Latest / Ask the Lawyer / 07/06/2023 Ask the Lawyer with Tom Peyton

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07/06/2023 Ask the Lawyer with Tom Peyton · Ask the Lawyer

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a twenty one and this is five if anything you see, h asked the
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Voice of Charleston. Good Thursday morning to you, Jeff Jenkins with you with
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Tom Peyton, the Peyton Law Firm in Nitro lines are open. Any questions
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about the law three oh four three four five fifty eight fifty eight questions for
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Tom three oh four three four five fifty eight fifty eight three h four three
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four or five fifty eight fifty eight. Good morning, Tom, Hi you
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good morning, Jeff. Great, glad to be here. Good mister,
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mister A couple of weeks, I think then Dad subbed in for me last
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week, maybe the week before. So yeah, had a good July fourth,
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the celebration, and now we're back at it at the Peyton Law Firm.
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This. Yeah, back at it talking to people, uh, you
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know, on many many different things, fielding calls. You know, we've
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been kind of watching, you know, what's happening in the courts, and
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I think local courts. It just seems like, you know, things are
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just proceeding. I mean, you're getting they're going to get a law into
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sometime a little bit. I mean, certainly the things justice pounds forward,
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but just seems like you get trials that might go in the summer tend to
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get scheduled back toward the fall, and then the fall becomes really busy.
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And that's that's the way it goes. We're staying we're actually staying really busy
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at the office there. But yeah, if you have a question, give
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us a call today. But if you have a question you don't want to
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ask on the radio, or just need some basic information, you can also
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call us at the office, which is three or four seven five five five
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five five six, Or you can go to our website Peyton Law from dot
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com and you can submit a question there and that that doesn't go to some
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can service or answering service. There might be some filter on it, but
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it comes directly to my computer and Dad's computer, and one of the two
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of us will respond. If you don't get a response within a day or
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two, then just re email it, because it's sometimes they get put ever
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into junk. And sometimes these days too, you gotta be careful because sometimes
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they're worded in an unusual way and you can't tell whether they're a phishing,
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fraudulent type email. And if you get any of those, you know,
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don't ever click on them. And so we got to be a little careful.
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I mean, it's so amazing how well fraudsters can mask illegitimate emails to
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look like legitimate emails. I mean, it's really difficult sometimes to figure it
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out. But if I ever have a quite farewell, if they really need
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me, they'll call because I can't tell whether this is a scam or not.
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So and you hear all kinds of weird scams out there nowadays about jury
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duty. I mean threatened with the rest warrants and just never give out your
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associated number or your day of birth over the phone or an email unless you're
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one hundred percent sure. And and there's just people to make a living just
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all day, every day phishing for information and once you click on it an
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attachment, then sometimes that means they got access to your full system, which
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can become a major problem a lot of older folks. Now, I get
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the calls easy trying and turn them over to the Western Attorney General was off
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us to see if because they may have a running case against a cereal fraudster
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that's out there. Because there's really very little you can do as a private
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law firm. You know, when you got somebody maybe from Canada or Africa
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or wherever, you know, with this fraudulent conduct. And if you get
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a hack to your bank account or something, then certainly you need to let
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your the bank or credit card company know that it's fraud and you have ability
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to challenge that through their system, and I think they probably have some insurance
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for it, and usually you get your your money reimbursed through that mechanism.
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But anyway, digressing it has been a despite the slowness a little bit in
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the state course. We've had a lot of action at the US Supreme Court
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here in the last week. I probably since Dad was here last Thursday,
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so I think you guys might have been talking about some of the cases that
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were depending but we've got the h Well. I was kind of watching this
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the couple cases about Religi just freedom in a way or First Amendment kind of
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dovetails into that, which you've got. The The one I was really watching
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was there was a postal worker who was kind of a substitute worker that was
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having to sub for other regular full time postal workers, and so he was
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having to work on Sunday where they were scheduling him to work on Sunday to
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fill gaps and the full time workers schedules, and he just refused to work
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on Sundays because it was Sabbath and he's it was a religious issue for him,
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and I believe they they would accommodate him to the extent they could,
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but then there was employees that couldn't make it, and so they ended up
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having to put him on the role for Sundays and he was just not showing
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up. Actually, eventually I think he resigned versus being fired. But it
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was kind of a constructive firing, I guess you would call it. It
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didn't in fact firing, but he wasn't going to be able to keep working
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there and not working on Sundays, so he out a case saying that that
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violated his freedom of religion to force him to work on a Sunday. I
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thought, well, that's interesting, and the Supreme Court heard that case and
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actually decided in his favor, but didn't really reach the ultimate issue, which
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I think is what we've got to be careful about. Now. It still
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sets. I'm not sure it creates any more rights than the worker had before.
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But what it did was it changes the standard. So before this case
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last week, if you sought a religious accommodation at your workplace, so you
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want to anything, you know, I need to say a prayer at a
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certain time or something like that, then if you ask for that accommodation,
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your employer had to consider it. But if it caused really any undue hardship
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to the employer, they didn't have to honor your request for accommodation. And
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what the standard came from a nineteen seventy seven case. It basically says if
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it caused even a dimentimus, which is a Latin legal term to mean even
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a small undue hardship on the employer, then they didn't have to accommodate the
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worker. Now this case didn't say this Groff was his last name, the
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postal worker was one is case. It just said, hey, that standard
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isn't right anymore. We're gonna make it a little more difficult for employers,
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I guess you would say, or make them take extra measures to accommodate a
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true request for a religious accommodation. And so they changed the standard from dementimus
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still undue hardship, but they basically redefined undue hardship in this case. So
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if you request a religious accommodation, the employer does not have to honor it
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if it causes an undue hardship, which was the law before. But now
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undue hardship is is not a dominimus. It has to be something more significant,
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some more significant interference with the employer's work. So if you so,
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let me just take this. So if you couldn't work but cause of religious
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so they're it have to be just say it's a plant or something in your
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job. So vital production couldn't take place. That's something, And so in
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this one it was they didn't say which way they would have ultimately ruled on
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this one because I think the Postal Service was, well, you know,
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it's it's causing problems with our other employees because then the employees that already worked
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full time, I've got to come and fill in when you're supposed to be
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the flex employee filling in for them. So it was causing problems in the
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workplace. And of course the only reason it's the US Postal Service. I
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think if I recall and they have basically they to compete. They had to
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contract, you know, and deliver Amazon products on Sunday, which I think
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was the That is why you see Postal Service trucks driving around on Sundays now,
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which you do you know, you don't. You never would have seen
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that ten years ago. But yeah, so it has to One of the
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examples was it has to substantially increase the cost to the employer somehow. So
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it's all kind of a new different standard without a real specific example of it
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being applied to yet. So now that standard will come down and it'll have
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to be applied across the board in all the states or across the country,
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whenever there's a request for an accommodation, it's no longer well, you know,
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we can't accommodate that because you just have to work that day, because
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it causes some disruption in our workforce. Now it's gonna have to be something
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more than that. And you're the example you gave wasn't a good one.
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Or if you have a plant, you have a quota, and you've got
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a plant can't operate if somebody doesn't show up on certain days or somebody needs
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to take breaks at particular times or where something in particular. Then if that
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is a substantial undue hardship and increase the costs or doesn't allow the company to
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fund, then they don't have to accommodate that request for a religious accommodation.
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So then what would be the chance And Tom Patin's with this is Peyton Law
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Firm and Nitro three or four three four five fifty eight fifty any questions about
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the law for Tom three or four three four five fifty fifty, what's the
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chance then after that's applied that there could be an appeal of that right.
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So this one will go back, and now the lower court has to go
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back and redecide this one under the news standard, and I don't know if
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it'll be a court decision or if that there might be some issues that cause
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it to go actually to a jury trial on this particular case, because it's
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not going to be it's not going to be dismissed like it was. Obviously
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the court spring court saw enough to send it back, so there's gonna be
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a new analysis. I guess the underlying court could still say well it does
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cause it still causes undue hardship and dismiss it again, and then he could
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appeal again, go back and forth. But you're going to see now you
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know there's been that undue hard ship tests was from a case in nineteen seventy
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seven, So for what almost fifty years, we've been operating under that test
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for this particular issue, which is now changed. So it's hard to take
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old precedent. You know, different factual scenarios, and now you got to
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go and say, well that one, that's how it turned out for somebody
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not work wanting to work on Sundays in this industry back in nineteen ninety two.
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But now it's not the standard anymore. So basically all of it needs
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to be reanalyzed on a case by case basis. So we'll see and then,
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you know, I think there's probably still it needs to be sincere religious
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belief. I think there's another standard there too that you know, folks can't
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just create something that's not truly a We saw some of that with the I
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think we saw we definitely saw some of that with the COVID vaccine. Things
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people say, well, there's a religious exemption to my religious my religion prohibits
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me from getting the vaccine, which was probably true for some people, but
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also certainly it was a pretext to not have to take the vaccine in certain
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circumstances during the COVID pandemics. So we'll see, we'll see how it plays
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out. Be kind of interesting. As the standard, there'll be some a
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lot of new cases filed, probably because people won't know the answer to the
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question yet, and I think it's rare. It just shows you, like
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there was a lot of attention on these handful of decisions that came down over
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a couple of days, five or six cases whatever it was, or and
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it just shows you from your Supreme Court, I mean, they just don't
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take a lot of cases, right, right, I mean that's just the
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process. Yeah. I think this type issue had been up before and they
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just declined it regularly, and so now it finally got there. And then
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the other one that's kind of I guess a little bit similar and that involves
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a religion issue, was where the I think it was a woman that the
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allegation was by her that she wanted to design websites. I don't think she
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was doing it yet, and this is in Colorado, but she didn't want
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to design a website for same sex couples. Therefore, she hadn't started her
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business yet. And because it was in Colorado, they have a antidiscriminate civil
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rights type law that prohibits discrimination based on like a sexual orientation. I didn't
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read the underline statute, but so she didn't file a lawsuits saying well,
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that violates my First Amendment right to free speech actually, and so I kind
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of thought the Supreme Court might just decline it because I don't think there was
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there was some kind of maybe hypothetical situations, but I'm not sure anybody had
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actually remember the one about the cake from years ago. We'll see that was
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where they had a real business, and well there was a there was a
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real controversy because I think the same sex couple would come in and said,
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hey, we designed this cake and somebody said no. And so you actual
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parties in controversy, because generally courts aren't supposed to give what I would call
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advisory opinions when there's no actual case in controversy. There has to be real
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parties that have an interest in it, and they have to have a controversy
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going on for the courts to resolve. So I thought the Supreme Court might
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just say, well, this is you know, you can't come here with
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a hypothetical situation. There's got to be some real but they took the Supreme
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Court took it kind of surprising to me, and then basically spun it into
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website design is a type of speech under the First Amendment, and therefore you
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can't force this person to comport their speech to the law because they have the
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freedom of speech. And so to design a website for somebody that they don't
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want to design a website for is violation of her First Amendment free speech rights,
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and in combination with the freedom of religion, and so they ruled in
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favor of the website designer, and basically that law cannot be enforced against her
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to the extent would have required her to design a website for a seem sex
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couple. That'll be interesting to see how that falls out. It's still they
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were very careful to say it only applies to things that are quote speech.
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So they left intact pretty clearly anti discrimination laws that involve employment or different tinds
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of services perhaps, so they're careful to say what is speech, and so
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website design, I guess, is a form of speech which is protected.
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Now doesn't mean in the employment context in Colorado where they have a law that
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protects against sexual orientation discrimination, then the law that would prohibit that discrimination,
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and then ployment employer employee context is still intact because that's speech. That's not
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what an attempt to restrict quote speech. So it's still factually specific and it
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still depends on what type of industry. But we do know that website design
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is is speech, and so local laws meant to protect I guess, marginalized
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or perceive marginalized members of society are not protected in relation to third party businesses
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to the extent the business activity is quote speech. So see how that one
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falls out too. That will be that's interesting because you know, again it's
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I think they're a little easier to decide when it's the mainstream religion that's being
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addressed. When you get some of these fringe religions that are way off base
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with the norms of society or something, I mean, then you get out
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ye, facts become more difficult then. And so we'll see how how it
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plays out, because there'll definitely be some folks that have that type industry refusing
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to do business with certain members of society, and they'll they'll claim, well,
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that's freedom of speech, so I don't have to and it could be
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a lot of different I mean, there's there's all kinds of hypotheticals in that
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scenario. So that'll be interesting when I see how that falls out as well.
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Right, three or four three four five fifty eight fifty We want to
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take our one and only break of the show. Tom Payton with a paytent
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law firm in Nitro. It's eight thirty eight. Give us a call.
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Lines are open. Three or four three four five fifty eight fifty eight.
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Three or four three four five fifty eight fifty back in a moment on five
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eighty WCHS. If you've been hurting a car wreck, stop worrying about your
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car, stop worrying about your medical bills, and stop worrying about your lost
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wages. Just call Peyton Law Firm right now and we'll fight to stop your
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car wreck worries. I'm Tom Peyton, and if a careless driver hurts you,
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it's our job to hold their insurance company responsible. Calls today at seven
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five five fifty five fifty six, or visit Peyton Law Firm dot com.
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The power of Paton on your side, the power pay Hey. It's Jerry
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interview highly inspiring, motivating and uplifting people from the sports world, people who
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have overcome great odds to succeed were just made life better for others. Amazing
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Americans Sundays at seven am and eight pm right here on the Voice at Charleston
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one oh four, five ninety six, five and five eighty wc HS.
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Put the power of Paby on the side. We have the courtroom experiences you
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When you need action, count on us. But the power of Beason on
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your side, the power of pa. It's a forty on five. Anything
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you sehs the voice of Charleston Jeff Jenkins with Tom Payton or the Payton Law
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Firm, give us a call. Three oh four, three four, five
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fifty eight fifty eight three oh four, three four or five fifty eight fifty
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Okay, Tom, you represent a lot of folks who have been in occidents.
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Those happened all the time, as you know, I was reminded of
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as I was traveling for some over over the fourth And I mean, you
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you get in an accident, you've got insurance, you think, okay,
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I'm good. But sometimes that's kind of where you know, maybe your expectation
19:48
isn't exactly what kind of happens, and so you've got other people involve other
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so what happens. I mean, it can be complicated obviously. Well,
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yeah, this in your wheelhouse, you sure. I mean that's and you
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know, we talked about a lot of stuff on here, but you know,
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probably of our work, or at least eighty some percent is civil litigation,
20:08
and a lot of that is automobile accent. It claims um and fighting
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with automobile ensures. And certainly if you get in a simple bumper bender and
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you're you know you're not hurt. You know, now you don't always know.
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I'd say sixty five percent of my case is on the crash report,
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the offer. The officer fills out a crash support at the time and he
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checks the box no injury, possible injury, and capacitating injury death. And
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so I get a lot of cases where people are hurt, but the officer
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check no injury because folks are they have adrenaline and not feeling things at the
20:45
time. There really really isn't a black and white rule when you need to
20:49
go seek treatment or even report an injury to have ultimately an injury claim.
20:55
But it can become problematic if you delay. But it's kind of like you
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know, you got in your well, Yeah, I see it, because
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a lot of the injuries are not broken. Obviously, if you break a
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bone, you're probably going to be feeling it right there at the scene.
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But if you've got ligament, joint, muscle, sprainstrain what people commonly refer
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to as whip last type injury, a lot of those you don't feel the
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day or even maybe the next day after the accident. And that's akin to
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you know, if you haven't worked out for a while with Wade, so
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you're doing, you already work for the first time, you don't feel sore
21:30
that night. You probably don't even feel sure the next morning. It's about
21:33
twenty four hours before you start feeling a problem. So but if you don't,
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you know, if you wait a few days and you don't have any
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any injury or any any physical problems, and you can probably handle your proper
21:45
damage claim. When your own it's just a matter of getting ahold of the
21:48
other person's insurance and getting your car repaired. And while while your car's being
21:52
repaired, you were entitled to a replacement vehicle, they either need to authorize
21:59
a rental were you or pay you so much per day to make up for
22:03
you having to rent a vehicle or even just not having even if you're able
22:07
to get by rideshair or something, you're still in total to something. In
22:10
my opinion, every day in which you don't have an operating vehicle when somebody
22:15
else causes the accident. When it's your own, auto insurance a little different.
22:18
But if you've got something more complicated than that and have some type of
22:22
injury, or your car is totaled and you're having trouble dealing with it,
22:26
you're at least call an attorney and for an initial review like that. I
22:30
don't think any lawyers charge of fee, and we certainly don't, and so
22:33
we can kind of talk you through the process. You've got health insurance issues
22:37
that need to cover your claims. You might have some different types of coverage
22:41
under your own auto insurance, and you've got to be a little careful what
22:45
you say to the adjuster that works for the other person that caused the accident,
22:48
because no matter how nice they are, they're working on the other side.
22:52
They are a third party's insurance, not your own, so they have
22:56
some duties to you. But at the same time they don't to be I
23:00
guess as nice to you as your own insurance company does, because their essence
23:03
working for the person who caused the accidents. So you got to be careful.
23:10
Doesn't hurt to give us a call or an email. Ultimately, if
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it's a case we take, then we do all those on contingency fees,
23:15
So you never pay us any fee unless you make a recovery on your behalf,
23:19
and that goes for cost advance too, which can be significant. Sometimes
23:22
we've got to get experts, and you know, if you have a serious
23:26
injury and you know it right off the bat, you need to you can
23:30
play lawyer and try and do it yourself, but certainly if you hire us
23:36
under almost all circumstances, any lawyer of any count really you're going to do
23:40
better if you have a serious injury case. If you have a lawyer helping
23:44
you, you should do better monetarily, and you'll certainly do better making sure
23:48
your rights are protected so you know, any potential insurance coverages are discovered,
23:53
because if you get hurt and you can't work anymore and you can't support your
23:57
family anymore, you know, there's not a whole lot of unless you have
24:03
privately purchased long term and short term disability insurance, which those are rarely,
24:08
if ever, one hundred percent wage replacement. So you're not going to go
24:11
off. I mean, event you can get FMLA if your employer is big
24:15
enough, but remember that doesn't you don't get paid while you're on straight FMLA.
24:18
You just have your job is reserved for a certain period of time if
24:23
you can come back to work. Other than that, you're looking at disability
24:27
pay if you bought private disability in terms which almost nobody has it, I'd
24:32
say ten fifteen percent of the population. Most of them have it through an
24:36
employment related plan. So if you didn't get hurt at work, you might
24:38
have an employer funded disability plan. And then ultimately, if you have long
24:44
term disability where you can't do really any job, then you apply for socialcurity
24:48
disability. But that's unless it's a real, real open and shut case,
24:52
which are fairly rare these days. With soccurity, you're gonna wait year and
24:56
a half to two two and a half years to get your benefits there where
25:00
you have no income from the Security Administration until you win your case hopefully.
25:04
So all that being said, it's really important if you have a serious injury
25:08
to consult a lawyer about it because you need to make sure that you know
25:12
all coverages are discovered, and that can be complicated depends on who was driving
25:18
their car. Does a different person to own the car versus who was driving
25:22
the car? Do they to force the insurance company and that person to disclose
25:27
all the types of coverage they have, you have to send a particular type
25:30
of letter that matches a section of Western your code. So it can all
25:33
be quite complicated. So I mean, nothing wrong inherently with trying to handle
25:40
a claim yourself, but certainly if you've got an injury where you're going to
25:42
be off work for a significant period of time, you need to contact a
25:47
lawyer to make sure that things go well. And you know, almost universally
25:53
you should do better with a lawyer rather than not having a lawyer. And
25:56
that's that's not automatic every time, but you know, we usually arrange our
26:02
fee agreements so that to ensure our client does just as well, usually a
26:07
lot better hiring us than they would if they tried to do it themselves.
26:08
Plus you got somebody on your side you can call and make sure you know
26:11
you get this weird letter like, well, they're wanting to get to my
26:14
medical records. You know that's well, you don't have to let them get
26:17
of your medical records. You can get to your own medical records and send
26:18
it to him, or maybe we'll sign an authorization and let the auto ensure
26:25
you gather some records. But we're going to change the language and limited,
26:27
So they're not just getting ten years of everything under the sun that you've been
26:32
treated for because they may treat you fairly, they may not. But at
26:37
the same time, they're going to get all those records, and trust me
26:38
if they see something in there and said, oh, well, Jeff Jenkins,
26:42
you know, look he went to the doctor two years for this accident
26:45
and he was already complaining about back pain. So now this new injured.
26:49
This car wreck couldn't have caused it because he had back pain before the accident,
26:52
and say, well, maybe that's something minor. I mean, maybe
26:56
they're not even entailed to get that record, and maybe it's something just insignificant.
27:00
You happen to mention to your primary care doctor but never mentioned it again
27:03
and never got any treatment for it. But that's that's the kind of thing
27:07
you got to be an example of what you got to be careful with when
27:11
you're dealing with somebody else's insurance and an insurance adjuster. Let me ask you
27:15
this, and Tom Peyton's with us to the Peyton Law Firm in Nitro three
27:17
or four three four five fifty eight fifty eight. Maybe you have a question
27:21
along that line three or four three four, five, fifty eight, fifty
27:23
eight. So you know, a lot of people have the same insurance companies.
27:27
But but sometimes that's not easy, that's hard to understand. So yeah,
27:32
I mean obviously, I mean, like there are so many large insurance
27:36
companies. Actually, when you see different names of different companies, a lot
27:38
of times their own owned ultimately by the same legal entity. They just have
27:44
different branches. And so yeah, it's it's on you. Like I could
27:48
rear end Jeff Jenkins and we both have State Farm insurance, so then it's
27:52
well, that is my insurance companies that, yeah, but they represent this
27:57
suggested represents Tom Payton you, and so you still have that average serial attitude.
28:03
Now, if you have your own claim, your collision or some kind
28:07
of first party claim where you have rental under your own policy, then you're
28:11
going to deal with a State Farm adjuster that's not the same one that's representing
28:15
me and my interests. So you'll have but you know, they kind of
28:19
are supposed to segregate those in a way. And so you have your adjuster
28:22
and then I have my adjuster, even though they're all for the same automobile
28:29
insurance company. And so yeah, that's a difficult, and then underinsured uninsured
28:33
is even more difficult to understand because that's coverage you pay for. But if
28:37
there's no agreement, then the adjuster on your own policy is actually basically taking
28:45
the position of the person that caused the accident, and they're generally arguing that
28:49
you don't have as bad injury as you say you do for examples, so
28:52
you have those unamics as well. But yeah, it's hard to you know,
28:57
navigate through a lot of that for lay people. And so you know,
29:03
we don't do a whole lot of just pure property damage claims because it
29:04
doesn't make any sense. But usually if people call us in an email,
29:07
we're gonna walk them through the process here in ten fifteen minute conversation and they
29:12
carry on on their own from there. All right, three or four three
29:15
four five fifty eight fifty eight three or four three four or five fifty eight
29:21
fifty Tom Peyton with us of the Payton Law Firm in Nitro. We covered
29:25
Bob Huggins this hearing earlier this week. This is you know Metro News was
29:29
there. This is well, we're gonna take a call first four and go
29:30
to that. All right, that's good Matt's on the line. Matt,
29:33
you're on with Tom Payton. Go ahead, Matt, counselor how are you
29:36
today? Good? Good morning, Matt. I could I have a funny
29:40
question. I know it's YouTube era and you have these first these people who
29:45
videotape police officers. And I was actually in Dunbar a couple weeks ago,
29:52
and I was I witnessed an auto accident and I actually gave my sentimens to
29:56
the police and my brother, uh, that's a public defender with the federal
30:02
government, and he told me I should have never talked to the police.
30:06
And I thought I was doing the right things and I so that's why I
30:10
did. But he said I should never talk to the police. I wanted
30:11
to get your thoughts on that. So you were involved in it or you
30:14
were simply a witness. I just witnessed it, Okay, Yeah, I
30:18
mean I don't see any problem with that, wouldn't That would not be my
30:22
attitude. First of all, if you're just a witness, I mean,
30:23
I don't think you can be compelled to be a witness. So for example,
30:29
if you would have just kept on driving, I mean, there certainly
30:30
wouldn't be any consequence to that. I was that I was out of the
30:34
car and I was waiting at the local um uh like a d MTV down
30:38
in Dumblar And that's when I witnessed it, and I told the police everything
30:42
I saw, and he said, well, I love the ladies saw something
30:45
different. I was like, hey, look, I'm just telling you what
30:45
I call right, I think it's the well, I mean, I'm not
30:51
sure that's a real legal question that there's certainly you know, from a legal
30:55
standpoint, I don't really see any detriment and you talking to the police,
30:57
So I mean unless you're approaching him and you're publicly intoxicated or you got contraband
31:03
on your then you know, as a defense lawyer, I would say,
31:06
no, don't go talk to the police. Into that's new. But that
31:08
wasn't your scenario. So I think just giving a statement as a witness to
31:12
me, I think that's the moral thing to do. You don't really have
31:15
a legal obligation to do it. And now practically what it can do for
31:22
you, I mean is you know, you can end up being subpoened later
31:26
and have to attend a depth position or maybe that's what his brother meant,
31:30
right, that's what I mean it you may have created some practical inconvenience for
31:34
you in the future because you did that, But I mean, that's that's
31:40
you know, we have to have witnesses for cases, so I mean,
31:41
if you you know, of course, I would more likely encourage witnesses to
31:45
come forward so we can get all the facts we can about how an axent
31:48
happened. But yeah, that's the only Now completely different if you're if you're
31:52
some potential criminal liability, then you know it's not the right answer every time.
31:57
But of course you have a right to stand, isn't. You can
32:00
never be compelled to in a criminal context to make statements at all to government
32:07
officials, and so then generally i'd say that you need a lawyer with you,
32:13
or you better be real careful how you make a statement if there's some
32:15
potential criminal liability. But as far as just being a witness, no,
32:20
And even now you're in an automobile accent. I mean, I guess if
32:23
it was your fault or something and you don't want to give a statement to
32:27
the officer, they can't compel you to give a statement. But the report
32:30
will be completed and it will probably have the other person's statement in it,
32:34
so then it will probably look conclusively like it was person a's fault if they
32:39
don't give a statement. But I don't think you can Just to say never
32:44
talk to the police is much too broad a statement for me to endorse,
32:50
and I wouldn't say that. So all you've done is being a witnesses.
32:52
You might have inconvenienced yourself if you have to go and be subpoenaed as a
32:57
witness later. Now, once you give that first statement again, nobody if
33:00
lawyers call you that's represent one of the two people, or insurance adjusters,
33:04
you don't really have a duty to talk to them, and nobody, at
33:08
least in this context, lawyers can't just issue subpoenas. There's got to be
33:12
a case filed first, a lawsu filed, not just to claim, and
33:15
then they can issue a subpoena. And then as long as you know it's
33:19
done correctly, you have to show up where the subpoena asks you to show
33:22
up, and then you have to answer questions under oath. But you don't
33:24
have to just because you gave an initial statement answer calls from insurance adjusters or
33:30
lawyers or anything. You have no duty to do that, you know it
33:34
might help you if you do, it might get you out of a deposition
33:36
or at being subpoenaed. But otherwise, from here you just wait and see
33:39
if you get a subpoena, and if you do it's not you don't want
33:43
to try and what they call quash the subpoena because of inconvenience or something.
33:46
Then you just show up and testify. No, I think it's the right
33:52
thing to do, as long as you don't mind putting yourself in a position
33:54
where you're going to be potentially inconvenienced as a subpoena witness somewhere down the line.
33:59
Yeah, okay, I appreciate it. Good question. Yeah, Yeah,
34:02
that's just a there's all different contexts. Of course, he's I think
34:06
he said his brother was a public defense for the federal system. So yes,
34:09
in that context, certainly, the most careful thing if there's a crime
34:16
being investigated is and you think there's even a slight chance you could ever be
34:24
trout of the crime, would be to not make a statement until you talk
34:28
to an attorney. Now, in practicality, first of all, police are
34:31
trained to get statements, and there's different methods they can use that aren't illegal.
34:37
It might be a little persuasive, but unless the statement they extract from
34:42
somebody is basically an involuntary statement, because what the police did was so enticing
34:49
that it made the statement untrustworthy and and in session, in essence an involuntary
34:54
statement by the person. So he's because the police training and just the way
35:00
people are, you get a lot of people that give statements. You know,
35:05
I don't do a lot of crumbal defense anymore, but when the police
35:08
try and take a statement from the potential defendant, I'd say they get a
35:12
statement eighty percent of the time, because you know, when somebody's asking you
35:15
a question, when it's a law enforcement officer or something else, you just
35:17
feel obligated to answer. It's kind of weird for normal people to say,
35:22
well, I'm standing silent, not talk, And then the officer asked again
35:27
and again. He keeps saying the same thing, because at least around here
35:30
locally, people tend to tend to want to help others. And when you
35:32
get asked a question, you want to answer, but you don't have any
35:36
and if you stay you want to stay in silent, or you want to
35:38
talk to a lawyer that can never be brought up at trial. You know,
35:42
I can't tell a jury. Well, yeah, we tried to question
35:45
Tom Peyton about this breaking the entering and then he said, no, I
35:50
want a lawyer and he said, no, I'm standing silent. Can't tell
35:54
it that that type evidence very rarely, certainly basically can't be brought up to
36:01
a jury if you ever went to trial because of potential president. Yeah,
36:06
because you have a constitutional right to remain silent, and the fact that you
36:08
you asserted that right is not relevant to the jury, and so they can't,
36:15
you know, bring that before a jury. And if you don't,
36:17
that's why you see, oh, probably eighty I don't know what the percentage
36:22
is. High percentage of criminal cases the defendant ever testifies, and when they
36:27
don't, the jurors told five times over that whether the defendant testified or didn't,
36:31
you can't that cannot be a factor when you go back to deliberate.
36:35
Now. I think jurors listen to that now and it's it's emphasized over and
36:38
over again, so they know they're told, you know, if you don't
36:43
paydence in any other instructions, then you know you can't go back in the
36:46
jury room and start saying, well, well, I don't know. He
36:50
might not be guilty, but Tom didn't take the stand of defend himself,
36:52
so he must be guilty. That's how does that happen in jury bought in
36:57
celebrations. I don't know, but it's not supposed to and they're told over
37:00
and over again you can't use silence. Go for seven five five five five
37:05
five six. You can certainly stop by if we're available, we'll come out
37:08
and talk to you, and then you know, our staff can answer a
37:10
lot of basic questions as well. And then if you're not much on talking
37:15
on the phone or getting out and stopping by, then our website is a
37:19
great place to go Peyton Law Firm dot com. It's Peyto and Lawfirm dot
37:23
com and you can submit a questionnaire and it goes right to our computers via
37:28
email. And if you don't hear back from us, either call and follow
37:32
up or just pop another another email, because we do try and respond our
37:37
emails the same day or within the next day or two. The question you
37:39
don't get to answer, it is a question you don't ask. That's right,
37:42
right, and no harm in doing it. Lawyers aren't that bad.
37:45
Most people leave my office, so that was that was better than going to
37:47
the dentist or going to the doctor, and so we're trying to make it
37:51
that way if we can exactly. Not all visits are pleasant, but most
37:54
of them are and rather harmless. So don't hesitate to give us a call
37:59
or an EMAI if you have a question. Okay, sounds good. Tom
38:01
Peyton of the Peyton Law Firm in Nitro seven five fifty five fifty six three
38:07
or four seven five five fifty five fifty six. Tom, Thanks good seeing
38:13
you, you two, See you next time. All right, see you
38:15
next time. It's Tom Peyton, the Peyton Law Firm in Nitro. Stay
38:17
tuned. Coming up next is ABC News. Then we've got a local news
38:21
update. Dave Isolans next with five eighty five. This is five aight WCHS
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