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  • The Beauty and Dangers of Autumn
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    The splendor and majesty of Autumn are both totally indescribable to me.  Autumn has a way of sparking a nostalgia of being a kid playing until dark which happens much earlier now and drinking warm drinks and roasting marsh-mellows.  Who remembers leaf raking into a pile and jumping into those leaves, or the smell of the neighbor burning fire wood and a warm bowl of soup while observing the bluest of skies peppered with trees whose leaves display multi-colors against nature’s pallet?  Autumn’s crisp chill can spark endless romance as lovers take long walks and relish the last of mild temperatures before the long chill of Winter arrives.

    Then there’s the perfect night attending high school or college football games under the clear blue skies with the sound of the marching band in the background and a warm cocoa in hand, your heart pulsates to the rhythm of the drums  as you enjoy wearing that perfect sweater and boots made for just this type of occasion.  Now after totally romanticizing Autumn in this fashion, it is important we understand the hazards this beautiful time of year brings to us.  I know a personal injury attorney should wish for more accidents but I want you all to be safe and enjoy this time of year.  Below are some hazards I want to caution you about that can impact your driving during this time of year:

    1. Falling leaves- leaves are changing colors and are falling on the roadways and when they become wet with either dew or rain, these leaves create very slick driving conditions;
    2. A tremendously bright sun- I am sure there is a scientist out there with an explanation as to why the sun appears to be so much brighter during the Autumn and Winter months.  I personally don’t have that scientific explanation but I can tell you the sun is really bright during this time of year and if you do not wear the right type of sunglasses; you will rear end someone;
    3. Frozen condensation- especially early in the mornings, the roads are slightly wet and the temps are colder so leave a little earlier for work and drive a little slower than normal;
    4. Distracted driving- not going to even speak about texting but it is perfectly normal to get caught up in the beauty of the surroundings and to lose focus for a second.  It only takes a second of distracted driving to cause an accident; and
    5. Cold Rains- we all know that roadways are most dangerous when condensation begins and oils are fresh on the roadways.
    The easy solution to these additional hazards is being aware of the hazards.  Keep those hazards in mind and please slow down your car and leave home with plenty enough time to make it to work or your appointments.  If you do not take my advice now, you could end up receiving a summons to answer to a lawsuit I have filed against you for injuries in a collision you have caused.  Let’s not have that happen; enjoy Autumn’s greatness but exercise extreme cautions.
    KDV

     

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  • What is Judicial Diversion?
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    Often, I am asked by friends, family members, or clients: “what is diversion?” So in case any of my readers have that question burning in their minds, this blog should sufficiently answer the question. I will illustrate with the following story.

    So you get fresh and clean and head out for a Friday night of excitement and adventure.  You meet up with friends and have dinner; watch a movie, and then head to the “club” for a night and morning of dancing your heart out.  You’re minding your own business when someone spills their drink on your date on the dance-floor.  Your date pretends not to be offended but something on the inside of you is boiling about this time because the drunk on the dance floor has not even offered an apology for his ignorance.  You are trying to calm down but the Patron shots have made you a bit braver than normal and you decide to confront the drunken idiot on the dance floor.

    Words get said; the drunk doesn’t listen; and somehow or another your fist is attacked by the face of the drunk and the dance-floor comes up to break the drunk’s fall and swaddle the drunk like the baby Jesus wrapped in the manger.  Here comes the law and they get the statements of witnesses and the witnesses say how wonderful of a stand up person you are; however, you are arrested and now a prosecution against you has commenced.  This is the first time you have ever been in trouble.

    Well when you get to court, you find out that either your attorney has asked for or the district attorney has offered diversion in the matter and the attorney rightfully tells you this is a great deal because there are 4 eye witnesses to your fist gracefully putting the drunk to sleep while the D.J. spun the lullaby.   Or sometimes, the district attorney will not be amenable to such a disposition and it is up to the judge.  If this is the case, the judge will have to weigh some factors to determine if you are a good candidate or not for judicial diversion.

    Judicial diversion is a process set up within the Tennessee Code Annotated which will allow for the judge to withhold entering a judgment in the case until the defendant (you) has met the conditions of a probationary period.  After set probationary period and if you have kept your temper in check and not committed any further crimes whatsoever; the bad night at the club can be erased from your history forever and the case will be dismissed against you.  However, there are some criteria you must meet: for instance, you basically could not have been in trouble and the analysis is a little more complicated than that but I don’t want this to turn boring.  So just stay out of any kind of trouble.  Next, your lack of criminal history has to be verified through the Tennessee Bureau of Investigations.

    The judge has some factors the judge has to weigh and again without boring you I will keep them simple.  The factors are as follows:

    1. Your amenability to correction- this is the first thing the judge gets a gauge for because if you are not going to obey orders, probation and diversion are a waste of time;
    2. The circumstances of the offence you committed- as long as the events surrounding the crime are significantly heinous, you will be a good candidate for diversion;
    3. Your criminal record-again this needs to be a clean record;
    4. Your social history- your community involvement with good influences versus bad influences in a strong factor;
    5. Your physical and mental health- there may be an extreme illness or mental defect of some type which prompted you to wild out on the dance floor;
    6. The deterrence value to you and to others- will this be a lesson learned for you and others in the court room at the time of your hearings; and
    7. Whether judicial diversion will serve the ends of justice; the interests of the public as well as you- my guess is this a good catch all, most judges I’ve appeared before have glossed quickly over this factor.
    These are called the Electroplating and Parker factors; State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn. Crim. App. 1998) and State v. Parker, 932 S.W.2d 945 (Tenn. Crim. App. 1996). 
    So if the judge feels like these factor weigh more in your favor than they do against you, the judge will grant you diversion and issue a stern warning not to violate your diversion.  If you catch a new charge, not only could your diversion be in jeopardy, so could your freedom.  I hope this was both entertaining and informative.  Please keep checking back for additional information.
    KDV
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  • What to do if injured in a car accident or wreck
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    Accidents are inevitable.  They happen to the best and worst of drivers.  Misfortune never discriminates and statistically, never takes a day off.  You can be driving along and out of nowhere, someone hits you from the front, side, or rear.  This is a fact of life and statistically speaking, everyone will be involved in at least one accident in their life-time.  We always hope and pray no one is hurt as we rubberneck past the scene of an accident potentially causing the next serious of unfortunate events.  However, serious bodily injury is the result of many accidents and the public in general needs a little good information as to what to do immediately after a wreck or an injury.  I am going to bullet point some pieces of advice:

    1. Seek medical attention immediately (This is not the time to worry about where the money is going to come from or deductibles or any financial mess);
    2. Follow the doctor’s or physician assistant’s advice to the exact letter.  If the doctor says to stay off of work for two weeks, by all means follow the advice;
    3. Follow all recommended follow up therapy sessions and take good note of what the therapist says about your healing and prognosis;
    4. Speak to an attorney as soon as possible so that he or she can gather the specific facts of your case as soon as possible;
    5. Alert your attorney of all possible witnesses and police reports made contemporaneous to the accident.

    Lastly, whatever advice your attorney gives you moving forward, please follow the attorneys advice to the letter as well.  People have a tendency to want to go and talk to others who have been in an accident and act on their advice.  These folks are usually well intentioned but they are not legally trained and everyone’s case is different so what worked for one may not work for the other.  Well one more thing, get better, get active, and back behind the wheel.

     

     

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  • Starting the Attorney/Client Relationship Correctly
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    I wanted to take a moment and tell clients what their own attorneys wish they could say.  Now, I’m not one for mixing words whereas it comes to my clients so I will be just as professional yet as blunt as I can be about this.  Fellow attorneys reading this blog, you all can thank me later.  I promise you will enjoy reading this post as much as I enjoyed writing it.

    Ok, so you are facing a legal challenge and you visit with an attorney.  Now, I have been there before so I know the mind-set of someone facing a legal issue whether it is civil or criminal.  The typical client is seeking solid, direct, matter of fact answers concerning their situation at the time.  The attorney asks you a set of questions to try and gain more understanding into the matter.  You pretty much dump truck everything that has been on your mind as a client to the attorney and the attorney is sitting there trying to sift through what is legally relevant about your conversation and that which has no significance.

    Meanwhile, because you are the person in the midst of the raging legal storm, your objectivity is severely skewed and so is your hearing for the most part.  The attorney begins to speak to you about your situation and your listening becomes very selective at the point where you only hear the beneficial parts of the conversation and somewhere lost are all of the attorneys warning of issues which could negatively impact your outcome.  The attorney will mention previous cases that may not be in your favor; then the fact the attorney has only heard one side of the events; and every good attorney cautions their client about the unpredictability of judges.  I know in my interviews with clients, I share 30% hope and 70% caution with my clients concerning their issue.

    Further, the only guarantees I give are that I will fight very hard to get the judge to favor their side and that I will conduct myself within the bounds of the Professional Rules of Responsibility.  Other lawyers can attest to doing the same.  However, clients leave the office hearing they are going to win by a landslide and the other side is going to be severely demolished by the Sword of the Lord.  The reality is your lawyer, although you are viewing he/her in a super cape at the time, in working with the same set of facts and law the other side is working with.  If the facts or law do not favor or support your position, your lawyer is in for an uphill battle and it becomes the lawyer’s job to attempt to mitigate whatever damage you may have caused.  Now, you may be on the other side of this issue and the law and facts favor your side; however, sometimes it may just not be fair to give you everything and the other side nothing.  These instances occur regularly in family or custody court.

    Somewhere through the course of litigation, you become extremely agitated because everything is not going your way and all of a sudden you are viewing your lawyer in a different light.  Nothing has changed from the first interview except for your perception of the litigation.  Then things go totally sideways between you and your attorney.  I have a few tips I am going to bullet point for you.  If you follow these tips, you should rarely get into these sideways issues with your attorney.  Here are the tips:

    1. Write out an outline of your problem before visiting your attorney to help you stay focused and on track
    2. Speak slowly when speaking and even ask the attorney if he/she understands the points you are making
    3. When the attorney begins to answer your questions, write down notes on the answer in the margin of your outline
    4. When the attorney has given you the advice, ask he/she for 5 minutes to review your notes before making a decision to hire the attorney
    5. If you are still unsure after this 5 minute period, by all means go sleep on it before making this decision. Your problem is still going to be there the next day.
    6. Once you return or once you hire the attorney, follow every piece of advice the attorney gives and by all means call or email the attorney if you feel as though you are getting ready to make a questionable decision

    Now, these tips should also help with dealing with the other professionals in your life as well; the doctors, mechanics, accountants, and counselors.  I hope this post has been beneficial for both clients and the attorneys reading as well.  Remember, listen and hear everything and every piece of advice.  Your best outcome will come because of a great working relationship between you and your attorney.

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  • Fiduciary Part II
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    As promised, I will be continuing to blog about the role and responsibility of a fiduciary.  In the last blog, my advice was geared more to the personal fiduciary and the most common situation as to when a fiduciary is needed.  This can be as the result of a properly executed power of attorney or a judicially declared conservatorship.  In any event, the responsibility of the fiduciary is to show and exhibit the utmost care and trust over the property and purse of the person whose property or purse you have been entrusted.

    Some of you reading may have a professional responsibility as a fiduciary.  You may be a trustee, lawyer, or an accountant and in this case, your responsibility is not only to maintain but also to grow the bounty you are entrusted with through frugal investments.  However, the majority reading will be dealing with this on a personal level.  I want to re-emphasize the importance of great record keeping through this process.

    If you are ever called upon in court to answer for your accounting, the more detailed your record keeping, the less likely you will appear to have committed any type of malfeasance.  I’m not saying expenditures will not be challenged but there is a presumption in your favor you are doing things correctly when the books are opened, detailed, and very neat.  I would suggest taking advantage of great home accounting software and if you are the power of attorney or conservator for someone, set them up an individual account and allow the software to help you keep track of the income and expenses.  The software reports will also aid you in preparing the necessary reports for the courts that are needed per statute.

    The bottom line is when you are a fiduciary in any capacity, you have a strict obligation to care for someone else’s stuff better than you do your own.  Also, you need to take all the necessary safeguards to assure yourself and the courts you are acting in a responsible manner.  From a practitioner’s standpoint, the suits for breach of fiduciary duty always kind of break my heart in a way because the majority of the ones I deal with are between family members.  The reason it breaks my heart is because family should look after each other and not allow slothfulness or greed to enter into the picture and create havoc on relationships.  As always, if you have specific questions about compliance with your fiduciary duty, please pick up the phone and give us a call at the Vaughan Firm.  We would love to assist you by answering some questions and getting you back on track.

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Page & Vaughan, PLLC
245 E New St, Suite 203
Kingsport, Tennessee 37660
(423) 390-1504

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