So You Got Yourself Named in a Felony Warrant, Now What? 
Part V – To Appeal or Not to Appeal

shutterstock_285195986-thumb-400x267-65299A felony warrant turns your world upside down. Not only are your freedom and your future on the line, if it’s your first arrest, you’ll have no idea what to expect. This criminal law blog series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In this installment, we cover the decision to appeal (or not) a ruling in your case. In a felony case, you may have received a stiff sentence that will affect your life for many years, so it’s important to weigh your appellate options early and thoroughly. You have a lot to lose if you don’t.

Can you even appeal it?

The first thing to figure out is if you even have grounds for an appeal. One of the biggest misunderstandings people generally have about the appeals process is the idea that you can appeal a ruling in your case because you don’t like it. This isn’t true. There has to be a legal reason for the appeal. Legal reasons include violation of Due Process, insufficiency of the evidence, technical issues of law (jury instructions, evidence admissibility, experts), and excessive sentence.

Figuring out whether there are appealable issues in your case can be complicated. It’s good to have the advice of a trusted attorney to guide you in this part of the decision before you waste a lot of time and money on an appeal the court may see as frivolous — and ultimately will dismiss.

It’s Not a Do-Over

Another common misunderstanding comes from a belief that an appeal is an opportunity for a new trial or sentencing hearing. Not so. During an appeal, the appellate court reviews the information the trial court had in front of it when it made its ruling. You won’t get a chance to present new evidence.

In an appeal, the appellate court will only consider the record of the trial court and the appellate briefs submitted by the parties. Both the appellant (formerly called the defendant) and the prosecuting attorney will have the opportunity to file briefs. The appeals court may also allow oral argument, which it would also consider in its decision.

How Pleas Affect Your Right to Appeal

Entering a plea doesn’t necessarily mean you give up the ability to appeal. You may still be able to appeal certain constitutional and statutory claims like ineffective assistance of counsel, excessive sentence and sentencing based on race.

This list isn’t exhaustive, there may be other issues you can appeal as well. Like many other aspects of appeals, this part can be complicated. Your best bet is to have a lawyer guide you.

Time Is Not on Your Side

As soon as your sentence is pronounced, the clock starts ticking on filing your notice of appeal. If you don’t file within the time limit imposed by law, you will not be able to appeal, so it’s important that you don’t wait and that you quickly get legal advice from a criminal law attorney experienced in appeals.

The limited time you have to file your appeal may not even be your biggest reason to make your decision quickly. Appeals are not speedy. They can take months, or even years and, depending on your case, you may sit in jail the entire time your appeal is pending. The faster you get it filed and move forward, the faster you will have a resolution.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Must Have Information on Child Custody: Joint vs. Sole Custody – What it Means

shutterstock_18287620Going through a child custody case can be tough for parents, especially if you’re in the dark about Nebraska child custody law.

In this series, Must Have Information on Child Custody, we’ll take some of the mystery out of the law and give you information you need about child custody in Nebraska.

This week, attorney Scott Hahn deciphers joint vs. sole custody under Nebraska Law.

The Definitions 

When we talk about child custody, we’re talking about two different kinds of custody: physical custody and legal custody. Physical custody means who has physical possession of the child; legal custody means who has decision making power on the child’s behalf. Both kinds can be joint or sole.

Joint legal custody means the parents share in all legal decision making for the child and must agree, unless the order contains a provision that, in an impasse, one party will have final say. It can be argued, however, that such a provision, in effect, converts the order to one of sole legal custody.

Sole legal custody means only one parent has legal decision making rights for the child, except in cases of medical emergency when the child is with the non-custodial parent. In that circumstance, the non-custodial parent may make medical decisions for the child.

Joint physical custody means split time – or close to it. The cut off is whether each party’s parenting time exceeds 142 days a year. Generally, to be considered a “day” the parenting time includes an overnight stay.

Sole physical custody means one parent has the majority of the time with the child. In a sole custody arrangement, the non-custodial parent typically has what is referred to as “Wilson” visitation, which means every other weekend, alternating holidays, and one week night visit that does not include an overnight.

What will the Judge Decide?

Under Nebraska law, the judge cannot favor one parent over the other in custody decisions based solely upon that parent’s gender. The judge is to base the custody decisions on the child’s best interests, a subject we covered in detail in an earlier article. That article provides great information on the specifics that the judge takes into consideration when making a custody determination.

If you and the other parent can decide the custody arrangements between yourselves through mediation or negotiation with the help of your lawyers, you will be better off in the long run. In most cases parents who decide their own custody and parenting time arrangements have more success with co-parenting long term.

Regardless of whether parents have joint or sole custody, each parent will still have the right to access the child’s educational and medical records.

How Custody Affects Financial Support

If each parent’s time exceeds 142 days per year, Nebraska Law says the court must use the joint custody calculation worksheet. That means child support for the parent receiving support will be reduced from what it would have been in a sole custody situation.

Reasonable and necessary direct expenses such as clothes and extracurricular activities are split between the parents according to the percentage of each parent’s child support contribution. In other words, if one parent pays 30 percent of the child support table amount, and the other parent pays 70 percent, they will respectively pay the same percentages of direct expense for the child.

On the other hand, if either parent is awarded sole physical custody, there is not a separate provision for direct expenses. Instead, the parent with sole physical custody is expected to pay for those expenses out of their child support award.

How It’s Put on Paper

Whether the judge makes the decisions in your case about custody and parenting time or you and the other parent decide through mediation or negotiation, the specifics must be put into a written parenting plan that complies with Nebraska law and is approved by the court.

Once the judge approves and signs the parenting plan, it is considered an order of the court and willful violation is punishable in contempt proceedings.

Don’t Go It Alone

Hightower Reff has a team of experienced child custody attorneys, as well as a trained, certified mediator. One of our lawyers would be glad to meet with you to talk about how we can help with your case.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

What to Expect from Your Lawyer – The Bill. Five Tips for Controlling Your Legal Fees

shutterstock_124994786-thumb-400x500-65288Lawyers can seem like they’re from a foreign land with their own strange customs and language. And, let’s face it, sometimes (okay, a lot of times) some lawyers seem unapproachable, which can make the client experience less than a good one.

At Hightower Reff, we do our best to be approachable, be clear about our legal fees, and have a productive relationship with our clients. A big part of that productive relationship is helping our clients know what to expect in all areas of their cases so they can be realistic about their goals.

In this series, What to Expect from Your Lawyer, Hightower Reff Partner Attorney Susan Reff will give you some useful information to help you understand why your lawyer handles things the way they do and to maintain reasonable expectations regarding your attorney and your case.

This week: The Bill. Five tips for controlling your legal fees.

1. Pick Your Battles

We covered this in detail in the last article of this series, and it’s so important when it comes to controlling your legal fees, that it’s worth repeating.

Money is an important form of “fuel” to help you reach your goals in life in many areas, including reaching your legal goals.

If your lawyer charges by the hour or by the task, the more issues you choose to fight, the more hours it will take. The more hours it takes, the more money you spend. Unless your money fuel tank is unlimited, you have to decide where to focus your money fuel.

If you spend it all fighting over things that really don’t matter in the end, you may find you don’t have any left for the issues in your case that truly matter to your life and your child’s. Pick your battles and put your money fuel where it counts.

2. Practice Phone Efficiency 

In an earlier article, we talked about what to expect from your lawyer regarding phone calls. Phone calls are a fast way to run up your bill. Remember: each time you call, you get a charge on your legal bill.

Unless it’s something urgent or time sensitive, put off the call if the question can wait until the next time your lawyer calls you, or until you have more than one question. We recommend our clients make a list of these “little” questions that are bound pop up and ask them all at once.

If you need regular reassuring from your attorney personally, and if your attorney is willing and able, you may want to schedule a weekly phone call with them when you’re in the active phases of your case. That way, you can have peace of mind by touching base at least once a week, and have your “little question list” ready to go for the weekly call.

3.   Keep Your Eyes on the Prize

When you talk to your lawyer, stick to the legal issues in your case. As compassionate as your attorney may be, and as much as they may care about your case, they are a counselor at law, not the kind for emotional or mental health support. In other words, your lawyer is qualified to give you legal advice, not emotional therapy.

A licensed professional counselor can be an important support during stressful litigation. Their hourly rate is probably quite a bit lower than your attorney’s and may be covered by your health insurance. Legal fees are 100 percent out of your pocket.

4. Know How Your Attorney’s Firm Bills  

Attorneys can bill by the hour, by the task, with a flat fee or by a percentage of the money you recover. Aside from attorney fees, legal costs like depositions can add up. So you don’t have any surprises, find out up front your firm’s billing method and what costs your attorney expects may be involved in litigating your case.

Also, if your lawyer bills by the hour, find out in what increments they bill. A lawyer who bills in a fifteen minute increment will end up costing you more than one who bills in a six minute increment. For example, at $275 an hour, a four minute phone call will cost you $27.50 at a firm that bills in six minute increments. The same phone call will cost you $68.75 if your firm charges in fifteen minute increments.

5. Put It in Writing

Signing a Contract for Legal Services with a law firm may seem daunting, but it’s as important for your protection as it is for the firm. The contract sets the rules between you and your lawyer on how your representation will be handled – including fees. Make sure you have a contract that includes clear language regarding the firm’s rates for the attorneys and support staff and the method of calculating your legal fees. Read it thoroughly before you sign.

If there is ever a disagreement about how you’re being billed, a contract that is clear in its terms can be a good thing to refer to in deciding whether billing is happening according to your agreement with the firm.

Next Time…

Watch for Part IV of our series – unnecessary roughness in the practice of law and why it could mean a flag for your case.  

Let Us Know if We Can Help 

To find out more about Hightower Reff and how we can help, call us at 402-932-9550, or contact us online.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.