Misconceptions About Wrongful Death Actions

There are many myths about wrongful death actions and litigation in North Carolina. Consult with a wrongful death law firm if you have questions about the death of your loved one and whether you can recover damages

Here are some of the myths about wrongful death actions:

Myth: If a defendant is found liable in a wrongful death action, he or she could face jail time.

A wrongful death action is a civil action, so jail time is not available as a penalty. If a defendant is found liable in a wrongful death action, he or she is responsible for his or her portion of the damages awarded to the plaintiff.

Myth: I can file a wrongful death action whenever I want.

The statute of limitations in North Carolina for a wrongful death action is two years. Therefore, you must file your wrongful death action within two years of your decedent’s death.

Anyone can file a wrongful death action.

Under North Carolina law, the administrator of the estate is the only one who can file a wrongful death action on behalf of the estate. The administrator of the estate is named in the decedent’s will or appointed by the court.

Myth: I don’t need to hire a lawyer right away.

The sooner you hire an attorney, the sooner you can protect your claim. An attorney also takes steps to preserve evidence and to find the witnesses necessary to prove your case. Early consultation with an attorney prevents or reduces problems with your claim.

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Custody of children used to be a one-way street. In the 1970s, when a two-parent home broke up because of a divorce, a court assumed that the child was better off with the mother. However, custody is now a two-way street and old stereotypes no longer apply in a custody dispute. Sole custody awards are giving way to joint custody arrangements or parenting plans.

Types of Custody

When parents divorce or separate, there are two components to consider for custody:

  • Physical custody - where a child lives
  • Legal custody - making decisions about a child's life, including schooling, healthcare or religion

Each type of custody can be either sole or joint. For example, sole physical custody means that the child lives with one parent while the other parent has visitation rights. Joint physical custody means that a child has two primary residences, even if the time in each is not equal.

Debunking the Myth of Favoring Mothers

Changes in society and culture have diminished the belief that a mother is the better parent and automatically receives custody. This principle was known as the tender years doctrine. Basically, it meant that a mother got custody because a young child needed a mother's love and care, and that mothers were better suited to provide for young children's needs. A combination of factors essentially ended this notion, including:

  • Outdated gender stereotypes
  • Equality of the sexes
  • Fathers' rights movement
  • Changing legal trends

Over the past few decades, attitudes about gender roles shifted. The belief that mothers are biologically superior to care for young children is a myth. There's no evidence that a mother is better than a father. In fact, fathers play an important role in child-rearing. Stay-at-home dads are increasingly common. Perhaps the most important factor in moving away from the tender years doctrine is a court's use of the gender-neutral standard of what's in the child's best interests. Under this test, a court looks at all relevant factors and makes a decision based on what will best serve the child's overall well-being. A court considers several factors in determining what's in the child's best interests, including:

  • The child's and parents' preferences
  • The child's relationships with each parent and extended family members
  • How to provide continuity in the child's daily life
  • Physical and mental health of the parents and child
  • Who's been the child's primary caretaker?
  • Occurrences of drug, physical or sexual abuse

In a custody dispute, each parent has an equal right to show the court that a custody award in his or her behalf is in the best interests of the child. A parent's gender doesn't determine who gets custody - the court makes the final decision based on the best interests of the child.

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Some common myths about personal injury cases can lead injury victims to believe they are not entitled to compensation—or that they are entitled to less than they really deserve. A number of these myths are dispelled below by the knowledgeable personal injury attorneys at Jessie A. Jeffers, PA.

I have an indefinite amount of time in which to bring forth my personal injury case.

The truth is, there is a statute of limitations for every type of injury in the state. If you bring your case to our personal injury lawyers in Raleigh, North Carolina after expiration of the specified time period, there may be little we can do to pursue your claim. When in doubt, always seek legal guidance for the harm caused to you as soon as possible.

All personal injury cases involve lengthy and stressful trials.

Not necessarily. Many cases can be settled out of court, but it depends on a number of factors. For instance, are you expecting to be awarded punitive damages? Such financial recovery can only be awarded by a jury. On the other hand, out-of-court non-jury settlements can often be worked out to provide reimbursement for medical costs, lost wages, and pain and suffering. A major factor in the handling of your case is the question of how open the defendants are to negotiating, and how skilled your personal injury law firm is in seeking the appropriate settlement.

I should just take the first offer made by my insurance company, or the insurance company of the defendant.

This is one of the biggest and most dangerous myths personal injury lawyers encounter. The first offers made by insurance companies are rarely their last—or their best—offer. Whenever possible, speak to an attorney before accepting any settlement from defendants or their representatives.

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When I meet with clients about a DWI, they typically come to the meeting with pre-conceived ideas about how a case might go. This is because they’ve either seen a television show about a DWI or have had friends who have had DUIs or drunk driving charges in other states or jurisdictions. Let’s talk about some of the common myths about a Driving While Impaired charge. The “Top Three Myths about DWIs”.

My lawyer will be able to get a reduction in the DWI charge to a lesser crime!

This is the most common myth. It comes from a belief that DWIs are routinely reduced to other crimes as a result of a plea bargain with the District Attorney or other prosecutor. This myth comes from people who have had friends or family who either in the past, or in other jurisdictions, have had their case handled by a reduction to a lesser included offense.

Such reductions do not apply in North Carolina. As a result of N.C.G.S. 20-179.4, which explicitly makes DWI pleas difficult, the older practice of quietly reducing a DWI to a lesser charge (such as a careless and reckless) no longer happens except in very rare cases, especially in Wake County where the District Attorney has a long-standing policy against pleading down DWIs.

The truth of the matter is that your case is either going to be won or lost after a trial, unless the State has trouble bringing a witness – such as the officer, an outside witness, or a chemical analyst – to court to prove your guilt.

I did not blow a .08 or above. Police can’t prove a DWI!

There are three ways to prove a DWI in North Carolina. First, any amount of an opiate is sufficient to prove a DWI. Second, a .08 or above on a chemical – blood, urine, or breathalyzer – test – is sufficient to provide a DWI.

But what if you didn’t blow a .08 or above? What then? A police officer may still be able to convince a judge that you were drunk driving, by showing that your behavior – while driving, while performing various Standardized Field Sobriety Tests, including the Walk & Turn, the One Leg Stand, and the Horizontal Gaze Nystagmus, sufficiently proved you were impaired while driving.

I won’t be able to drive with a DWI.

A DWI will certainly impact your ability to drive, but many people will be eligible for Limited Driving Privileges (LDP) which enable them to drive to and from work or school, and drive for household-related purposes. In order to get these privileges, they will need to show proof of having taken a substance abuse assessment and begun treatment, proof of valid insurance, and a certified Driving Record that shows no DWIs within the prior 7 years.

Unfortunately, a DWI conviction will cause an increase in insurance rates by up to 400 percent. And in cases where the Blood Alcohol Concentration (BAC) exceeds .15, the person will need to have a Monitech Interlock device installed in their car.

However, a single DWI conviction in most cases will not prevent someone from driving on a limited (provisional) license during the year-long license suspension.

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Criminal Law Myth # 1: "They didn't read me my rights, so they have to drop the charges."

When you're questioned in custody, the police are required to read you your rights and offer you the opportunity to have an attorney present. However, the idea that charges must be dismissed if the police failed to read your rights is overly optimistic, and can lead to a dangerous false sense of security.

First, the police aren't always required to read your rights before questioning you; that only comes into play during "custodial interrogation".

Second, even if the police were required to read you your rights and failed to do so, the charges won't necessarily be dismissed. In fact, they usually won't. In most circumstances, if the police were required to read your rights and failed to do so, then whatever information they gathered during that questioning cannot be used against you.

Sometimes that leaves the prosecution without sufficient evidence to go ahead with the case against you, but in most cases it only means that your statement is excluded and the case moves forward without it. If other evidence exists, such as physical evidence, witnesses, or a police report, it may still be used in your case.

Criminal Law Myth # 2: "That's entrapment!"

Entrapment has a very specific meaning in the criminal justice system, and it doesn't mean most of the things that the average person believes that it means. In simple terms, entrapment means that law enforcement officers led you to do something that you wouldn't have done unless they'd encouraged you to do it.

The fact that the government provided the opportunity to commit the crime is generally not sufficient to establish entrapment if you were ready and willing to commit the crime. This includes trying to buy illegal drugs or solicit prostitution from an undercover police officer.

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Our Law Firm

Our Law Firm is committed to providing the highest quality legal advice. We are a result oriented law firm, that takes pride in giving effective legal representation.

We understand that situations happen in life. That is why it is our goal to lead you through challenging times and handle all your legal needs professionally with care and understanding.

Our Service Coverage

Mr. Jeffers' practice covers the Raleigh, NC and Durham, NC areas; and other Wake County towns including Wake Forest, Cary, Apex, Garner, Knightdale, Holly Springs, Wendell, Zebulon, Rolesville, New Hope, Fuquay-Varina, and other surrounding areas.

Mr. Jeffers also travels to most counties throughout Central North Carolina.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney at law for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.

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