The completed (but still not proofread version of) THE BENEFIT OF BEING UNKNOWN AND HAVING NO IDEA WHAT YOU ARE DOING 
Monday, September 9, 2019, 09:58 AM
Posted by Administrator
It has always caused me anxiety when the lawyer on the other side has no idea what he/she is doing or when the other side has no lawyer. Judges seem to want to help the inept and, though they'll deny it, judges (almost) always give them hints about what to do next, don't hold them to the rules, give them a break if there is a break to be given, even let them win if things are even.

I have been on both sides of this.

In Florida, if you get arrested for driving under the influence, the police take your driver license on the spot and issue you a slip that tells you that you can apply to the Department of Motor Vehicles for a hearing to determine whether they should have taken your license. In the past 25 years, I have not done a lot of DUIs so I am guessing about the exact numbers on this but, I have never, ever, ever, ever heard of anyone winning on of these hearings. The hearing officer (the judge) is a uniformed DMV employee---and that is the agency that took the license away. It's sort of like the guy you punched out sitting in judgment of you at your trial for battery.

I have represented clients at two of these hearings. The clients won both.

I don't think it was great lawyering that took the day, I think it was that neither of the hearing officers had any idea who I was. Like so many areas of law, there are lawyers who specialize in DUI. These lawyers are likely to ask for a DMV hearing in every single case they have. Maybe the cop won't show, maybe the hearing officer will wander in drunk------who knows---the lawyers are making money so, who cares?.

When a judge sees the same lawyers all the time doing the same schtick, they find it hard to take it seriously. "This is the same thing this lawyer said the last times with his/her last five clients.", they think. But, if an unknown lawyer comes in, the judge may think: "Who is this man/woman? I've never seen them before. They might actually have something worthwhile or else why did they bother to come. This might actually not be the same crap I listen to day in an day out. And, if I grant the request, they probably won't go blabbing it around to all of the other lawyers I see all the time." (Note: This last part is in keeping with the idea if you want a judge to do something out of the ordinary----go last so nobody else is in the courtroom watching you.)

My first time in DMV Administrative Court, I was, of course, surprised to see that the hearing officer wore a DMV uniform. I didn't know until then that there was a DMV uniform. She looked over at me and seemed surprised to see that she had no idea who I was. I asked what the procedure was (to make it clear that I hadn't been to one of their hearings before and that I was clueless about what was going to go on).

Anyway, my client was from Tennessee. The back woods of Tennessee. Really, to get to where he lived, you first went to the back woods and then you went back into the woods and, when you got there, you headed back further into the get the idea. He lived in a place that was so far removed from civilization that he did not speak English. At least, not as we know it. Have you ever heard a Scottish accent? Add that to a Southern Drawl and imagine the person you are trying to understand has a mouth full of mush. I couldn't understand him. During the hearing, when I asked the cop who arrested him if he could understand him, he looked over to the hearing officer, she sort-of shrugged and he said "no".

Since the cop couldn't understand my client, my client couldn't have been determined to have refused performed to perform the "road side sobriety" tests the cop used to determine that he probably was over the limit for, the cop had no right to demand he take a breathalyzer. And, no right to take my client's license.

The other case I won in DMV court had to do with a car stopped at a Turnpike rest area that my client said (like so many defendants do) that he had not been driving. It is a boring story compared to the back woods Tennessean and I have absolutely no idea why we prevailed (except for the idea that the hearing officer had no idea who I was) so I will move on.

Some years ago, a then-friend of mine from South America was trying to get asylum in the US and had, as this story begins, exhausted every opportunity, missed every deadline, done everything wrong and (many would say) should have been deported. Her solution? Hire an immigration lawyer who had never done an asylum case, had no idea how to handle himself in U.S. Immigration Court........and, as if that wasn't enough.......was a Canadian. (Note: Sam Levine is now deceased. He was a great guy who tried very hard. He was very smart and was a graduate of McGill University, the Harvard of Canada. He did not like me.)

I will take credit for suggesting she hire Sam as I have, for some jobs, always favored the well-meaning (and, he was) over the well known. I went to several hearings with Sam and my then-friend and, each time, Sam was clearly clueless. Biometrics (some immigration requirement having to do with physical characteristic intended to establish that the immigrant is at the time and will continue to be identifiable as who he/she is supposed to be....and, who is not a terrorist or someone ineligible to enter the US or to adjust their status here) he was supposed to have her do? Nope.......had to continue the the hearing. Still didn't do it? Nope....continue it, again. And, again. And, again. And, every time (four times) my then-friend dragged her husband to Miami.... from California...for the hearing.

Did Sam know how to ask elementary questions just to get started? The witnesses, name, address, where they live.......what they know? Nope. Same knew how to fill out forms (which is what 90% of immigration is.....not to have hearings.

Now, while this was going on, there was a lot of press about asylum seekers making stuff up and I was very concerned that my then-friend would be branded a bullshitter----as opposed to someone who, if she were forced to return, would really, no-kidding around--be at risk of persecution and death, her her home government unwilling or unable to protect her and her problem having arisen from her husband's association with a US government (anti-drug) agency.

Since Sam had never been involved in an asylum case before---as evidenced by his having no idea was he was doing-----and since he was not associated with any lawyers who were doing this stuff every day, he was perfect for the job. In the end, (the story goes===I was not in the courtroom for the final hearing because it was too painful to watch him phumpher around), the judge said to the lawyer for the Department Of Homeland Security who wanted desperately to deport my then-friend "Hold your nose, I'm giving her asylum."

Would my then-friend have gotten asylum if she had hired an expensive or fancy or experienced or smooth immigration lawyer. I don't think so.

Over the years, I have seen and experienced success-through-stupidity man times. One of my favorites:
-Woman hired me (paid some money) to do a Chapter 7 bankruptcy then, she disappeared.
-She had been served with a collections lawsuit before she first hired me.
-I had entered an appearance in the collections case (figuring she would cooperate and we'd file the bankruptcy and stop the collect case before it went to trial).
-But, she disappeared.
-Since I couldn't locate her, I was stuck on the case (I wouldn't ask the court for permission to withdraw without giving her notice).

So, I tried the case. And, it was an easy case.....from the plaintiff's point of view, not from my "client's". I argued everything I could argue. I complained about and then questioned every witness (really two witnesses---records custodians---not much to prove the case). But, in the end, I knew the disappeared plaintiff had lost.

But, then, the judge said to me, more or less this "Mr. Duhl, I'm glad you brought up the issue that you did in your argument. Until now, nobody has brought it up and though I've always had trouble with it in these kinds of cases, I couldn't rule in favor the defendant until someone brought up the issue........and, you did." So, the judge ruled in favor or my client and I won.

What was that issue? I have no idea.

(Note: This is not entirely true. I believe the issue was that the credit card agreement provided that it was subject to the laws of a state other than Florida where higher-than-Florida-interest was allowed. And, I believe that there was no evidence offered by the plaintiff that the other state did, in fact, allow interest at the rate the plaintiff was charging. And, I believe that if a creditor attempts to charge a usurious rate of interest (higher than applicable law allows), the creditor is not allowed to collect the debt.)

Of course, when the judge was announcing that I had won, it was not my job to question why. It was my job to shut up and look smart.

It's a good decade after law school before the average lawyer even figures out to do that.

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