complex the case is and what is at stake. In some matters, you may decide to negotiate for a fee based upon time worked at an hourly rate. However, you will have to pay that amount win or lose and probably on a monthly basis. In addition to fees, you will have to reimburse the attorney for out-of-pocket expenses, regardless of the outcome.
Will I have to go to trial?
98 percent of all personal injury claims are settled without actually going into a courtroom and presenting evidence. Nevertheless, you will probably have to give testimony under oath before trial in order for the parties involved to understand the nature of the claim, as well as evaluate injuries and losses which happen because of the injury. Sometimes personal injury claims settle without ever even having to file suit, but even that requires giving a great deal of information to an insurance company, so that it can evaluate its risks and potential losses should the matter go to trial.
How do I find a good lawyer?
Advertising and the internet have changed the way in which we find professional services. A generation ago, word of mouth was the best way to find a skilled professional. A professional in one specialty will refer patients or clients to another who has the respect of his peers. That is still a good way to go. Ask an attorney you know about the reputation of another.
Ask about experience in personal injury, whether they’ve done work for both injured people and insurance companies, how many trials they have had, what fees they charge, what’s the most recent success they’ve had, what’s the most recent loss they’ve suffered, how available are they to answer questions and how long will it take. Any other question that makes you feel comfortable with the lawyer should be asked. It is important to ask questions, because the fact is once an attorney gets a license, he or she can practice in any area without any experience. Many learn on the job, some with experienced mentors, others by trial and error.
Anyone with an advertising budget and marketing skills can put themselves out to the public as one who is accepting clients in different areas of law – from divorce to criminal defense, workers compensation, employment issues, traffic offenses, business formation or tax advice. A slick ad doesn’t qualify an attorney in the field in which he or she advertises.
The State Bar of Arizona certifies specialists in personal injury litigation. The certification means they have the respect of the judges before whom they appear, they are vetted by other qualified attorneys, including their opponents in court, and have several trials under their belt. There are more than 24,000 licensed attorneys, however perhaps 140 lawyers are certified in personal injury litigation.
Robert L. Greer is certified as a specialist in personal injury and wrongful death litigation with decades of experience in the courtroom.
What are Grounds for Divorce?
Arizona is a “no-fault” State, meaning that the only grounds necessary to obtain a divorce in Arizona is that the marriage is “irretrievably broken” with “no reasonable prospect for reconciliation.”
What is an Annulment?
In Arizona, the grounds for a legal annulment are that the marriage is null and void due to some impediment that prevented a valid marriage from ever taking place. Generally, the grounds for annulment are difficult to show except in very specific, narrow circumstances.
What are Residence Requirements?
The residency requirement is that at least one of the parties (not necessarily both) have lived in the State of Arizona for at least ninety (90) days prior to filing the divorce action. If only one of the parties lives in Arizona, and the other party has not lived here at all, the Court will be limited in what property it can divide and what orders it can enter against the non-resident spouse, but the Court can dissolve the marriage for the person who lives here.
What is Domestic Violence?
If your spouse has been physically abusive to you, you can obtain an Order of Protection from the Court before or after filing for a divorce. You do not need to also file a divorce action to obtain an Order of Protection, although they can be filed at the same time.
Who Should File?
Currently, there is no legal significance with respect to whether the husband or the wife files the Petition.
What is Conciliation Services?
Arizona offers Conciliation Services free of charge through the Court system. This process can be used by either party in an attempt to reconcile. If reconciliation is not an option, Conciliation Court will also help you and your spouse mediate child custody and visitation issues. Mediation is an attempt to get the parties to agree to custody and a parenting-time plan. Conciliation services do not discuss or mediate support or property issues, although private mediation services are available for those issues at a cost to you.
How long is the Waiting Period for a Divorce?
No divorce can be granted until at least 60 days have passed since your spouse is served with the Petition. This is a minimum period of time. Most uncontested matters are completed three to four months after service. Contested matters can take as long as 12-18 months or longer, depending on the court’s calendar.
What is Custody?
There is no legal presumption in Arizona favoring either parent for custody of the children, nor is there any legal presumption in favor of joint custody or sole custody. Each case is determined on its own merits. There are two types of joint custody, “joint legal” and “joint physical” custody. Joint legal custody typically means that one parent is the “primary residential parent” and generally has the children more of the time, subject to visitation by the other parent. Joint physical custody typically means an almost 50-50 division of the children’s time. In either type of joint custody, the parents are expected to communicate and confer regarding major decisions about the children, such as education, childcare, medical and religious decisions. The Court requires both parents to attend mediation at Court, without attorneys, to discuss the settlement of all custody and visitation disagreements before those issues can be heard by a judge.
How Does Visitation Work?
If you and your spouse can agree to the details of visitation, the court will usually approve the plan you have worked out. Visitation must state specific schedules including days and times, and must account for major holidays.
What are the Guidelines for Child Support?
Child Support Guidelines have been prepared for the State of Arizona which apportions child support based on the gross incomes of both parents. The Guidelines may be deviated from if both parties agree and if a Court determines that a deviation is in the best interests of the children.
How is Property and Debt Division Determined?
There is no fixed way to determine how you or the Court should decide how to divide your property, although our law says the division should be “equitable” and equitable almost always means equal. Other factors include whether or not property belongs to the marital community or is the sole and separate property of one of the parties. If you and your spouse agree on a division of property, the Court will usually approve your written agreement. If you cannot agree, the Court will equitably divide your property and debts.
What is an Uncontested Divorce?
Even if you and your spouse both agree you want a divorce, the divorce is only “uncontested” if you agree to every provision concerning custody, visitation, support, maintenance, and division of property and debts. If any of these matters are disputed and cannot be settled through negotiations with the attorneys, your divorce is NOT uncontested and a trial will be necessary.
What are the charges that can be considered Domestic Violence?
- Negligent Homicide
- Threatening or Intimidating
- Aggravated Assault
- Custodial interference
- Unlawful Imprisonment
- Sexual Assault
- Unlawful disclosure of images depicting state of nudity or specific sexual activities
- Criminal Trespass
- Criminal Damage
- Interfering with Judicial Proceedings
- Disorderly Conduct
- Cruelty to Animals
- Preventing use of telephone in emergency
- Use of electronic communication to terrify, intimidate, threaten or harass
- Aggravated Harassment
- Surreptitious photographing, videotaping, filming, or digitally recording or view
- Child or vulnerable adult abuse
What is Domestic Violence in Arizona?
In Arizona if you have been charged with Domestic Violence (DV) the State is required to prove that (1) there is a prerequisite relationship between the victim and the defendant and (2) that the defendant violated any one of a specific lists of criminal acts.
What is a prerequisite DV Relationship?
Arizona Revised Statue § 28-3601 sets forth the definition of the DV relationship:
- The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
- The victim and the defendant have a child in common.
- The victim or the defendant is pregnant by the other party.
- The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
- The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
- The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
(a) The type of relationship.
(b) The length of the relationship.
(c) The frequency of the interaction between the victim and the defendant.
(d) If the relationship has terminated, the length of time since the termination.
What are the consequences of a Domestic Violence conviction?
A conviction of a Domestic Violence offense in Arizona has certain consequences, some of which are mandatory. Counseling is mandatory for any Domestic Violence conviction. For felonies, a sentence of years in prison can be imposed. On misdemeanor cases, a judge can send a defendant to jail for up to 180 days. Under federal law 18 U.S.C. § 922 any person convicted of a “misdemeanor crime of domestic violence” is banned from possession of firearms. This is also true for a felony conviction of domestic violence. “Misdemeanor crime of domestic violence” is defined as any state or federal misdemeanor that –
“has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
Moreover, domestic violence can lead to years of probation.
What can be done
Body camera videos have changed the way that cases are invested and challenged. Law enforcement officer’s recollection of who said what is commonly disproven by the cameras many agencies require. Also, the validity of a victims version of events can be challenged by showing their bias and ulterior motives of wanting a conviction. Many jurisdictions have diversion programs that allow a defendant to complete a Domestic Violence Offender Treatment Program which results in dismissal of all charges when successfully completed.
If charged with a domestic violence offense, trying to resolve the matter on your own can lead to consequences that could have been avoided. Never contact the victim without court consent as that could result in additional charges. Instead, contact Keith R. Nelson for a free consultation to learn more about your rights.
Alcohol Misdemeanor DUI in Arizona
Arizona has some of the toughest laws in the United State when it comes to alcohol related driving offenses. Although Driving Under the Influence, or DUI also known as DWI, can be a misdemeanor, it has harsher mandatory penalties than most felonies. Knowing the law and having a plan before you go out for an evening on the town can help you make good decisions.
Felony vs. Misdemeanor
A felony DUI is any misdemeanor DUI with one of the following factors:
- A third DUI conviction within 84 months of the first DUI date of offense
- A passenger under the age of 15 years old is in the vehicle
- When the driver has an interlock restricted license
- When the driver’s license is suspended or revoked for any reason
What are the different types of alcohol misdemeanor DUI?
Simple DUI: If you ability to drive is impaired to the slightest degree due to alcohol consumed
Simple DUI: If your Blood Alcohol Content (BAC) is greater than .08
Extreme DUI: If your BAC is greater than .015
Super Extreme DUI: If your BAC is greater than .20
What does the State have to prove?
In order to obtain a conviction for DUI, the charging agency has to prove the following:
- That law enforcement had a legal reason to make contact with you
- That law enforcement had a legal reason to conduct a DUI investigation
- That law enforcement properly conducted the DUI investigation
- And either
a. You were impaired to the slightest degree; or
b. Your BAC was above the legal limit
What are the maximum penalties for a misdemeanor DUI?
Maximum penalty includes:
- 180 days in jail
- 5 years probation
- $2,500 fine plus surcharges (apx $5,000)
- $3,500 in other surcharges
- 1 year drivers license suspension
- 18 months Certified Interlock Ignition Driver’s License
What are the minimum penalties?
The minimum penalties depend of the quantity of Alcohol contained with your blood within two hours of driving
CHARGES DRIVER’S LICENSE MINIMUM FINES AND FEES* JAIL TIME** COMMUNITY SERVICE PROBATION DUI – BAC .08
90 Day to 1 Year Suspension $1,490 1-10 Days Possible Up to 5 Years DUI – BAC .08
1 Year Revocation $3,448 30-90 Days 30 Hours Up to 5 Years Extreme DUI
90 Day to 1 Year Suspension $2,740 30 Days Possible Up to 5 Years Extreme DUI
1 Year Revocation $3,698 120 Days 30 Hours Up to 5 Years Super Extreme DUI
90 Day to 1 Year Suspension $3,198 45 Days Possible Up to 5 Years Super Extreme DUI
1 Year Revocation $4,613 180 Days 30 Hours Up to 5 Years
What can be done to fight a DUI?
There are several things that can be done to fight a DUI charge including, but not limited to, ensuring the following:
- Law Enforcement Officer (LEO) had a valid reason to initiate contact
- LEO had Reasonable Suspicion if a traffic stop was conducted
- LEO had Reasonable Suspicion to instigate a DUI investigation
- LEO had Probable Cause to demand a blood/breath/urine sample
- All Constitutional rights are afforded and respected
- Blood/breath/urine sample was collected in a valid manner
- Blood/breath/urine sample was processed in a valid manner
- Results of blood/breath/urine sample are within degree scientific certainty of charged offense
If you have been charged with a DUI, you need to understand you rights. Please contact Keith R. Nelson to schedule a free consult.
What is bankruptcy?
Bankruptcy is a court procedure that is governed by federal law which allows consumers or businesses to catch up on debts by either discharging their debts, repaying their debts, restructuring their debts or a combination of any of the three. There are various “Chapters” of bankruptcies which provide different legal tools to assist the person filing the bankruptcy to achieve the greatest protection afforded under the law.
Will the process wipe out all of my debts?
The answer to this question depends on the facts of your case and the type of chapter you file. Some debts are not forgiven under any bankruptcy chapter. Some debts are forgiven under some chapters, but not others. Some chapters require that you pay something back to your creditors. Because this question is so fact and case specific, it is best answered by an attorney after having providing your specific financial information.
What is the difference between Chapter 7 and Chapter 13?
Chapter 7 is called “liquidation” bankruptcy because filers may lose some of their property, with some important exceptions. Chapter 7 is reserved for individuals and businesses with little or no ability to repay debts in the future. So those who file Chapter 7 may lose non-exempt assets in exchange for having most debts erased.
Chapter 13 is called “reorganization” bankruptcy because it allows consumers to reorganize their debt burdens and payment schedules. Anyone filing for Chapter 13 must also propose a repayment plan showing your income and how you will repay some of your debts. Working with the court, your plan will determine how much you need to repay, based on your income, types of debts, and the value of your property.
Which bankruptcy option will allow me to keep my property?
Each bankruptcy option will allow you to keep your most essential assets. Arizona law protects houses, cars, furniture, and retirement accounts (among other things) in bankruptcy. These laws do have limits, and, based on your specific situation, one chapter may be better than another to provide you and your property with the greatest protection.
Can I choose which type of bankruptcy to file? How do I choose the right one?
If you meet the eligibility requirements for both Chapter 7 and Chapter 13 bankruptcy, then you may choose which type to file. Otherwise, you may not have a choice. Usually, those with a choice file Chapter 7 bankruptcy, since they may be able to have all of their debts discharged (besides the debt covered by the proceeds of liquidated property). Chapter 7 also can be a much faster process than Chapter 13. However, Chapter 13 may be the best option for those who have adequate income and substantial assets. The best choice is made after consultation with an attorney.
Do I qualify to file a chapter 7 Bankruptcy?
To be eligible to file a Chapter 7 bankruptcy, your income must be less than the median household income for you household size. Otherwise, you must be able to prove that you do not have enough money to make any meaningful repayment to your creditors over the a five year period.
Do I qualify to file a Chapter 13?
To be eligible for Chapter 13, you must have an income and your debts may not exceed a certain amount (see Individual Debt Adjustment for current limits). If you don’t meet these requirements, then Chapter 13 bankruptcy is not available to you.