AREAS OF PRACTICE 2017-11-17T23:16:05+00:00

AREAS OF PRACTICE

PERSONAL INJURY

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A personal injury case involves situations in which a person is physically or mentally hurt due to someone else’s negligence. Personal injury claims also include wrongful death that occurs when a person is killed as a result of another’s negligence. In a personal injury case, money damages are paid to an injured person by the person or company that is found to be at fault for causing the injuries or death.

smashed car with broken windshieldA person that is injured by a negligent third party can recover damages for medical treatment, lost income as a result of being injured or killed, pain and suffering, emotional distress, loss of enjoyment of life, and loss of consortium.

Downes, Tallerico, & Schwalm Law Firm handles all types of personal injury claims which include:

• Car or Truck Accidents
• Motorcycle Accidents
• Airplane Accidents
• Dog Bites
• Slips and Falls
• Accidents involving motor vehicles injuring or killing bicyclists or pedestrians
• Products Liability Cases

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CRIMINAL DEFENSE

We pride ourselves on being able to defend the cases others won’t because we can provide the defense others can’t. As a firm we handle the following issues:

  • Felonies
  • prosecution and defense binders on a deskMisdemeanors

  • DUI

  • Juvenile

  • License Revocation

  • Fish and Game Violations

  • Probation Violations

  • Traffic Violations

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FAMILY LAW

 Family Law is a broad area of law. Downes, Tallerico, & Schwalm Law Firm handles a variety of family law cases, such as:
• Divorce
• Dissolutionfamily law title on old book with gavel on top
• Domestic Partnerships
• Legal Separations
• Custody
• Custody Modifications
• Child Support
• Child Support Modifications
• Adoptions
• Child in Need of Aid cases
• Guardianship of Minors

Divorce: In the State of Alaska, if you file for a divorce, the court will fairly and equitably divide the martial assets and debts. Marital assets are defined as property that was accrued during the marriage. This can include retirement accounts, benefits, savings accounts, tangible assets, vehicles, real estate, and businesses. In some circumstances, property or debts that were accumulated when a couple co-habitated prior to marriage can also be divided. If there are children that were born or adopted during the marriage, the court will determine legal and physical custody of your children under what is called the “Best Interest Factors” under AS 25.24.150.

Dissolution / Uncontested Divorce: Married couples can file a dissolution or an uncontested divorce action if they agree on all aspects of the division of marital assets and debts, and if they agree to all terms regarding legal and physical custody. However, it is extremely important that you have an attorney review any dissolution or uncontested divorce paperwork prior to signing or filing the paperwork with the court. Many mistakes can be made in a dissolution or
uncontested divorce that cannot be changed after a dissolution or uncontested divorce is finalized. Consulting with an attorney and having them review the paperwork prior to finalizing could save you tens of thousands of dollars in the future.

Adoptions: Downes, Tallerico, & Schwalm Law Firm, LLC also handles adoptions. We specialize in private adoptions, adoptions through Office of Children’s Services, and step-parent adoptions.

Child Support: Child support can be modified if there has been a 15% increase or decrease in the support amount. A parent is entitled to a yearly review of the other parent’s income to ensure they are receiving the correct amount of support. If you have a child support modification case, Downes, Tallerico, & Schwalm Law Firm, LLC can request income information, calculate the proper amount of support, and file the necessary motion or opposition to modify child support.

If you have a family law question, call Downes, Tallerico, & Schwalm Law Firm today.

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BUSINESS FORMATION

Whether you need advice on choosing the right business organization, or would like assistance forming your new business, Downes, Tallerico, & Schwalm Law Firm, LLC can help. With the assistance of your Certified Public Accountant, Downes, Tallerico, & Schwalm Law Firm, LLC can advise you as to whether you should be a sole proprietor, Limited Liability Company, or corporation. We can even draft and file all of the necessary business formation documents for you.

spreadsheet with business plan title on topHiring Downes, Tallerico, & Schwalm Law Firm, LLC from the start will save you time, effort, and money. Not forming the proper business entity could expose you to personal liability for the acts of your business. Downes, Tallerico, & Schwalm Law Firm, LLC will ensure that you have all of the proper business formation paperwork filed with the state and will advise you regarding any business licenses and insurance coverage you may need for your new business.

If you would like help forming your new business, contact Downes, Tallerico, & Schwalm Law Firm, LLC today.

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WILLS & ESTATE

A last Will and Testament is a legal document by which a person expresses their wishes as to how they want their property distributed upon their death. A Will also legacy typed on white paper with typewriter bar belowappoints an executor, otherwise known as a Personal Representative, to manage their estate and distribute their property according to their Will.

Wills are especially important for people with minor children, as they do not only distribute property upon a person’s death, but can appoint a guardian to care for their minor children in the event both parents pass away. A parent with minor children can also set up a trust within the Will that names a Trustee to manage the money and assets that they leave their children until their children reach a certain age.

An important part of estate planning is having an Advanced Health Care Directive (sometimes referred to as a Living Will) and a financial Power of Attorney. A Health Care Directive allows you to state your wishes for health care and appoints an agent to make health care decisions for you in the event you are unable to make those decisions for yourself. A financial Power of Attorney appoints someone to “step into your shoes” to conduct certain financial and legal transactions in the event you are unable to conduct those transactions yourself. A Power of Attorney can be effective either as of the date of signing the Power of Attorney or upon a person’s incapacity.
Advanced Health Care Directives and financial Powers of Attorney are only valid and in effect while you are alive. Once you die, your Will goes into effect and dictates what happens with your money and assets.

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PROBATE

Probate is how your assets are distributed after you die. If you have a valid Will, your Will appoints a Personal Representative (also known as an Executor) and states how you want your assets to be distributed upon your death. If a person dies and has a valid Will, it is called a testate estate.

legacy typed on white paper with typewriter bar below

If you do not have a Will, your assets will be distributed according to Alaska law. The law also outlines who has priority to be appointed the Personal Representative of the estate. The Personal Representative gathers a decedent’s assets and distributes them according to the law. When a person dies without a Will, it is called an intestate estate.

There are two types of probate: informal probate and formal probate. Informal probate is a court process that allows the Personal Representative to transfer the property of a person who died to the heirs that are supposed to receive it with minimal court supervision or oversight. This is the most common type of probate. Formal probate is a court process that allows the Personal Representative to transfer the property of the decedent to people who are supposed to receive that property with more court involvement. Formal probate is used in cases where someone challenges the validity of a Will, where there are disputes between heirs, or the Personal Representative needs to be supervised by the court. Formal probate can result in litigation and can be expensive.

Both informal and formal probate have many requirements and steps that Personal Representatives must follow. If a Personal Representative does not follow their duties and the requirements set forth by law, the Personal Representative can be held personally liable. As such, it is important to have an attorney help you through the process to ensure it is done correctly.

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LANDLORD TENANT

The Alaska Uniform Residential Landlord & Tenant Act is a set of statutes (laws) that govern the rental of residential property. These statutes dictate both the landlord and the tenant’s obligations, and outline what is and is not allowed in a landlord-tenant book title on old book with gavel on top on a deskrental agreement.

In the event a tenant violates a lease, the Landlord & Tenant Act requires that the landlord provide the tenant with a written “Notice to Quit”. A Notice to Quit outlines the specific violations and allows the tenant a set amount of time to correct the violations. If the violation is not remedied within a certain amount of time, the landlord can then file an eviction, which is called a Forcible Entry and Detainer (F.E.D.). In certain circumstances, the landlord does not have to allow the tenant the ability to remedy the violation, and can file an eviction if the tenant does not move out within 24 hours.

In the event that a landlord does not fulfill their obligations under the Landlord & Tenant Act, there are certain remedies that tenants can pursue, such as termination of the lease, damages and injunctive relief.

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CONTRACT DISPUTES

A contract is a voluntary arrangement between two or more parties that is enforceable by law as a binding legal agreement. In order for a contract to be valid, there are six requirements: 1) an offer 2) acceptance 3) consideration (usually means something of value has to be exchanged, such as cash, services, or goods for something else of value) 4) mutuality of obligation 5) competency and capacity, and in certain circumstances, 6) a written instrument.

When drafting or entering into a contract, it is important to have an attorney review the contract not only to ensure its validity, but also to make sure that the man in suits hand signing papers on a deskintent of the contract is clear, and that it contains all of the necessary requirements. If the terms of a contract are ambiguous, the court can hold it against the drafter.

A contract dispute usually occurs when an agreement set forth in a contract is broken. This is also known as a breach of contract.  When there is a breach of contract, the options are to enforce the contract or receive compensation. The ability to enforce the contract or receive money for the breach of contract depends on the type of breach. There are two types of contract breaches: material and non-material. A non-material breach is one that pertains to a minor detail of the contract, and is less serious than a material breach. A material breach occurs when the failure to perform a term of the contract strikes so deeply at the heart of the contract that it renders the agreement irreparably broken and defeats the purpose of making the contract in the first place.

If you are entering into a contract it is important to have an attorney review the contract to ensure that it will be a valid and enforceable contract that contains all of the necessary terms required to enforce your agreement. If you are involved in a contract dispute, an attorney will be able to advise you regarding the type of breach that has occurred, whether you have any remedies available to you under the law, and will help you to pursue or defend a breach of contract claim.

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APPEALS

In certain circumstances, a person is required to have an administrative review of their case or claim before filing a lawsuit in court. If a person participates in an administrative review and disagrees with the administrative decision, that person may then appeal the decision to the Alaska Superior Court if the decision was made by a state administrative agency. If the decision was made by a federal administrative agency, the appeal would have to be filed with the Federal District appeal typed on white paper with calligraphy pen hoveringCourt.

In cases where administrative reviews are not required, a person may proceed with their criminal or civil case in either District or Superior Court, also known as the “trial courts”. When a trial court makes a decision that is invalid or questionable under the law, a person has the right to appeal the trial court’s decision to a higher court.

If the District Court decides a case, an appeal can be brought before the Superior Court, or in some criminal cases, an appeal can be filed directly with the Alaska Court of Appeals.

In Alaska, all criminal cases are appealed to the Alaska Court of Appeals. The Alaska Court of Appeals does not hear civil cases. All criminal defendants have the right to appeal their case to the Alaska Court of Appeals. If the Court of Appeals issues a decision that a criminal defendant believes is invalid or questionable under the law, the defendant can petition the Alaska Supreme Court, which is the highest court in Alaska, to review their case. The Supreme Court then decides whether to grant the defendant’s request to hear the appeal from the Court of Appeals. The Alaska Supreme Court’s decision to hear a criminal appeal from the Court of Appeals is discretionary, and not all petitions are granted.

In civil cases, parties have the right to appeal decisions from the Superior Court to the Alaska Supreme Court if a party believes that the Superior Court made a decision that is invalid or questionable under the law.

In certain circumstances, a state court decision can be appealed to the Federal Court, but only when there is a federal question involved. A federal question involves a violation of the United States Constitution, federal law, or a treaty to which the United States is a party.

If you want to appeal a decision, it is imperative that you see an attorney immediately, as there is short period of time in which you can appeal a decision. If you do not appeal within the required timeframe, your appeal will be deemed waived and you will not be able to file an appeal. An attorney can advise you regarding the required deadlines for filing an appeal, determine which court you should to appeal to, and can draft the appeal for you.

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