Memphis Bar Association

Frequently Asked Legal Questions & Answers

 The questions are grouped by areas of the law. Click on a category below to go directly to that section.

General Legal Help
Advance Directives (i.e. living will, power of attorney)
Alternative Dispute Resolution
Criminal
Divorce & Family Law
Labor & Employment Law
Landlord/Tenant Law (e.g. eviction)
Real Estate
Foreclosure/Mortgage Default
Social Security
Wills & Probate
Bankruptcy
Debtor/Creditor Rights

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General Questions

Courtesy of the Litigation Section of the Memphis Bar Association

Click here to download information from Memphis Area Legal Services Inc. regarding General Sessions procedures.

What is litigation?

A controversy before a court or a “lawsuit” is commonly referred to as litigation.  If it is not settled by agreement between the parties it would eventually be heard and decided by a judge or jury in a court.  Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual circumstances.

The term litigation is sometimes used to distinguish lawsuits from alternative dispute resolution methods such as arbitration in which a private arbitrator would make the decision or mediation which is a structured meeting with the parties and independent third party who works to help them fashion an agreement amongst themselves. 

I want to file a lawsuit.  What is the first step?

The first step in filing a lawsuit is selecting and meeting with an attorney to prepare the lawsuit.  The attorney will be integral to your lawsuit because he or she will assist you in investigating the case, determining what parties may be liable to you, and selecting the theories of liability that will be included in the lawsuit. 

Once this process is completed, the attorney will then file a complaint in court.  The complaint will name you as a plaintiff and the parties that are allegedly at fault as defendants.  The complaint will state the facts of your claim and legal theories of liability you are pursuing. 

How much will it cost to hire an attorney?

Every attorney is free to set his or her own billing method, and before you hire a lawyer, it is very important to understand how the attorney charges.  There are many different types of billing methods, including:

* Contingency fees where you only pay the attorney if you win the case. However, you are still required to pay court costs and other expenses.

* Flat one-time fees

* Hourly fee

Usually the attorney will determine which method is best by the type of litigation in question. 

Should I tell my lawyer everything even if some of it may hurt my case?

After you have retained a lawyer, your conversations with your lawyer are protected under the attorney-client privilege.  No one can put your lawyer on the stand and make them testify as to what you have told them.  You should note that initial consultations with a lawyer are not generally considered protected by the attorney-client privilege. 

 What do I do if I am served with a complaint?

You should seek the advice of an attorney immediately.  You will have a certain time in which to answer the complaint.  If the time period elapses prior to your filing an answer, you will potentially be in default and lose the case. 

 What are the differences between a criminal case and a civil case?

Our legal system recognizes two different kinds of legal cases: civil and criminal.  A civil case is one in which a person who has a complaint may bring a legal action to protect his or her interests or collect money damages.  The person claiming relief is called a plaintiff, petitioner, or complainant.  The person against whom relief is sought is called a defendant or respondent.  In a criminal case, the federal, state, or municipal government brings the action in the name of its citizens against a defendant who has been accused of committing a crime.  Thus, criminal cases are prosecuted on behalf of the people of the State of Tennessee or all U.S. citizens, for example.  The people are represented by a prosecuting attorney such as the local county District Attorney General, the Attorney General for the State of Tennessee, or the United States Attorney General. 

 In a criminal case, the defendant is charged with a crime against society such as murder, burglary, robbery, or theft.  The legal action is initiated by the prosecutor who decides whether to bring charges and what charges to bring.  In a criminal trial, a prosecutor must prove the defendant's guilt beyond a reasonable doubt.  While this does not mean proof beyond all possible doubt, it is a heavier burden of proof than required in civil cases. 

In a civil case, it is the individual who feels wronged or injured (the plaintiff) who decides whether to file a civil suit.  When damages are sought, the plaintiff decides how much to demand in damages, although the judge or jury will decide whether and how much a plaintiff can recover.  In a civil case, the plaintiff cannot seek to have a defendant jailed unless the defendant has violated a court order. 

How do I commence a civil lawsuit in Tennessee?

A civil lawsuit is commenced when a plaintiff serves a complaint and a summons upon the defendant.  The complaint is the legal document that sets forth the alleged misconduct by the defendant.  The summons is the legal document that directs the defendant to appear before the court.

 How do I prepare for a visit to a lawyer’s office?

When you make your appointment, ask the lawyer some questions such as what papers they will need you to bring, whether you should be prepared to pay a retainer or filing fee, and whether you should bring anyone with you.

     Be prepared to briefly outline your problem for the lawyer.  Write down some questions before you visit the lawyer so that you will not forget to ask something important. 
     Check out our Tips on How to be a Responsible Client.

 How do I choose an attorney?

Choosing an attorney should be done very carefully with much thought.  You will work with an attorney closely during your case and you want to be sure that the attorney is someone with whom you will be comfortable working with.  You should take the time to find out about the attorney as a professional and as a person. 

Most importantly, you need to select an attorney who is well qualified to handle the issues involved in your case.  Most lawyers specialize or limit their areas of practice.  It is important to find a lawyer whose practice specializes in the area involving your legal claims.  Ask the lawyers about their experience in this field. 

Click here to obtain assistance locating a lawyer who fits your needs. Also, visit our page on What to Look for an Attorney.

What is a contingency fee?

A contingency fee sets the amount of the fee dependent upon the result obtained in terms of compensation to you.  A contingency fee is a percentage of the total recovery in the case.  If no recovery is had, the attorney’s fee is zero.  The contingency fee allows people with insufficient funds to hire an attorney who does not work on an hourly fee, and receive access to the courts. 

 What is General Litigation?

Ultimately every legal issue can end up in court.  The term general litigation refers to litigation and all other aspects of law which may or may not be litigious in nature such as wills/estate planning, incorporating businesses, contract drafting, real estate transactions, and more.  Typically, however, litigation is what happens when a case ends up in court. 

 I’ve been subpoenaed for a deposition.  What is it and what do I do?

In most civil actions, both parties have the right to engage in "discovery" to gather facts from the other party, and sometimes from third-party witnesses. 

A deposition is a type of discovery in which the lawyer for a party takes your testimony.  The proper purpose of a deposition is to gather background and evidence and lock in the stories of the parties and the witness.

 At the deposition you will be put under oath, just as you would be in a court, and a lawyer can ask you a wide range of questions relating to the case.  The lawyer's questions, and your answers, will be taken down by a court reporter, and possibly be tape recorded and/or video taped.

Your deposition, when properly handled, can go a long way in assisting your lawyer in the litigation, either by way of settlement or at the trial.  What you do at the deposition can help you or hurt you, depending upon your attitude, truthfulness and appearance.

 Deposition Tips

 1.  You have the right to have your lawyer present at the deposition, and you definitely should.  Your lawyer will help you protect your interests.

 2.  Your lawyer should spend time reviewing the facts with you and preparing you to give a deposition.

 3.  Listen carefully to each question and then answer it.

 4.  Do not volunteer anything or raise other issues.

 5.  If you do not understand the question, ask for it to be restated.  Your lawyer may object to questions that are vague, improper, misleading, or irrelevant in that they do not relate to the specific case.

 6.  Your lawyer will prevent the other side from using the deposition to harass you or turning it into a fishing expedition.

 7.  At the end of the questioning by the other side, your lawyer can ask you questions that may bring out, clarify or better present your side of the story.

After the deposition is over, the court reporter will type out the transcript of the questions and answers, and all parties will receive copies.  You will have the opportunity to review the record and make corrections, but generally the reporter's word will prevail.  (In major cases, where cost is not an object, both sides may have their own court reporters present.) The original may be filed with the court, and become publicly available, depending on the rules of the court or state.

 How long before the lawsuit will be finished?

There is no way of knowing how long a lawsuit will last.  Some lawsuits are disposed of very quickly, while some take years to complete.  After the pleadings (complaint and answer) have been served, there is a discovery process.  This is the period when the parties obtain all of the facts of the case.  The length of this process depends on the complexity of the case.  The overwhelming majority of all cases are settled long before trial. 

 What is a subpoena?

A subpoena is a written court order requiring the attendance of the person named in the subpoena at a specified time and place for the purpose of being questioned under oath concerning a particular matter which is the subject of an investigation, proceeding, or lawsuit.  A subpoena is issued by someone authorized by law, usually by the attorney for a party to a lawsuit, but very often issued by someone authorized to conduct an investigation such as the State Attorney General or local District Attorney. 

In addition to requiring the attendance of a person, a subpoena may also require the production of a paper, document, or other object relevant to the particular investigation, proceeding, or lawsuit.  Usually a subpoena directs the person named to appear and give testimony in open court.  However, certain subpoenas require the person to appear before a person or tribunal other than a court, such as a grand jury. 

A subpoena will identify the person who issued the subpoena as well as the general nature of the proceeding to which it relates, although not necessarily the precise subject matter of the proceeding.  If you are served with a subpoena, you cannot ignore it.  If you do, you risk being held in contempt of court, even if the subpoena was not signed by a judge. 

When you are served with a subpoena, you must do one of two things.  You must either comply with the subpoena or, if you have an objection, you must apply to the proper court for permission to vacate or modify the subpoena.  Such an application would ordinarily require the services of an attorney. 

In considering what to do if you are served with a subpoena, you should keep two things in mind.  First, if you feel that you may be a target of a criminal investigation or that your testimony may implicate you in criminal activity, however remote, you should immediately consult an attorney.  Second, if there is any question in your mind about the validity of the subpoena, you should consider challenging the subpoena by applying to the proper court before you appear at the time and place designated by the subpoena. 

If your only objection to the subpoena is that it may be difficult or impossible for you to appear at the time and place indicated, you should contact the attorney or person who issued the subpoena.  Usually that person's name, address, and telephone number will appear at the bottom of the subpoena.  It may be possible to postpone your appearance or to arrange a more convenient time for you to appear.  If other arrangements cannot be made, or your appearance will jeopardize your health or your employment, you should seek the services of an attorney.  

My neighbor hired two men to trim her trees. While doing so, the men dropped a limb on my fence and damaged my property. The men do not have insurance but my neighbor does. Can I hold my neighbor responsible and should her insurance pay for the damage, or should the men who did the damage be held responsible?

The men are the agents of their principal, your neighbor. Ask your neighbor to contact her insurance company. The insurance company may cover it and then go against the men, and set up a repayment plan for the men. This could keep it low key and provide for a repair with little emotion, confrontation or argument. Otherwise, if your neighbor does not contact her insurance company, you might have to file suit against your neighbor and the men who trimmed her trees. You would then worry about whether the men have the ability to pay and that is not a good prospect to be facing. Please note that there are time limits set in the insurance policy for filing claims and time limits set by statute for filing a lawsuit. If you plan to act, do so quickly. 

The individuals in the rental home next door to me are very loud and disruptive, especially late at night. I have spoke to them about this, and as a result, they called the cops accusing me of threatening them. The next time they were loud, I called the cops on them but that only escalated their behavior and has resulted in them cussing and screaming at us whenever we see them, even with our kids present. I am now scared to do anything else about the situation. What can I do?

If backing off does not do the trick, and it probably won't, you must be proactive.
Recommend that you do the following:
1) Get video and audio proof, in the event this escalates and you end up in court or worse, if the neighbor calls the police on you.
2) Contact the homeowner and explain the situation to him/her and be willing to discuss it with them in person. Take your video/audio proof with them. Follow this up with a letter and keep a copy.
3) Continue to call the police if they are breaking the law.
4) Citizen's Dispute at 201 Poplar may be helpful in resolving these issues.
5) At last resort, contact an attorney to file suit, but be mindful that the expense will be substantial.

DO NOT go on their property or give them any reason to retaliate with legal action.

DISCLAIMER:  The preceding appears courtesy of the Litigation Section of the Memphis Bar Association and other volunteer attorneys, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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 ADVANCE DIRECTIVES

Click here to download information from Memphis Area Legal Services Inc. regarding Advance Directives (i.e. living will, power of attorney).

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 ALTERNATIVE DISPUTE RESOLUTION

 Courtesy of the ADR Section of the Memphis Bar Association

 What is Alternative Dispute Resolution (ADR)? 

The idea behind ADR is that people are given the chance to resolve or settle their disputes with others by agreement with the assistance of a trained facilitator, who is known as a “neutral.”   ADR is an umbrella term that describes various processes to resolve disputes, such as mediation, case evaluation, arbitration (binding or non-binding) or a judicial settlement conference.   In Tennessee if you have a lawsuit pending in the Circuit or Chancery Courts, the judge may order you to participate in one of these processes.

 What is arbitration?   

“Arbitration” is a process by which a neutral third party, often a lawyer, will hear the facts of your case, through witnesses and other appropriate proof, and then render a decision in a manner similar to that which a judge would render.   Arbitration can be “binding” meaning that the decision of the arbitrator is final if not appealed to the court, or “non-binding” and issued as an advisory opinion to you to assist you in evaluating your settlement options in a case.  Binding arbitration usually occurs only when all parties to the lawsuit agree that it should be binding, or when the parties have entered into a contractual agreement with each other specifying that disputes will be resolved by binding arbitration.  The benefits of arbitration are that a neutral arbitrator can be selected who has special expertise in the area of the dispute and often an arbitration can take place in a faster time frame than waiting to go to court.  

 What is mediation?  

Mediation is a process in which a trained neutral or a “mediator” assists the parties in negotiating a mutually agreeable settlement of their conflicts.  Mediation is a flexible process in which the parties are given the opportunity to make informed decisions.  Mediated agreements may satisfy interests and goals of the parties that court resolution by a judge or jury may not be able to provide.  The process is designed to be completely consensual and provides a forum to often overcome communication problems and other hindrances to resolution of disputes.   Resolution of a case through mediation often saves time, money, and feelings, and if agreement is reached on all issues, enables the parties to avoid a contest in court.   Most disputes, other than criminal matters or matters involving domestic violence, are appropriate for mediation.   The mediator is a trained person, often, but not always, a lawyer, who manages the process and makes sure that the mediation remains balanced and on track.   A good mediator has excellent communication skills, is a good listener and is able to keep the process on track.  Lawyers, who attend mediations often, are good referral sources for mediators.  Mediation is a completely confidential process and the mediator may only report back to the judge in your case that the matter settled or did not settle without any details.  Mediators do not function in a judicial capacity and are not there to render a ruling on your dispute.  Mediations can take place with or without lawyers present, depending on the parties’ need for legal advice during the process, as mediators are prohibited from rendering legal advice to the parties.  The cost of mediation is generally on an hourly or daily basis and varies from mediator to mediator. 

 Where do I find the Tennessee rules concerning ADR/ mediation and a list of approved mediators?  

Go to http://www.tsc.state.tn.us .  Click on “Programs and Services”and then “ADR/Rule31” for more information.

 DISCLAIMER:  The preceding appears courtesy of the ADR Section of the Memphis Bar Association, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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 CRIMINAL LAW

 Courtesy of the Criminal Law Section of the Memphis Bar Association

 What are my Miranda rights?

If you are subject to a “custodial interrogation,” (that means you are not free to leave) the police must inform you of your Miranda rights.  These rights are (1) you have the right to remain silent and not answer questions, (2) you have the right to an attorney and have him/her present during questioning, (3) you have the right to stop the questioning at any time, and (4) if you can not afford an attorney the court may appoint one to represent you.

 How do I get someone out of jail?

Generally speaking, everyone charged with a crime is entitled to a reasonable bond.  Once the bond has been set by the magistrate or judge, you may either post a cash bond with the clerk of the court or you can contact a bonding company.  The bonding company will charge you a certain percentage of the bond amount as a fee.  This fee is generally non-refundable.  Should the person you posted the bond for fail to appear in the court when scheduled, you may be liable for the entire amount of the bond. 

 Do I need an attorney if I am arrested or charged with a crime?

While you have a constitutional right to represent yourself, this is not usually the best course of action.  Should you decide to represent yourself, then you will be held to the same standard as an attorney and expected to know the rules of the court and the applicable law.

If you decide not to represent yourself, you can hire your own attorney if you have the money to do so.  If the court deems you indigent, it will appoint an attorney to represent you.

Can my lawyer take my criminal case on a contingency fee?

No.  Criminal defense attorneys are not allowed to take cases on a contingency basis.

 How do I find out when and where my case will be heard?

If you have an attorney, he/she should have that information and will provide it to you.  If you do not have an attorney, there are several very useful websites that have links to each of the courts and provide case information in addition to other information.

        (1) For case information in Criminal Court, General Sessions Court, and Juvenile Court, go to www.shelbycountytn.gov and click on “Courts and Criminal Justice.”   This site also has links to all of the local police departments (Memphis, Bartlett, Collierville, Germantown and Millington).

        (2) www.shelby-sheriff.org – This site has case information and includes jail information (click on “Who’s in Jail” to find booking information and photos), information on outstanding warrants and a procedure for paying county tickets on-line. The site also has links to the City of Memphis for information on paying tickets.

If I am stopped for driving while impaired (DUI), should I take the breathalyzer test?

Under Tennessee law, you are not required to take the test.  However, if you don’t take it, you will likely be charged with a separate offense of “refusal to blow.”  If convicted of that charge, your driver’s license will be suspended for one year.  If you take the test, it can be used as evidence against you.

 How do I get my driver’s license back?

Contact the City Court Clerk’s Office in the basement of 201 Poplar.  They can give you information about the “Drive While You Pay” program for city tickets.  Also, they can provide you with information on how to handle state tickets.

 Do I need an attorney if I have a traffic ticket?

No.  If you agree to the violation, you can sign the back of the ticket and mail your fine to the address on the back of the ticket or can use the City of Memphis link (if a Memphis ticket) found at www.shelby-sheriff.org to pay the ticket online.  If you decide to contest the violation, you can appear before the court without an attorney.

 DISCLAIMER:  The preceding appears courtesy of the Criminal Law Section of the Memphis Bar Association, whose contributions toward its content are greatly appreciated.  However, the summary explanations above are for general informational purposes only and are not intended as legal advice.  No attorney-client relationship is created herein.  As each is unique, specific legal advice should be sought for each situation in which legal advice may be warranted.

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