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Commonly Asked Questions

Criminal Defense FAQs

        Generally, there are three ways to post bond, though every county and even the different federal courts have different requirements:

        (1) you can hire a licensed bondsman to post the bond. This is essentially an insurance policy. You pay a premium to the bondsman (generally about 12% of the total bond amount) and the bondsman guarantees that entire bond will be paid if the defendant flees. The downside of this method is that you never get your 12% premium back (just like you never get your insurance premium back, even if you don’t have a car accident;

        (2) You pay the entire amount of the bond to the sheriff. If you appear at trial, you will get all the money back.

        (3) You use property as the guarantee to the sheriff that if you don’t appear at trial, you will surrender the title to your house. This procedure is different in every county. Some sheriffs require that the property be “free and clear” – meaning there is no mortgage. Other counties require that the property must be in the same county. Other counties require that the property is owned by somebody other than the defendant.

        Generally, an appeal is a vehicle for challenging a conviction at trial. In the Georgia Court of Appeals, the appeal is heard by three entirely new judges. In the Georgia Supreme Court, nine Justices hear the appeal. In federal cases tried in Georgia, Florida and Alabama, three judges in the Eleventh Circuit Court of Appeals will hear the appeal. 

        The defendant, having been found guilty, will assert in the appeal that the trial was unfair for a variety of reasons: The prosecutor was permitted to introduce evidence that was inadmissible (such as hearsay); the defense was prohibited from introducing evidence that should have been admitted; the defendant’s Fourth Amendment rights to be free from an illegal search or seizure were violated and the trial judge did not correctly decide this issue in the trial court; the evidence at trial was not sufficient to support the conviction, notwithstanding the decision of the jury; the defendant’s trial counsel was either incompetent, or made a significant mistake at trial, or in preparing for trial and locating favorable witnesses. These are just a sample of the types of errors that can support a successful appeal.

        With limited exceptions, a successful appeal does not end the case entirely. Rather, in most cases, the appellate court (the Georgia Court of Appeals, or the Georgia Supreme Court, or the Eleventh Circuit Court of Appeals) will send the case back to the trial court to conduct a new trial but without the error that led to the reversal of the conviction. Nevertheless, often, when a case is sent back to the trial court, the prosecutor will not be interested in trying the case again and may offer a far more lenient plea bargain to be done with the case.

        A habeas corpus petition is somewhat like an appeal, but rather than challenging the conviction in the Court of Appeals or the Supreme Court, the defendant challenges some aspect of the conviction in the county in which the defendant is incarcerated. The habeas petition is filed in the Superior Court of that county. Unlike an appeal, in a habeas case, the defendant may present evidence to show why the original trial was unfair, or the defendant’s constitutional rights were violated. Generally, a habeas petition is filed after the defendant has lost the direct appeal.

        In the state courts of Georgia, Magistrates are, in fact, judges. But they have limited authority. Generally, magistrates in criminal cases preside over the initial appearance of the defendant (who has just been arrested) and for further proceedings prior to an indictment, such as bond hearings. Once the case has been indicted, or a formal accusation has been filed, the case will be assigned to a State Court judge (for misdemeanors) or a Superior Court Judge (for felonies). At that point, the Magistrate Judge has no further role in the case.In federal court, the Magistrate Judges fulfill some of the same responsibilities, but federal Magistrate Judges continue to play a role in the case, even after indictment, including hearing motions that challenge the legality of a search or seizure and challenges to the validity of an indictment. Only the judge, though, can preside over the trial of a felony in federal court.

        Grand juries initiate formal criminal charges in felony cases in both state and federal court. Though historically, the grand jury was supposed to prevent “abusive” or unfair prosecutions, these days, the grand jury basically votes on an indictment and very rarely votes against returning an indictment. The defense has no role whatsoever in the grand jury process and does not appear at the grand jury (except in cases involving police officers as defendants). The prosecutor simply presents evidence why the grand jury should indict and the grand jury does exactly what the prosecutor requests. The prosecutor is only required to present “probable cause” that the defendant committed the crime, not proof beyond a reasonable doubt.

        Personal Injury FAQs

        We’ve all heard the saying “don’t make a federal case out of it.” That’s because, in order to file a civil case in federal court, there needs to be a federal question involved (like a civil rights claim, or federal civil racketeering, etc.) or the case must involve citizens of different states with damages in excess of $75,000. It is the burden of the plaintiff (the person filing the action) to prove this statutory minimum.

        Other cases are filed in the state court system. The state court system is divided into state and superior courts, which have overlapping, although not identical, jurisdiction. Most claims for bodily injury can be brought in either state or superior court and should be filed in the county where at least one defendant resides.

        The statute of limitations is the time within which a lawsuit must be filed. In Georgia, the statute of limitations for bodily injury cases is two years. After the case is filed, it must be served promptly on the defendants you are suing. But it is never a good idea to wait until the last minute to start exploring your claim. 

        For instance, in some circumstances, like when there is a governmental entity involved, there are anti-litem (before litigation) notices that are due within six months or 12 months of the injury, depending on the entity, and your claim may be barred even if you file within the two-year statute of limitations. 

        Also, in the case of medical malpractice actions in Georgia, the case must be filed with an affidavit of an expert knowledgeable in the same field of medicine as the subject of the case. Without that affidavit, the complaint will be considered insufficient under Georgia law and will be dismissed. 

        Other examples of statutes of limitations are: there is a one-year statute of limitations for defamation cases (libel and slander); there is a four-year statute of limitations for injuries to personalty, and there are several different statutes of limitations pertaining to actions for breach of contract the shortest being a four-year statute of limitations for breach of an oral contract, and then increasing if the contract is in writing (6 years) or is under seal (20 years). (Different statutes apply to actions for the breach of contract for the sale of goods and to negotiable instruments.)

        But there are some notable exceptions to the rule. The statute of limitations can be “tolled” in certain circumstances. For instance, the statute of limitations is tolled in malpractice actions when a defendant intentionally conceals an act of professional negligence from a plaintiff, causing the plaintiff to be deterred from bringing a claim. It can also be tolled in the event of mental incompetence if the one claiming the disability suffered from such unsoundness of mind as to be incapable of managing the ordinary affairs of life. 

        Also, importantly, the statute of limitations in a birth injury case is two years for the parents’ claim for the injury to the child during his or her minority, but the child has until age 7 to have the claim brought in his or her own behalf.

        There are many examples of exceptions to the statute of limitations; however, it is imperative to get a legal opinion about the statute of limitations as soon as possible in any case you plan to bring, since missing that deadline can be fatal to the case.

        Cerebral palsy is an often misunderstood term. It applies to a number of different conditions caused by a number of different medical situations, but all of which cause motor deficits due to an interruption in the connection between the brain and the nervous system and musculature of the body. Birth injury is one of those causes. Birth injury occurs when the fetus suffers a lack of sufficient oxygenated blood or blood flow to brain tissue during labor and delivery. Warning signs of impending injury are apparent on the fetal heart rate tracing. Health care providers who heed the warning signs can prevent injury by changing the plan of care to ensure timely delivery, while those who ignore the signs will allow the problem to progress to a point of no return. Birth injury can lead to cerebral palsy, but the injury may be restricted to cognitive impairment that does not include the motor deficits of what we think of as cerebral palsy. Newborn depression, low APGARS, intensive care, and brain radiology studies are the kind of complications often, but not always, associated with a birth injury.