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George Floyd, Derek Chauvin, Caniglia v Strom, Aaron Roger's Contact

Outlaw Lawyer / Josh Whitaker & Joe Hamer
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June 2, 2021 12:00 pm

George Floyd, Derek Chauvin, Caniglia v Strom, Aaron Roger's Contact

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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June 2, 2021 12:00 pm

George Floyd, Derek Chauvin, Caniglia v Strom, Aaron Roger's Contact • (800) 659-1186

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Coming up on the Outlaw Lawyer, we're talking George Floyd, Derek Chauvin, the big Supreme Court case that just came down, Coniglia v. Strom, and Aaron Rodgers and his contract status in Green Bay.

Stay tuned. And now, the Supreme Court has said, unanimously, this was wrong. Fact-based. Your belief at the time doesn't necessarily jive with what the actual law is.

It's reasonable, informative. Now, if you take in facts and you think about them and you don't jump to an instant opinion, you're the outlaw. And now, Outlaw Lawyer with Josh Whitaker. You're locked in to Outlaw Lawyer.

That's right. Josh Whitaker is here, and we're going to talk all things legal. I'm Morgan Patrick, your consumer advocate. Josh, welcome in. Certainly an exciting time. First show, and let's just get some background.

Welcome. I'm Josh Whitaker, the Outlaw Lawyer, and I'm here today to talk to you about the law, how statutes, cases, things the Supreme Court does all affect our day-to-day lives. I am an attorney. I practice in North Carolina. I'm here today with my guest, Mr. Damian McCullers, who's also an attorney in North Carolina. Hello out there.

I'm glad to be here, man. First episode is going to be exciting. So me and Damian, the theory behind the Outlaw Lawyer comes from, I'm a big fan of old westerns and out in the old west, the outlaws were the ones that reacted poorly, reacted too quickly, did things without thinking them through. They needed money. They robbed a bank. They needed alcohol.

They stole the alcohol. The outlaw was the bad guy. And me and Damian have been lifelong friends, and we like to sit down and we're kind of on different sides of the political spectrum, but we're pretty reasonable attorneys who've been at it for a long time. And it's almost like now, if you take in facts and you think about them and you don't jump to a party line, you don't have an instant retort or an instant opinion. You actually take the time to think about stuff and be reasonable. You're the outlaw.

Things have flip-flopped. And so that's where the name the Outlaw Lawyer came from. So me and my guest today, Damian and future guests to the show, we're all attorneys and we're all sitting down to analyze things like we would a case, you know, take the fact pattern, look at how the law will affect different things, almost treat each situation like it's coming for the Supreme Court. And so that's kind of our thought process on this show. We want to be reasonable. We want to be informative and we want to be interesting. And so that's kind of our goal.

Yep. Um, a little bit about me, just as your guest, um, out there in podcast land, we were law partners for 17 years. And I think it's important that you guys know just kind of how we formed our friendship and our relationship and, and just kind of what the dynamics are. We what on my parents' back porch in 2004 sat down and decided after law school that we were going to start a firm. And we kind of did that. We had no money at the time.

No money, Zero dollars. We went, and it's the funny story that I tell everybody. We went to our first set of statutes were from the North Carolina surplus. That's right.

That's like 20 bucks. Well, let's say back it up even more. So me and Damien both were at Fred J. carnage middle school, Fred carnage middle school, and that in the, in the early nineties. So we grew up on the mean streets of Fred J. carnage middle school. And then I didn't see Damien in low in low high school. I was over at Garner. I went to state undergrad and I went to North Carolina central university. And then we met back at Campbell law school on the first day of law school.

They sit y'all together in a room so they can see what they're dealing with and me and Damien kind of figure out, you know, figure all this out. But, but yeah, once we graduated from law school, we wanted to form a law firm and that was back in oh, oh, four, oh four. Yeah. Which doesn't seem like it was that long ago.

It seems like it was yesterday, man. But, um, but yeah, we had no money. I think we had a pretty good idea. We knew how we wanted to treat people. We knew, we knew what we wanted to do. We wanted to be able to be in the courtroom, able to help people, the transactions and right. And be of service to people and not kind of be the stuffy old guys that kind of stereotypical things that people think about when they think of lawyers. I think we did a good job of that.

We had some fun, had a great practice, still have a great practice as far as Whittaker and Hamer. They're your law firm for life. So definitely check them out.

After that, you know, kind of built into five locations, Raleigh, Garner, Fuquay, Clayton and Goldsboro. That's right. So it's been a wild ride. It's been fun though.

That's right. I tell you guys, I just wanted to jump in and say, it's going to be a lot of fun. And I guess interesting to get into these discussions because there are so many cases that are out there that we see in the news almost on a daily basis that, you know, when you guys can kind of use your paintbrush and talk about those cases for our local listeners, I think it's going to go a long way just to kind of help explain some of the things that we see every day in the news.

I agree with you, Morgan. I, the first thing that I wanted to talk about is something that everybody's been talking about for a long time, but I wanted us to talk about, spend some time with the Derek Chauvin trial. Yeah. I mean, we kind of talked about it at most ourselves, just kind of at length and just kind of where things went and how they're going. And I did want to make just kind of the point that you and I, when we have the discussions, we're not having them for one side or another. We're literally just kind of sitting down, looking at the facts and just kind of making a determination based on our legal training as to what we see.

That's right. The interesting thing when lawyers talk about something like this is you really do your best to set the socially charged aspects, which are, which are, are important in their own right. But as an attorney, you set those aside, you look at what happens, you look at the video, you try to look at the testimony and me and, and Damien as a, as grizzled gray trial attorneys, we took time to kind of forecast what everybody was going to do.

And it was interesting on a professional level to see it play out. And so at the time of, of recording, you know, the jury has already had their say, and Mr. Chauvin was found guilty on all counts. Interesting Damien. I don't know if you've had a chance to look at it, but the, on the federal level. So the, you know, on the federal level, there's a, well, what was the charge? So it was a civil rights violation. I believe that has just come down. There was an indictment.

I want to say a day or so ago that, and it was not just for Mr. Chauvin as well, just saying that it was a civil rights violation as it relates to his freedom. When I say his, that means Mr. Floyd to not essentially be brutalized, but it's, it's going to be interesting. I mean, there's just, there's a lot of moving pieces. There's a lot going on with it. And it's just kind of, you know, again, like you said, it's interesting from a professional standpoint to watch it unfold just because we're looking at it strictly from that professional standpoint. When I, when I was watching, I don't know what you think about this, Damien.

This is a good question. I, when I was watching this trial, I saw the prosecution when they were asking witnesses to, to watch the video and of course testify to what they've seen, which, which as an attorney, that's what you want. You want them to testify to what they saw and what happened. But I saw them testify to a lot of, how did that make me feel?

Yeah. This was a case where I don't remember seeing this a lot where the prosecution would reach out and ask people, you know, what did that, what did that make you feel like? And, and you know, in, in trials and everyday trials, a lot of times that, that kind of stuff isn't important. That kind of stuff doesn't come in for very much, but I don't know if you saw that.

I saw a little bit of it. It's kind of up to, you know, the gatekeeper there and kind of what comes in and what doesn't. But yeah, I saw that it's, I guess from a, from a prosecutor standpoint, you want that to come in if you're trying to drive a point home.

And of course, from a defense attorney standpoint, you don't, if it's damaging to your client. So you kind of want to object if you can and give your grounds and tell your basis and rules of evidence of why it shouldn't and, and kind of go from there. So the defense, the defense on this one, they, they made a motion to change venue before the trial even got started, which was denied. I think the judge's theory there on denying that was this, the trial is going to be the same, no matter where we move it in Minnesota, right? You're going to get the same level of fairness, no matter where we move this in Minnesota, but that got denied.

And now I know there's a motion, you know, there's a motion. I can't remember if it was a motion for a new trial or a motion to, So there was an appeal, I think lodged. The appeal was saying that there was errors made by the judiciary, but I mean, we'll see. I haven't had an opportunity to actually read the appeal. So I don't necessarily want to speak on it cause I just don't know, but there definitely has been an appeal made and it's alleging errors of law, I believe.

Okay. And so the three other officers, their trials are still pending. They're a couple months away. I think that's set for August sometime. And I wouldn't be surprised if you see possibly some type of arrangement or deal made, just given that there's been a finding of guilty and that case went all the way to verdict. It would not surprise me. I mean, they may very well decide that they do still want to have their day in court, but it would not surprise me if, if you see some form of a plea agreement.

And I would say this isn't a great opportunity to kind of say just as well. And again, just as in keeping people informed, it is not just Derek Chauvin that has been indicted federally. It is the officers as well.

That's right. So there's, um, there's a lot, again, like I said, there's a lot of moving pieces. There's a lot happening, just kind of a lot to kind of keep your eyes on. And we'll keep talking about this one.

You know, we're going to be with you every week at the same time. And this is something we're going to keep watching because this is, this is interesting for attorneys. It's interesting for our society as a whole on how everything plays out. But as attorneys, it's, it's very interesting.

You're listening to Outlaw Lawyer. Josh Whitaker is your host and folks, we are going to talk legal each and every week. If you've got a question for the program, here's the number 800-659-1186. That's 800-659-1186. If you have a legal question for Josh Whitaker and of course, Whitaker and Hamer, you can call that same number and leave a message. 800-659-1186.

That's 800-659-1186. Coming up on the Outlaw Lawyer, we're going to discuss conically up these strong. That would be when your wife tells the police they can take your guns and you do not agree. Stay tuned. Outlaw Lawyer. We're back from the break. Josh Whitaker and Damian McCullers are in studio and we're talking legal each and every week.

Josh, take it away. All right. Thank you, Morgan. So next up for us, I want to spend a minute talking about Coniglia v Strom. So this is a Supreme Court, United States Supreme Court case. The oral arguments were heard a couple of weeks ago. Supreme Court came back with a unanimous decision and we'll tell you what that decision is. But Damian, what do you remember about these facts? So factually, it's pretty interesting.

I'm pretty sure someone out there in podcast land has been there. Mr. And Mrs. Coniglia were in a heated discussion, some may say an argument. And Mr. Coniglia, probably to his detriment, and I certainly don't advocate anyone doing this, went and retrieved his firearm, placed it on the table and said, just shoot me now and get it over with. And I think it's important here to say, so this was not a smart thing to do. Absolutely not. I'm sure it was a poor attempt at humor, probably born out of frustration.

I certainly wasn't there. And I don't know, but again, not a great thing to do, especially in a heated argument between spouses. So very stupid thing to do, but I think it's important, not a crime.

Not a crime. That's right. Well, as far as I know in Rhode Island, right?

Yeah. The facts that's important. This took place in Rhode Island. This took place in Rhode Island. I am not licensed in Rhode Island. I have no idea what the law is of Rhode Island.

I would venture to tell you that if this were to happen in North Carolina, I don't know that that would be a crime simply placing your firearm on the table. Well, what happened next? Afterwards I believe Mr. Coniglia had kind of gone out to kind of cool off maybe once he returned. I believe the Mrs. had contacted law enforcement, just checking on his whereabouts, I believe.

Yeah. I think if I go back, the wife left. So after he did that, the wife left and she spent the night somewhere else. I think he stayed.

And when she came back, he wasn't there. And so I think that's how the officers got called a welfare check kind of call. Yeah. Welfare check.

Just kind of checking in on them, making sure everything's okay. And so the off, I think the officers showed up, he was on the porch. They, it seems like at some point they there, maybe there was a threat to take, you know, take any firearms because they were worried he was having a psychiatric episode. Right. And he agreed to go to the hospital and get checked out. So they would not take his weapons.

Right. I think factually, that's probably important. I believe part of the discussion based off what I've been able to read is that his agreement to get tested, essentially been checked out was with the understanding that his firearms would not be taken. I don't even know if there's authority to do that again in Rhode Island, just to say, Hey, I'll go get checked out, just don't take my firearms. But there was some form of communication between law enforcement and Mr. Corniglia about that, which is probably, this is a great point to say our law enforcement has a huge, huge job to do sometimes in dealing with what could be a mental health crisis as opposed to an actual law enforcement issue. They, those men and women in uniform that put it on every day, they do a great job and don't necessarily always get a fair shake. That doesn't say that they don't make mistakes.

I certainly don't want to say that. I don't want to sound like I'm picking one side or another, but I think just as it relates to these particular facts, if you don't know what you're dealing with at that point, is it something that happened that is legal? Is it a mental health crisis that this person needs help?

And of course, it sounds like they wanted him to get help if he was having that type of crisis. So, I mean, there's a lot going on just in this right here. Yeah, that's very important, Amy, because we are not trying to paint law enforcement officers as the bad guy. It's unfortunate because a lot of the Supreme Court cases that we talk about have a law enforcement element.

It's kind of like this was, this was new. You're right. So, you know, as we get through the rest of the facts and we think about what the Supreme Court did here, this is kind of an odd situation where I think the officers were doing the best they could.

Yeah. And again, it just kind of lends itself back to doing the best they can with the factual situation. I want to make sure that I kind of flush out and say, whatever a decision is court-wise doesn't necessarily mean that people may personally agree with whatever that is.

And that cuts both ways. A lot of times, well, not even a lot of times, it should be all the time, lawyers, prosecutors, judges, everybody that's involved kind of in the criminal justice element in the system, they're looking to follow the rule of the law, whatever our legislature and the general assembly or the Senate House have put out as the law, they're following that, whether they like it personally or not. So I think that's important for laypeople to know that that's what we do day in, day out as attorneys, as prosecutors, as judges, whatever your role is in that system, you're following the constitution, you're following the law. That's what your oath says, that you're going to follow the constitution, you're going to follow the law.

And that doesn't mean that you necessarily like it, or you agree with it. It means that you're going to do what you're sworn to do. reading on that same line, reading into the facts more, it looks like he left and maybe even by ambulance, I can't remember, but he left to go get his psych. Mr. Coniglia left to go get his psych eval. And his wife is justifiably, it sounds like maybe still terrified. She did leave the house. She, but she asked, I think she's probably asking these officers for help, please help me. She invited them into the house, which they're, they can certainly mentor. Cause she was, I'm assuming she was an owner. She's an owner.

She's giving consent. So the officers haven't done anything wrong. And I think this was their solution to help a terrified wife, but they ended up confiscating his weapons, right? They get in the house, they confiscate his weapons. He passes his psych eval. He comes back, Hey guys, I did it. I'm done.

Everything's good. I always wonder if you have to get a psych evaluation, not to make light of it, but if you pass, it seems like they should give you something like a certificate or, but what do you, I mean, what do you get? Cause you're, you're, now you're treading into HIPAA violations and all kinds of stuff. So, you know, there, there are a number of facets that come along with that. So do you, I don't know that. And I'll talk about me personally, just to say that I don't know.

And I haven't had to have a psych eval, but I don't know that I would want to have to present documentation to you that I had one simply because you demanded it. I just don't know that that's, you ever you ever watched a lot of Simpsons. I've seen some Simpsons in my day. There's a Simpsons where Homer gets sent to the, I don't know what you call it. This, the psychiatric evaluation place, the hospital, you know, and he's in there with a guy who thinks he's Michael Jackson. You see that one?

I believe I did see that. Well, Homer is just going there to visit and he gets trapped in there and he finally gets released. And the way they tell him that he's not insane as he gets a, he gets a stamp on his hands and says, not insane. Gotcha. But I don't know if Mr. Coniglia got a stamp, but he shows up and he is, he is okay.

And so that's kind of what we're dealing with. So Mr. Coniglia sues saying his fourth amendment right was violated. And what is the fourth amendment?

What does it say? So you have the right to, for not to be unreasonably search and seized essentially. That's right. Your, your home is your castle and you have a right. And there's exceptions to this, right? But you basically, you have a right that a government official can't come in and search you confiscate stuff, use certain things against you. And there's tons of exceptions. The Supreme court has carved out and that makes sense. You know, if, if the law enforcement thinks you're doing something illegal and they go get a warrant from the judiciary, from a judge, you know, they can enter.

So there's all these exceptions, but here we really didn't have any of those exceptions that applied. The officers probably shouldn't have done this again. They weren't setting out to be evil. They weren't setting out to do anything wrong, but arguably I would say that the officers shouldn't have taken his firearms. Well, the court has said, that's right. And so that leads us up to what the Supreme court actually said. The Supreme court has said that unanimously that this was wrong.

This shouldn't have happened. And that's important as well, because of course you have different viewpoints on the bench specifically within the Supreme court. But again, this is a unanimous decision. We would, as lawyers would say, this is well settled law and they've made it clear as to what their position is as it relates to that.

But going forward, just real quick. So the officers, their justification was caretaking exception, caretaker exception. And that was argued. I believe that caretaker exception literally was, had only been applied to automobiles at the time. I think it was an impact in the case. I just read it a minute ago, but I think it was an impounded automobile, right? So it specifically dealt with automobiles and had never been applied to firearms. That case did allow officers.

If it was an impounded automobile under that fact pattern, an officer could go in and confiscate a weapon that they found. Right. You are tuned in to outlaw lawyer, Josh Whitaker. And currently our guest on the program is Damian McCullers. All the talk is about Kaniglia versus Strom in Rhode Island.

A great discussion. If you have any questions about this case, or if you would like to ask a question of our lawyers each and every week, here's the number 800-659-1186. That's 800-659-1186. If you have a legal question, you can direct that to Whitaker and Hamer. 800-659-1186. 800-659-1186. Coming up on the Outlaw Lawyer, I know I said I would do it, but I don't want to.

What happens when you enter a contract and then decide you don't want to comply? Coming up. Stay tuned. Outlaw Lawyer, we are back and we're going to talk contracts. Just a reminder, if you've got any legal questions for the show, you can call 800-659-1186.

That's 800-659-1186. Your Outlaw Lawyer, that's Josh Whitaker. Our guest in studio today is Damian McCullers. I'm Morgan Patrick, your consumer advocate, and we're going to get into contracts. You're talking contracts? Absolutely.

I love it. The law affects everything. Sports is 100% contracts. It's 100% contract law.

It's no different. It's actually just, it's really contract-based. Absolutely, positively, beyond a shadow of a doubt, contract-based.

There are two big stories that I saw this week that all revolve around contracts. First, I don't know, did you see Aaron Rodgers on Jeopardy? Well, I did see Aaron Rodgers on Jeopardy. He was good, guys.

He was very, very good. As much as it pains me, as a Cowboys fan, I must say, go Aaron Rodgers, specifically as it relates to Jeopardy. Well, you're a Cowboys fan. You know all about pain, don't you?

I do know all about pain. I'm a Cowboys fan myself, and it's been a long time. It's been a long time. Yeah, but Aaron Rodgers was very, very good. He was absolutely delightful to watch on Jeopardy. God bless Trebek.

Cancer sucks, but Rodgers did a great, great job. I saw an interview where he wants the Jeopardy gig. I guess they only take like 70- Well, how's he going to do that in QB1 for the Packers? They said they only take like 70 days a year for Jeopardy.

They get all the Jeopardys done in like 64, 74 days. And then, I don't know, the NFL season's, what, 200 days or whatever. So he said it could happen. He could do both. I don't think he's seriously being considered, but he said he wants to do it and he can do it.

I don't know, man. That's a pretty big draw. They definitely get views on Wisconsin. But contract loss. So Aaron Rodgers has a contract to play QB1 for the Green Bay Packers.

But does he? He is contractually obligated to play, but it has come out through his camp, public relations, that maybe he's not interested in playing for the Green Bay Packers this year. Maybe wanting a trade.

It sounds like Denver's the place. But Damian, how can he do this if he's under contract? He has contracted to play and to show up.

What's the angle here? So what I have learned about contracts during my tenure as an attorney is the beauty of them is that you can renegotiate them at any point in time. You probably shouldn't sometimes.

And I tell my kids this all the time, but there's a huge difference between can and should. But still, it appears that he is unhappy. Some would say disgruntled. And I think he's looking to either one renegotiate with different terms, huge different terms, or just be out of Green Bay, which I know that is too much to the chagrin of a lot of folks here, even in the triangle. So you've got a contract. You've got an ironclad, these NFL contracts are ironclad contracts, millions of attorneys much more experienced than me and you have looked at these things over the years.

And so you've got this ironclad contract. He's supposed to be there. So his main weapon for renegotiating, he's supposed to be there. They're supposed to pay him.

So what happens? He holds out, he doesn't show up. I mean, of course, you know, he can say he doesn't want to perform and does not perform. And of course, they can attempt to force him to perform. The problem with that is he's the talent. So at that point, does he show up and just blow it? Or, you know, which I don't think he would. I mean, he's Aaron Rodgers.

Credit to Stephen A. Smith. He's a bad man. But you know, he can show up or not. And at that point, they'd have to force his hand, so to speak. But I think at that point, the organization probably would say, you know, this is not working out for us. We're going to just kind of unload him, so to speak, get what we can as far as value and do the best we can by the team. Because at that point, when you're a front office guy, that's what you're working towards two things, Super Bowl, and what's in the best interest of the team.

Everything else doesn't matter. Right. Because if he, if he doesn't play, they don't have to pay them.

Maybe they can even find them. So not only not pay, so under this contract, right? So that's, that's what happens.

So you got to stand off, right? They're still taking cap hits. It's still counting against them.

They don't have their quarterback. And so I guess that's just leverage, right? So they got a contractual relationship, but really it's just the outside, the leverage.

Right. And that's, I mean, the reality of that is that, and just kind of bringing it back home to our listeners, that is kind of everyday life with contracts, whatever. If you're selling widgets, if you have a contract to sell widgets to Acme company and you don't deliver somebody's going to sue you for breach. So people at home might not understand this because the folks at home who may not have, have gone to three years of law school, don't go in law school, they give you fact patterns.

Well, what happens, you know, when this happens and what's out of fact, well, we'll add this to it. So it, and contracts, when we're talking about contracts, we're always talking about Acme. That's the company that makes whatever it is that we're worried about. And they don't have a real product. They have widgets, right?

So it's made up. You don't have nightmares about widgets. If you decide to go to law school, I don't know if you remember, did you ever watch the Jetsons growing up? I did watch the Jetsons growing up. You know what the Jetsons made? Yeah. It was, it was cogs. It was spacely made cogs. And you know what their competitor made? No, I don't. Widgets.

Didn't they? I kind of figured, but I was, I was going with the T's there. But anyway, so it's, it's, it's just interesting to watch this play out as attorneys because we have, we have clients in our day-to-day practice who have a contract and for whatever reason they don't want to perform right now, you have a lot of builders because of the lumber prices, because of the way everything's going, they're under contract to maybe sell a house and then no longer makes financial sense to sell it at the price they were originally selling it for. So we're seeing a lot of terminations and they're economic.

I'll lose more complying with this contract than I will if I breach it and get sued. And there's, you know, there are real live economic factors that people have to kind of wade through, so to speak, to determine if it makes sense for them to perform. Even so on the other side of that, if you have a builder that has contracted to sell this house at whatever price, you also have a buyer on the other side of it that has to make the determination of if this builder terminated this contract, is it worth it to me financially to sue this builder? Which we don't know, you know, what that person's financial situation is and what it means to them, but probably more times than not, they're not going to want to spend the money because they have to pay a filing fee. They have to find an attorney that's willing to do it first and foremost, and then pay the filing fees, pay for depositions, whatever the case may be. It just might not make financial sense for that person to do that.

They may just decide, I'll buy another house from somewhere else. It's real weird. You got this contract, supposed to be ironclad, but really a lot of the things in the relationship are outside of the contract. You know, it's interesting just to take a look at it, but it's all playing out for Aaron Rogers and I'll be real interested. I know Morgan told us June one was a big day.

Yes. Cap day was when it, you know, it would change the money for our minds. They're, they're talking millions and millions of dollars, not, you know, whatever, even the big number that we may throw around is a hundred grand and they're talking, you know, they spend a hundred grand at lunch. So it's, it's going to be interesting, but moral of the story people is hire a lawyer to look over your contracts and talk to them before you enter them so that maybe you can save yourself some angst and heartburn. Well, we'll watch and see how this one plays out.

Stay tuned. Talking contracts on Outlaw Lawyer. You've got Josh Whitaker and you can find him at Whitaker and Hamer. If you've got any questions about what we're talking about today, if you've got a legal question or you want to ask a question of the show, here's the number 800-659-1186. That's 800-659-1186. If you have a legal question of your very own, you can also contact Whitaker and Hamer. Here's the number 800-659-1186.

That's 800-659-1186. Coming up on the Outlaw Lawyer, what happens when a student is questioned by a teacher, but with a law enforcement officer present? Coming up. Stay tuned. You're listening to the Outlaw Lawyer. We've got Josh Whitaker in studio. He is your host. I'm Morgan Patrick, consumer advocate.

Our guest today is Damian McCullers, and you heard it. We're going to talk more legal right now. Well, Damian, there's an interesting case before the North Carolina Supreme Court here in the past week or so. Tell me a little bit about that case.

It was in Ray, D.A., and just for our listeners out there from the show, that is because this case involved a minor, so you don't have what you would normally have where it says State of North Carolina versus Damian McCullers or Joshua Whitaker or whatever the case may be. So that is why it's a really interesting legal issue, which relates to kind of what we would determine would be in custody, so to speak. And with adults, a lot of times you'll hear us talk about in the law whether or not there was a custodial taking or whether the person was in custody and that type of thing. Factually here, one student is caught with marijuana on campus out of middle school. That student then tells the principal, I believe, at the school where he got that marijuana, and he names another student. And that student is then brought into the principal's office by the school resource officer. And the school resource officer is present during the time that the principal talks with and questions this young person. That's right. So we've got a 13-year-old who's been called to the principal's office, but was escorted there by the law enforcement office who was on school grounds.

Right. They're in the principal's office, doors closed, law enforcement officer is not doing the questioning but is present. The principal is asking questions. The 13-year-old confesses, yes, that was my marijuana. I sold him the... I sold marijuana to student A. I like to say contraband. That makes me sound like a curmudgeon. I like to say contraband.

Not what a 13-year-old would probably say. So that's where this case, this is how it happened. So we've got a confession, charges eventually filed, and we've got a lawyer in here for the defense now. And this lawyer says, hey, wait a minute.

Right. This person, and this goes back to something that everybody's heard or seen on television at some point, which is your Miranda rights. Which is, we call that after a Supreme Court case where the defendant Miranda was confessed after being withheld and not knowing that he could call someone, not knowing that he had the right to an attorney and he had the right to be silent. These things weren't read to you before that case.

They weren't enumerated. I like that word. So that's what Miranda changed. So now we all know what Miranda rights are because of that Supreme Court case.

That changed everything. So now how does this affect a 13-year-old in a principal's office? Usually the Miranda rights are what triggers them is a law enforcement official being involved and you're not being- Free to leave. That's right. You're being in a situation where you don't feel, reasonably don't feel like you can leave. Yeah. And that's kind of the linchpin, so to speak, of kind of how you get there and how it starts. Again, with these facts, that was the issue is, was this 13-year-old in custody, so to speak?

Was he free to leave or did he feel free to leave? And that's kind of how we get there, so to speak. It's kind of concerning, number one, that these 13-year-olds have marijuana at school, but that's a completely different question. Yeah. I tell you what I have a 12-year-old and I can't, I can't imagine someone questioning my 12-year-old, maybe it's because we're attorneys, I don't know, but- Yeah, but I mean, I think just even a step back further from that is concerning that it's even happening. I'm concerned that- You're a level one. Yeah, I'm a level one that the 13-year-old has access to marijuana to sell to someone else.

That's tough. And I would be super angry at my 12-year-old if I got the call that he was in the principal's office because he was selling contraband. But yes, that's, I mean, and then we get to step two, which is there's questioning happening, whatever that questioning may be. And the facts of this, again, the school resource officer didn't say a word, nothing.

Yeah. Again, the school resource officer hasn't maybe done anything wrong at all. It's one of those things where we look back after the fact and we kind of piece together what happened. You can't point to the school resource officer and say, he's done, he intended to do anything wrong.

He's done anything wrong. He's just doing what he, I guess, believes his job to be, he or she believes his job to be. Right. But that goes back to kind of one of the things that we talked about in another segment, which is your belief at the time doesn't necessarily, it doesn't necessarily jive with what the actual law is or what the justices or judges may determine the law to be. So of course you do your best at the time to do what you can with what you have factually, but the law may say something else. And that may be what makes a decision turn one way or another. And this was interesting to me because this is a recent case in the, in the North Carolina Supreme Court has a lot of new, a new chief justice has a new justice that was appointed. One of the newer justices wrote this opinion. So it's very important.

I know those judicial elections aren't always the highest on people's list, but who your judges are, who your justices are, are very important because this, this law is going to change a lot of different things on a lot of levels. But the Supreme Court of North Carolina came back and said, this 13 year old had a reasonable belief that he was not free to go. And just one point of clarification, I believe, if I'm not mistaken, that this is court of appeals.

Oh, my fault. Yep. North Carolina court of appeals.

Okay. And so this might have another step to go. It may have another step to go, depending on if the sides decide that they want to take it a step further and take it to the Supreme Court. And that would be the Supreme Court of North Carolina. That's right. The North Carolina court of appeals here found though that this 13 year old, it was a, he had a reasonable belief he was not free to leave and that he was being detained.

Yeah. That he had the ability or the right to have been told you, you know, again, the same things we hear all the time. You have the right to remain silent.

Right. Anything you say can and be used against you. You have a right to an attorney.

If you can't afford an attorney, you're going to be appointed to you. Those types of things. And again, you know, just in the mind of a 13 year old, I'm certain that a 13 year old sitting in the principal's office with a uniform law enforcement officer probably did not feel like, Hey, I can just get up there and walk out of here at any time. Like I can do what I want.

It's kind of like I can get up and walk out of the cafeteria and go play ball in the gym. So, and that's what the court of appeals kind of in their opinion, I read it a little while back indicated just kind of that, you know, that was not the feeling there that he didn't feel like it was free to leave. Right. And the theory here being, if he had gotten his Miranda rights, he would have realized that he was being interrogated and this was a, this was a legal matter and could have called his parents or had his parents there, an attorney there. So these, these decisions, they don't get a lot of press. You're probably not going to find this in the local news, but this is an important decision that really affects, could affect any kid in North Carolina.

Absolutely. You're listening to outlaw lawyer. You've got Josh Whitaker.

He's in the hot seat and I say hot seat. He's hosting the show. We also have a Damien McCullers with us as our guests today, talking all things legal. If you have questions for the show and we can use these questions for upcoming shows, you can leave them at 800-659-1186. That's 800-659-1186. You can also go to That's

You can leave the question there as well. If you've got a legal question of your own and you want to get in touch with Whitaker and Hamer, you can call that same number. 800-659-1186.

That's 800-659-1186. Coming up on the Outlaw Lawyer, the red hot real estate market in Wake County. New forms, new ideas, new money coming up on the Outlaw Lawyer. Stay tuned.

All right. We're back on Outlaw Lawyer. I am your host, Josh Whitaker, but I'm with our newest addition to the program, our cohost, my law partner, Joe Hamer. Glad to be here. Glad to be a fellow Outlaw Lawyer, your law partner, your life friend.

Yeah. Joe is my law partner. We're both lawyers for the law firm of Whitaker and Hamer.

We have offices in Raleigh, Garner, Clayton, Goldsboro, and Fuquay, Varena. But Joe is going to join me on the Outlaw Lawyer to help us talk about how law affects everything in society. But I need to introduce Joe. So Joe, born and raised in Clayton?

Born and raised. I have known you since you were approximately eight? Seven or eight. Seven or eight.

Somewhere in that range. So I coached Joe in a good old Clayton Park and Rec basketball in the mid to late nineties. And on into the two thousands a little bit till you got too old for the Park and Rec and the All-Star and all the other. Your age has clouded your memory.

It was actually, it was Garner, Garner Park and Parks and Rec. Initially you were like a 12 year old boy coach, the youngest coach in the history of Rec League basketball. And then transitioned to, moved up to the Clayton Rec League and we reunited and continued to establish a Rec League basketball dynasty that no 10 to 11 year old basketball league has ever seen. The likes that have never been seen again. So Joe, I knew you when you were a kid.

I didn't really have a lot of contact with you. So you left and you went to college. Yeah.

Yes. Went to, went to college, went to Barton College in Wilson from Clayton High School. Stayed semi-local and then got out of college, decided to go to law school immediately. And I want to say we, we reconnected a little bit in that period of time. I knew you were an attorney and I feel like we, we got together and had no, no idea.

I don't think we ever planned to do anything to work together. It just kind of, kind of happened somehow. That's right. And so you went to, you went to Campbell for law school. I can't remember, were you in Dunn law school or Raleigh law school?

So I got the best of both worlds. I spent the one year in Buies Creek and I actually commuted from, luckily enough to live close. So I didn't get the full Campbell experience, but I did have one year in campus at the old Campbell campus. And then it moved to the new, very amazing, very up to date, very modern Raleigh campus. If you're, if you're ever talking to a Campbell attorney, it's very important whether they were a Buies Creek attorney, Campbell law student, or if they were a Raleigh law student.

And I'm a hybrid of both, the best of both worlds. It's probably not important to anyone else but me, but it's important to me because we were, when we were in law school, part of the building was condemned. So when we were down in Buies Creek, I remember like we had to help move desk because one part of the building got condemned because it was from like 1908. The building was still quite, quite old in my one year there. But Joe and his, in his duties with the law firm of Whitaker and Hamer spends a lot of time in the real estate transactional world.

That's correct. Virtually a hundred percent of my time in the real estate transactional world and never, never planned it that way. Really didn't have a strong sense of what I wanted to do coming out of law school as far as what I wanted to practice. I always kind of thought I'd want to litigate, did some litigation, discovered don't really want to litigate that much. Would much prefer the, that real estate transactional world.

Not for some people, somehow very much for me. Yeah. And so at Whitaker and Hamer, we are a full service law firm, offices in five cities here in North Carolina. We do handle litigation. We do a lot of real estate transaction. I would say last year we closed thousands upon thousands upon thousands upon thousands of real estate transactions. And when an attorney says a real estate transaction, an attorney is talking about you purchase property, you have a closing attorney, you refinance your house, you have a closing attorney, you get an equity line, you have a closing attorney. We help builders as they develop and sell lots and build. And so a real estate transactional attorney actually does a whole lot of stuff. Deals with a lot of contracts, deals with a lot of banks, deals with a lot of lenders, towns, zoning.

There's just a lot of different components to that. So Joe made it sound very unexciting as if litigation was the only exciting type of law there was, but real estate transactional, also very exciting. Very exciting.

Wake up every day excited for life. Ready to go, feet hit the floor, ready to transact real estate. And no, it is, it is exciting. I mean, it's a lot of people's livelihood. A lot of people get fired up, especially developers, builders, they get fired up over their real estate transactions.

And so it's something that you're always on your toes, different types of problems emerging every day, dealing with a lot of people. And one of the good things about it is generally, not always, generally, everyone's happy in the process. It's not contentious.

It can be contentious, but it's not by its nature a contentious, litigious me versus you type of process. Again, that happens frequently a lot, but by its nature, everyone, a seller is going to be happy to get paid to sell their home and get their money. And a buyer is going to be happy to have a nice new home. So everyone should be happy.

And that's our goals to adequately represent you and send everyone home happy. Transactional attorneys are very good at analyzing. And so that's what we want to do here on this show is we want to take Joe's experience, Damian's experience, my experience, and we want to take legal issues that get into the news, that have a legal basis, that get reported on by non-attorneys. I want to take that news in and look at it like a litigation attorney would look at it, like a transactional attorney would look at it. I want to analyze the facts, apply the case law or the applicable statute, and kind of figure out what's going on. Because when these legal items get reported on by any news outlet, a lot of times they get politicized politics plays in, opinion plays in, and that's all well and good. That's not what we're doing here.

That's correct. On the Outlaw Lawyer, we are separating that opinion. We're separating, and we may give personal anecdotes and things like that, but by and large, we're taking the opinion out of it. We're looking at the facts, we're looking at the black letter law, and we're just trying to help you guys get a better understanding of what the law is and kind of, again, how that intersects with our day-to-day lives. We'd love to hear what you thought about today's show. If you have any questions, if you have any comments, if you want to reach Joe or me, you can get us 1-800-659-1186.

So that's 1-800-659-1186. You can leave your comments, your questions for me and Joe there. We will get them. We'll be happy to help you any way we can. We'll take a look at some of those comments on upcoming shows, and like I said, hopefully this can be a good dialogue. We'd love to hear from you.

We certainly would love to hear from you. Thanks for having me, Josh. I'm happy to be the second part of the two-headed monster that is the Outlaw Lawyer, and it's an honor.

Talk to you soon. Outlaw Lawyer, it's Josh Whitaker. He is in studio. His guest is Damian McCullers, and they are talking all things legal.

Just remember, folks, how law affects everyday life, that's going to be the theme each and every week. If you've got questions for the program, you can dial 800-659-1186 for a future program. They could answer your question right here on the air. If you've got legal questions for Whitaker and Hamer, you can call 800-659-1186.

That's 800-659-1186. Guys, take it away. Damian, the real estate market in 2021, it's crazy.

If you live in North Carolina, you're in Wake, Durham, Chatham, any of the surrounding counties. Statewide, the real estate market is insane. It is absolutely incredible. We are seeing things that we have never seen before. We are seeing things that we just thought we would never see again. I think we all thought kind of during the pandemic that things might slow down a bit, and it really did not. It really ramped up.

It did not slow down. And what the market's seeing now, and I guess this is a national issue, we're looking at it on the North Carolina level, but we have the supply and demand. Absolutely.

Our supply is the lowest most people have ever seen, and the demand is about as high as it can get. Absolutely. And that trickles down and creates new scenarios that we just have not seen or just are not used to.

What have you seen? So for me, Damian, it all comes back to contracts. I always want to figure out how the law, how the market, how these outside factors affect the law. And so here we have in North Carolina kind of a standard contract set, an offer to purchase. There's a way that real estate transactions happen, especially when you have real estate agents, attorneys involved, everybody knows these documents.

And so what we were running into is somebody would list their house for sale and within 12 hours, they'll have 60 offers. Right. And that's unusual. Well, it's not unusual now.

It's the norm now, but prior to I guess what, 2019, maybe that was not the norm. The norm was you list it, you may get a couple of offers, you do some showings, and then maybe in a week. You might get your listing price. You might agree to something underneath. And now like, I don't think anyone would offer on any home. You're not going to get any offers under listing. Everybody's going way over, way over is what I'm saying.

So guys, can I jump in? Can I ask, is there a secret formula to why this has happened? I mean, I know interest rates are low. I know that building material is tough to come by. So existing homes become premium, but I'm hearing 30 to 40 offers per house. And if you don't have cash and it's going over ask, you can't get a loan. So you got to have cash and it's happening in record time. And that's one of the things we were just talking about is, you know, formally, it used to be that, you know, you list it, it's on the market. And if you got an offer in a week, you were like a static and, you know, your realtor had done an awesome, super job for you. And now it's like you have, I'm hearing people say, and I've heard realtors say that they are seeing buyers show up before their scheduled appointment time. I mean, they're having to tell them, no, you got to wait for your appointment, but they're literally writing up offers like at the house and just kind of, I mean, they're having to do it. So it's really, it's really interesting how the legal aspect is having to respond to this glut of offers is over asking. So one of the, one of the things that we're seeing in the real estate market is people are coming and say, all right, you listed this house for $500,000.

I want to make sure I get it. I'm going to offer you five 50 and going in, I'm getting a mortgage, you know, going in. I know that this house, you know, when I get the mortgage, they're going to do an appraisal. You're just going to do appraisal.

They're not going to lend you money unless they can justify it with comps and things like that. And so you're, you're telling the seller, look, I'm going to pay you five 50, even if my, even if this house doesn't appraise for five 50, I'm going to pay you the difference where the house comes in and appraises for five 25. That means you as the buyer have to be prepared to come up with $25,000 cash and do it essentially immediately. And so these are, these are, we call, we call them appraisal addendums, but we, you know, as attorneys, we've created all these appraisal addendums like, okay, well, if it appraises for $10,000 less, I'll pay a 10,000 up to $10,000 difference. And so there's this whole new negotiating strategy when you're going so far over listing, you don't know if the market and the market's changing every day, but you don't know if the market can justify it. I mean, it's just amazing. The things that we are seeing, that's one of them.

I think another one is just the simple people are just there. Like you said, they're just paying way over asking. I mean, just whatever it takes almost the other thing or trend that I have seen that I think I know I personally just could not do is people are buying sight unseen. They are literally, you know, I guess you have to trust your realtor at some point, but they literally are saying, Hey, I'm moving from Chicago. I've put in 10 offers. They've all been declined. This one's in my price range.

This is the one that is what I'm looking for size wise. And the realtors is like doing a Facebook live walkthrough and they're like, yep, put an offer in on it. Well, the other thing we're seeing too, so we're seeing the appraisal addendums kind of come into the, to the real estate practice, but we're also seeing what's called an escalation clause. And here in North Carolina, uh, the escalation clause is something where in that same example, like, look, I want this house, it's listed for 500. I think I got to put five 50 in there to be sure I get it as an offer, but I'll put in that offer, but I also put in the escalation clause.

And if you get an offer from a third party for five 75, I'll go up to five 76, but you have to give me evidence. And what is the evidence and what's a bona fide third party offer, but you're seeing these, just these, and here before six months ago, an escalation clause in North Carolina was crazy. We didn't ever, you know, it's not New York.

It's not California, you know, like, but we're seeing it just change every day. And the important thing I would say, especially if you're a real estate agent or a real estate attorney listening to this is none of that's really been litigated in North Carolina. Right.

We've never had a lawsuit over an appraisal addendum or over an escalation clause. And so there's some, there's some, there's no settled case law to be able to say, you can't do this or you can do that. Right. And so I think if a lawsuit, if one of these addendums ever create a lawsuit in this market and someone really wants to take the other part, it's going to happen, take the other party to task there, we're going to be reading a Supreme court, a North Carolina Supreme court opinion here a couple of years from now on how all this played out. Right. It's a, it's, it's definitely a crazy market. Yeah. I mean, just the market itself has just gone bananas. I mean, it's certainly a good thing for the area, I guess.

I think last we checked it was maybe like 60 or 70 people moving a day. Oh yeah. Something crazy. It was, I mean, it was just a crazy number. Well, the other big story guys is the large companies that are picking North Carolina apples being one of them.

I mean, that's just one. So, you know, a lot of that discussion you have, you know, at your favorite watering hole or maybe in your neighborhood cul-de-sac is when is this going to slow down? Uh, and folks, the, the amount of people that are moving in from California, New York, the Midwest, and they're, they're getting here to North Carolina to, you know, fill out some of these jobs.

I mean, they, I think the Apple stat was they're going to have 2000 jobs and the average salary is going to be about 185,000 average salary for the Apple announcement was one 87, five. Well, I tell you, I got family that live, live in places where they're not growing. And so we, we talk about this and then kind of joke about this. It's a good problem to have. Oh, it's an absolute great problem to have. I mean, and I tell people this all the time, you know, and we talked about this in another segment, but we're born and raised here.

So, you know, we, we see a lot and, and we've, we've seen the growth and we see the growth. Now I tell people all the time, I age myself a lot of times when somebody asks me for directions, because I'll say, Oh yeah, you go pass the, the old statue that was down here by the whatever. And they're looking at me like, what are you talking about?

But I'm telling them about a statue that was there when I was like six years old. Yeah. It's a great problem to have.

One of the other things that we talked about was, you know, after law school and before we started thinking about opening the firm and you know, when you're just, you're kind of that young person firstly graduated and you, you have options of where to move and where to go, I would literally read, you know, top 10 places to live in the U S and every single time it may not be number one, but in the top five to six, it was somewhere in the triangle area, whether it be Cary, whether it be, you know, apex Raleigh, but every single time it was somewhere in the triangle. Yeah. I mean, back in the day, mid nineties, it was Cary.

I mean, mid nineties, Cary was number one all the time. So, I mean, again, great problem to have is it's just kind of what it is. And I think being a rare native, we get to see kind of the, the blossom of it all. Well, for our show, it'll be very interesting to see how this continues because it's going to continue, right?

How this continues to shape our contracts, the way attorneys approach real estate transactions. That'd be interesting to me anyway. Well, it's going to be interesting period.

I mean, I think we can't turn it off. We, we got that great legal training at Campbell, so we can't turn it off. I hope everybody's enjoyed the first episode of the Outlaw Lawyer. I really do appreciate my lifelong friend, my law partner, Damian McCullers for being here today.

Wouldn't have missed it for the world, buddy. Anyway, I hope this was interesting to you. If you do have any questions or concerns, Morgan, how can they contact the show? It's 800-659-1186. That's 800-659-1186.

If you've got a question that we can tackle on an upcoming show, we'd love to hear from you. You can also go to and leave it there. If you've got a legal question for Josh Whitaker and Whitaker and Hamer, you can call that number as well.

800-659-1186. Outlaw Lawyer is hosted by an attorney licensed to practice law in North Carolina. Some of the guests appearing on the show may be licensed North Carolina attorneys. Discussion of the show is meant to be general in nature and in no way should the discussion be interpreted as legal advice. Legal advice can only be rendered once an attorney, licensed in the state in which you live, had the opportunity to discuss the facts of your case with you. The attorneys appearing on the show are speaking in generalities about the law in North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show, contact us directly.
Whisper: medium.en / 2023-05-30 10:52:50 / 2023-05-30 11:17:37 / 25

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