• The Constitution and Criminal Law

    Ed Shaw Law Blog Aug 5, 2015 | 06:33 am

    My office gets calls almost every week from someone who was arrested who assumes that the charges against them will be dismissed because the arresting officers did not 'read them their rights'.  Anyone who has watched TV is familiar with the Miranda warnings telling someone accused of a crime that they have the right to remain silent, and that they have a right to an attorney being present during any interrogation.  What most people do not understand is that the police are not required to read rights when they arrest someone, and in most cases they do not.  Reading of the rights is only required when three factors are present:
    1.  A person is under arrest, meaning they are not free to leave.  Just because the police are talking to you does not mean that you are under arrest, even if you are at a police station, your freedom of movement has to be restricted by the police.
    2.  The police will be asking you questions. 
    3.  The police want to use what you tell them against you. 
    If any of these three factors do not apply, you are not under arrest, the police do not ask you questions, or they ask you questions but will not use what you say against you, they do not have to 'read the rights'. 
    Even if the police ask you questions while you are under arrest and do not 'read the rights', the result is not automatic dismissal of the case against you, it is the police not being able to use what you say against you.
    Being accused of a crime is serious business with serious consequences, serious legal help is needed.  The old saying a little knowledge is a dangerous thing is true in the world of criminal law.  Assuming that you have a get out of jail free card because of a legal rule that you do not fully understand can get you in alot of trouble.  If you have questions about your rights contact a lawyer right away, do not rely on what you see on TV.
    Ed and Andrew

    Read more...
  • Family Law and Guardian ad Litem work

    Ed Shaw Law Blog Jul 31, 2015 | 06:38 am

    FAMILY LAW, DIVORCE, CUSTODY, PARENTING TIME, VISITATION, FATHERS RIGHTS, MOTHERS RIGHTS

    They say that a chain is only as strong as the weakest link.  This has become obvious to me in the family court system.  A contested custody case usually involves each parent hiring an attorney and spending thousands in legal fees.  Attorneys are required to attend 7 years of post-secondary education after high school.  Cases are heard at trial by a judge, who also has 7 years of education after high school, and extensive training and support to be a judge.  The courthouses where trials occur are multi-million dollar facilities which have often had recent, expensive upgrades, and employ dozens administering the court system.  

    Who has the most important voice in most custody cases?  The court appointed guardian ad litem.  Guardians are required to have only 40 hours of training, that is one week to prepare them to decide where a child should live, and whether or not physical, and in some cases sexual abuse occurred.  Guardians make recommendations which are almost always followed by the judge.  They are the weak links.  While most guardians are good people who care about children, the inadequate training makes it impossible for them to make good, objective decisions in many cases.  I have personally seen guardians recommend that a party to a custody dispute take a lie detector test, even thought the tests cannot be used as evidence in court. Another guardian admitted to illegally giving a family member prescription medication that was not prescribed to them.  I heard a guardian testify to interviewing children about a sexual abuse claim with one of their parents in the house with them, a practice never followed by trained social workers or police.

         We, and our children pay the price for using amateurs to make some of the most important decisions in the court system.  

    Ed

    Read more...
  • Bankruptcy, Debtor Law: Some Good News

    Ed Shaw Law Blog Jul 28, 2015 | 06:37 am

    At least one good thing came out of the last session of the state legislature.  The filing fee for judgment removal was reduced from $327.00 to $5.00.  Judgment removal happens after a bankruptcy is completed, when you have a debt where the creditor has gone to court and gotten a judgment against you.  The bankruptcy prevents the creditor from collecting on the judgment, but the judgment stays on the books, which impacts your credit until it is removed.  

    The fee was recently raised to $327.00 from $5.00 by the state court administrator, in what can only be called a fee grabbing move to get money out of people just coming out of bankruptcy for cases that require very little work from the court.  Almost all judgment removal applications are handled administratively and never come to hearing, or even review by a judge.  We owe thanks to bankruptcy attorneys who pushed the issue in the legislature, and embarrassed the state court administrator by attracting public attention, and to a bipartisan group of state senators and representatives who passed the legislation in a tough legislative session, and to the governor for signing it.  Sometimes we can take on the system and win.  

    Ed

    Read more...
  • What are father's rights?

    Ed Shaw Law Blog Jul 24, 2015 | 06:36 am

    FAMILY LAW, FATHERS RIGHTS, CUSTODY

    WHAT ARE FATHER'S RIGHTS?

    The term is loaded, for some it is a rallying cry, for others a red flag.  The family law system unfortunately has some outdated notions of family.  Many judges still see stay at home mothers as normal, healthy, stay at home fathers as drunk losers who do not want to work and sponge off of their partners.  Men are still at a disadvantage in most custody cases, all things being equal, women are still more likely to be awarded custody in contested cases.  

    What do men need to do to get custody?  Be aware that courts look at what happened when you and the other parent were together.  If you spent most of your time outside of the house you will have a hard time winning a custody contest, unless there are serious problems with the other parent.  If you were in an equal parenting situation with the other parent you  have a chance.  It is important that you get an attorney who knows the local judges, and who has outdated ideas about men's role in the family, each party to a custody dispute can remove one judge.  With the right arguments men can succeed in the court system, but it takes work.

    Ed

    Read more...
  • Small(er) town lawyering

    Ed Shaw Law Blog Jul 20, 2015 | 06:34 am

    CRIMINAL LAW, FAMILY LAW, DIVORCE LAW, CIVIL LAW, CIVIL LITIGATION.

    DO YOU NEED A BIG CITY HOTSHOT?

    We all know the type, or think we do.  Expensive custom tailored suit, fancy office, slick advertising, flying down the freeway in his foreign sports car.  You pay for all of these accessories, is it worth it, does it make a lawyer better at their job?  As I have never seen a suit, car, or office in court arguing a case, I have to say that none of these things makes a lawyer better.  In my experience rural Minnesota judges, and most metro judges are not impressed by flashy attorneys.

    What do you want in a lawyer?   Someone who you can communicate with, who listens to you, who understands the law, takes your case seriously and is willing to work hard.  If you have a serious case you need a lawyer who will put serious time and effort into it.  If you like fancy cars and suits, better to hire a lawyer who does not have them, and use the money you save to buy your own.

    Ed

    Read more...
  • Back to school:Custody Issues and Family Law

    Ed Shaw Law Blog Jul 17, 2015 | 06:41 am

    FAMILY LAW, DIVORCE, CHILD CUSTODY, SUPPORT

    It seems like summer barely started, but school is less than 2 months away.  If you are co-parenting a child with another parent who does not live with you and you do not know where they are going to school this fall, now is the time to get it sorted out.  Every year I get calls right before Labor Day from clients needing to get their kids back before school starts.  Getting into court in most situations takes time, often over a month.  If you are concerned about where the kids will be going to school, now is the time to get moving on it.  Your kids deserve to have their school situation resolved before school starts.  

    Ed

    Read more...
  • Working in Criminal Law and/or Criminal Defense

    Ed Shaw Law Blog Jul 13, 2015 | 06:32 am

    In my years of practicing criminal law I have worked with dozens of prosecutors.  I have found them to be almost always good to work with, and while I often do not agree with them on my cases, I understand where they are coming from and the job they have to do.  It is rare for me to see a case where the prosecution is acting in a truly unreasonable fashion.  This week I handled a case in Wadena County where unreasonable would be an understatement in describing the approach taken by the prosecution.  My client, who gave me permission to talk about his case, is a farmer, been farming for 43 years.  7 years ago he had a serious accident, fell 60 feet, injured severely, lucky to be alive.  Since then he has been in and out of the hospital undergoing numerous and painful treatments, and has struggled to keep his farm going.  He is in severe pain on a daily basis, I have seen people with injuries less severe than his on permanent disability.  Last summer, he wrote a check to the feedstore and postdated it a couple months out.  The feed store agreed to take the check, he assumed that he would have funds in the account to cover it.  After he wrote the check he had to undergo more treatments, and was on medication that limited his ability to work and generate income at the farm.  When the check came due he did not have money in the account to cover it.
          
    The Wadena County Attorney charged him with a felony over this, and had a warrant for his arrest issued.  Even after being provided with information about his medical condition, they refused to dismiss the case.  My client has no criminal record, has worked hard all of his life.  The the credit of the judge, she dismissed the charges against him after I filed a request for dismissal, called a motion to dismiss with the court.  This unwarranted prosecution caused my client needless stress, and money, and cost the taxpayers of Wadena County.  Using the criminal process to harass people whose only crime is struggling to pay their bills is an insult to our system of justice.  I would hope that the citizens of Wadena County consider replacing their elected county attorney with someone who will use their tax dollars to prosecute criminals, not harass citizens.

    Ed

    Read more...
  • What is Evidence?

    Ed Shaw Law Blog Jun 23, 2015 | 06:31 am

    CRIMINAL LAW, FAMILY LAW, CIVIL LAW, REAL ESTATE LAW, TRIALS

    WHAT IS EVIDENCE?

    Clients often tell me they have no proof when they have not physical evidence or documents to support their claim.  It is easy to assume, after watching Bones, CSI, Dexter and similar T.V. crime programs that cases always involve clear physical evidence gathered by hard working, and usually very attractive detectives and scientists in white lab coats and tailored suits.  

    The real legal world is not as simple.  In most cases, there is not clear physical evidence that proves a case one way or the other, there is often no physical evidence at all, even in many criminal cases.  Real world criminal investigations are much less thorough than what you see on TV.  Most evidence is produced in the form of testimony, witness statements about what happened.  When there are competing witness accounts, judges decide which witnesses are more credible in determining which side has proven their case.  What is said in court and how it is said is important, how you come across as a witness could determine whether you win or lose your case.  Do not wait for the white coats to show up and save the day for you.

    Read more...
  • In Family Law, Don't Push Your Luck

    Ed Shaw Law Blog Jun 16, 2015 | 06:30 am

    DON'T PUSH YOUR LUCK

    FAMILY LAW, CIVIL LAW, REAL ESTATE LAW DIVORCE

    The old saying don't push your luck can come true in the legal world.  Sometimes negotiating an agreement in a divorce, custody dispute or civil case can be tough, the other side is not always reasonable, we need to push the issue or go to court if necessary.  Other times, the other side may be very reasonable right away, they want to get the case settled and move on with their lives.  When that happens, I advise my clients to take a good deal instead of pushing for more.  Sometimes you can get an even better deal, but more often than not pushing too far can make the other side pull their offer and dig in, I have seen it happen.  

    When you get a good offer to end a case, jump on it and move on with your life, you will be glad you did.

    Ed

    Read more...
  • Criminal Charges and their Effects

    Ed Shaw Law Blog Jun 9, 2015 | 06:29 am

    CRIMINAL LAW, CRIMINAL DEFENSE
    What should you do if you are charged with a serious crime?
    Being charged with any crime is serious, even misdemeanors can have far reaching consequences.  Serious felonies put you in a whole different situation.  A conviction for one will most likely send you to prison, possibly for decades.  You will almost certainly lose your job, your marriage if you are married, and starting over after prison with a felony criminal record is very difficult.  You will lose your right to vote, and if you are convicted of a sex crime you will be required to register as a sex offender for many years, or the rest of your life.
    What should you do if you are facing a serious felony charge?  Do not give up, but treat if like a diagnosis for a very serious illness, fighting it should become your one and only priority.  If you lose nothing else will matter.
       
    What should you look for in an attorney?  One who knows their stuff, but more importantly, one who is willing to make your case their number one priority.  A defense that gives you the best chance to win will involve months of pre-trial work designed to give you the best chance to win, consultation with psychological experts who may be called to testify on your behalf, a trial that will likely last a week or more, two week trials are common in these types of cases, and single minded focus for the duration of the trial.  Needless to say this will not come cheap.  Effective serious case defense will cost you well into the 5 figures.  If you pay cheap in this type of situation you will probably get what you pay for, and be on the fast track to prison.
    Ed

    Read more...