I HAVE HAD MY SHARE OF BAR COMPLAINTS by Bob Smith 
Monday, April 19, 2010, 11:31 AM
Posted by Administrator
Editor's Note: Retired lawyer Bob Smith writes from his cabin in Northern Wyoming. The opinions expressed below are solely his. Any relationship between the characters described below and real people are solely the result of the reader's imagination.


I think that the Florida Bar...at least that part of the Florida Bar that diciplines lawyers who have done wrong... requires that we keep complaints made to them about Florida lawyers a secret. Or, maybe it is a secret if the complaint is dismissed but not a secret if the lawyer is diciplined. Or, maybe the other way around. Who knows? I try to follow the rules but I'll just take a chance on this one.

I) MY FAVORITE BAR COMPLAINT....

Years ago, a criminal defendant complained about me. He said that I was ignoring his case and I was not returning his phone calls....
I wrote back to the Bar giving my explanation:
1) I was not the man's lawyer.
2) He had just gone to trial with the man who actually was his lawyer...and the jury had returned a verdict of not guilty.
The Bar dismissed his Complaint.

II) COMPLAINTS I HAVE MADE AGAINST OTHER LAWYERS...

Really, the only time I formally complained about another lawyer was because I followed the rule that a lawyer on the Bar's Ethics Hotline told me about: Lawyers are not ethically required to report another lawyer unless they have reason to believe that the other lawyer's conduct could be harmful to clients or to the administration of justice in the future.

I have had a lot of lawyers do crappy and unethical things to me and my clients:
-Contact my client directly about the case instead of going through me (there is an ethical rule about that);
-Make untrue statements in court (there is a rule about that);
-Not give me copies of things that they are sending to the Judge (there is a rule about that);
-Be "unavailable" for hearings and depositions for some made-up reason (there is a rule about that)...
But, this kind of thing typically doesn't rise above the level of annoyance. (And, yes, I imagine I've been guilty of some stuff, too.)

But, here is what the lawyer I complained about did:

He notarized a Power of Attorney, naming his friend as the attorney-in-fact for an elderly woman.... and giving his friend the power to do whatever he chose with the woman's bank accounts and all of her other assets. The lawyer notarized the document without ever meeting the woman. He told a police detective (who was investigating several things the lawyer's friend did with the woman's accounts)that his friend had shown him the woman's driver license. ....and that he talked to the woman on the phone (Though he had never met her and wouldn't really know if it was her on the phone.)

Oh, also, the lawyer had two people sign as witnesses to the woman's signature....even though they hadn't witnessed her sign anything.

I thought that this was dangerous behavior and that the lawyer was likely to do the same thing in the future. Notaries, I thought (even lawyers who were acting as notaries), were only allowed to notarize the signatures of people who were standing in front of them; who they witnessed signing the document they were about to notarize; and who properly identified themselves. The Bar, however, thought that what this lawyer did---notarize the signature of a woman he had never met because he friend asked him to----- was just fine.

III) A REAL EXCELLENT RULE REGARDING BAR COMPLAINTS

Lawyers can't tell people that if their lawyer---for example--- won't return their phone calls----- that they should leave a message with the lawyer: "If you won't call me back...and I have been calling for a long time....I will call the Florida Bar and ask them about the problem."

If a lawyer were to tell someone to do that, it would be an ethical violation.

I guess I could tell someone....after their lawyer has done them wrong...that NOW they should complain to the Bar. But, really, I'm not so sure about this either.... Now that I think about it, I will make this statement:

I am fairly confident that (were I not retired and living in Northern Wyoming), I would get sanctioned for so much as mentioning the words "Florida Bar" in front of a client who was having a significant problem with their lawyer's behavior.

Free speech? Not here.

IV) GOOD THINGS ABOUT BAR COMPLAINTS

Lawyers here in Florida are frequently disbarred for stealing client's money; suspended for ignoring cases or taking things on that they were not competent to handle; reprimanded for making mis-statements in Court. They are disbarred for felony convictions; suspended for not keeping good trust account records; reprimanded for taking money and not doing anything on the case or for doing a whole lot on a case but charging an exorbitant fee; suspended and investigated for drug use if they make a habit of not showing up in court.

V) OKAY, ONE MORE COMPLAINT AGAINST A LAWYER

When I was a very young man, a woman came to me. Her lawyer, she said, had thousands of dollars of her money in his trust account and he wouldn't give the money to her. I don't recall whether the money came from a personal injury case or a real estate transaction or what. The usual reason for a lawyer not giving you your money that he/she has deposited in his/her trust account is that they stole the money/or spent it/or "borrowed it" and just haven't been able to pay it back yet.

I called the Bar.

The Bar sent an investigator who tracked the lawyer down in an elevator. The investigator gave the lawyer a summons for all of his trust accout records. Later that day, I got a call.

The call was from another lawyer who was that lawyer's lawyer. He said he had a check for my client. I told him to meet me in my office with the check. We sat down across from each other. He took a check out of his briefcase and he said "I will give you this check if you call the Bar and tell them it was just a misunderstanding."

I called the Bar and told the investigator that the whole thing was just a big mistake. He handed me the check.

The lawyer's lawyer then left my office. As soon as he was out the door, I called the Bar and talked to the investigator and told him that the whole thing was not a big mistake and that the only reason I had called before is before the lawyer's lawyer told me that was the only way he was going to give me my client's money.

The Bar's investigator said "Yeah, I know. This kind of thing happens all the time."



add comment ( 1 view )   |  0 trackbacks   |   ( 3 / 800 )

ANOTHER HELPFUL HINT FROM RETIRED LAWYER, BOB SMITH: DO NOT SMUGGLE MARIJUANA TO MURDER DEFENDANTS IN THE COUNTY JAIL 
Wednesday, April 14, 2010, 09:08 PM
Posted by Administrator
Editor's Note: All of the opinions expressed below are solely those of the author, Bob Smith. Any imagined relation between the characters described and actual people is imagined (didn't I say that, already?).


While it is true that many murder defendants like to smoke marijuana, the Sheriff's Office frowns upon people who smuggle drugs into the county jail. I have no opinion on this policy but I have never had a problem following it. On the other hand, I have known a couple of people who have.

One Saturday morning, I wandered into the courtroom on the first floor of the Palm Beach County Jail and, looking at that morning's female defendants...arrested the day before for one thing or another...I recognized Ricky Romano's girlfriend (note: Ricky was never my client). Ricky had been arrested for stabbing a young girl to death in her apartment. His girlfriend decided that Ricky needed some marijuana to smoke in jail.

I walked up front when they called her name and...standing there in my I'm-just-here-to-see-my-clients-locked-up-upstairs-weekend-shorts, I volunteered to the duty Judge that I knew her and that she seemed like a nice girl and I pointed out that...having failed once at smuggling...she was unlikely to do it again. The Judge gave her a low bond and she got out later that day.

But, today's story is really about a former secretary-working-as-my-investigator, Gisela (real name) and Kirby Bilwer (a name made up mostly by rearranging the letters of his actual name---I can't use a fake name because there are so many lawyers, now, that whatever name I use, some lawyer really does have the name and I'll get sued).

My client, Roberto Martinez (made up name), had been convicted of first degree murder for shooting and killing a security guard. We were up to the sentencing phase...the jury would decide whether Roberto got life in prison or died in the electric chair. Gisela was getting paid by the county to be my investigator (and...as you might expect...you can get more information sometimes with a good looking, young Cuban woman than you can using a middle aged white former cop...unfortunately, none of the information we got particularly helped Roberto). Kirby was doing most if not all of the work on the sentencing hearing. He and Gisela were about to go to the county jail to see Roberto and here is what happened:

Roberto's brother delivered a large manila envelope to my office. I can remember seeing him drop it off with the receptionist as I left the office on some other business. The envelope was open and in it were two things:
1) Reports and legal papers that we had given to Roberto previously and that he had asked us to let his family see.
2) A pack of Newport cigarettes.


Gisela took the package and headed off to the jail where she met up with Kirby. They went up to Roberto's floor and the jailers brought out Roberto. They gave Roberto the envelope and, after they conferred for a while, Roberto left to go back to his cell. He was stopped by the jailers who took the envelope, examined the Newports, and saw that they were stuff with marijuana. Deputies with the Sherriff's Internal Affairs unit were waiting for Gisela and Kurb and they took them each to an interview room to, I guess you would say: ask them a few questions.

Kirby didn't know anything about the envelope and that, coupled with his being around town for about 15 years and his having managed to visit clients in the jail hundreds of times without smuggling marijuana to any of them got him off the hook. Gisela took a little longer.

It turned out that the reason the jailers had taken envelope and the cigarettes from Roberto is that they had noticed that he had marijuana in his possesion in the past and they wondered where he got it from. Eventually, they realized that he hadn't gotten it from Gisela...or, if he did, she didn't know about it.

So, they let Gisela go, too...but they banned her forever from coming to the jail. The conclusion to this entry is probably obvious to everyone, but, let me take you through it anyway:
1) At the conclusion of the sentencing hearing, the Clerk read the Jury's verdict: "Life in prison", the Clerk said.
2) At that moment, the jury foreperson, a thin, middle-aged African American woman literally jumped up......"No", she said, "we all voted for death."
3) One of Gisela's friends (did I mention that she was very good looking?) was..at the time...a Lieutenant in the Road Patrol division of the Sheriff's Office. We all decided that we should have lunch and that the Lieutenant should bring with him a Captain from the Jail. At lunch, Gisela wasa very apologetic about having smuggled marijuana into the jail. Of course, all was forgiven (did I mention that she was very good looking) and she was officially unbanned from the jail (did I mention that this was about 20 years ago when the world worked in a way that made sense and where rules that needed bending could be bent).
4) Roberto's Judge...who I will call Jim Carlisle (because that is his name and I like and respect him)...made a mistake. You see, according to Florida law, he had to write an order sentencing Roberto to death at the same time he sentenced him to death. And, not surprisingly when you think about it, he was supposed to write the order without one of the prosecutors on the case in his office at the time he wrote it. I have to rely here on my recollection which, at times, isn't so good......and this is my recollection:
-Somehow it came to light that a prosecutor was with him in the room while he wrote the order, and,
-He wrote it either too early or too late...
So, Kirby was able to get the death sentence overturned on appeal.

A cynical man might believe that Judge Carlisle was too good a Catholic to sentence someone to death without being sure that he had made enough mistakes in the sentencing to ensure that the sentence, on appeal, would be commuted to life.........

But, on the other hand, a cynical man might believe that if Gisela hadn't looked like Gisela she might really have been banned forever from the County Jail.......maybe even arrested for smuggling........

BUT, I AM NOT A CYNICAL MAN.

Editor's Note: Bob Smith writes for the blog from his cabin in Northern Wyoming. To aspiring lawyers, law students and others interested in the profession, Bob says: "Dental school...think about it."
add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 745 )

THE SILLY OX..........by Bob Smith 
Wednesday, April 7, 2010, 01:31 PM
Posted by Administrator
A client, years ago...when I was still doing the whole lawyer thing...told me that her daughter was reading a book titled THE STUPID OX. The girl said to her mother...more or less... "They shouldn't call the ox the "s" word, they should call the ox silly."

It is common in divorces for the other spouse (not you...your husband or your wife) to ...intentionally or not...get little kids involved in the case.
-"Tell mommy you would rather be with me."
-"Daddy drinks like a fish."
-"Mommy is sleeping with the mailman."

There is the great temptation to say to the kid: "Your mother/father is an idiot for involving you in our divorce case. And what she is telling you about me isn't true. She is a liar.""

But, there are two problems with this:
1) It is not helpful to the kid's psyche to dump on them. It is your mess, not their's.
2) If things get rough and some kind of mental health professional is hired to evaluate the kid, he or she will come to court and tell the Judge what you said to "fix" things after your spouse upset the kid. And "Your daddy is a liar." is maybe not the best thing you could have said.

But, on the other hand, we all are silly, sometimes. Parents are silly. Judges are silly. Kids know about silliness. And you don't need to explain the real facts to the kid because:
-It isn't their business.
-They know more about what is going on than you do, anyway.

If the mental health professional comes to court and testifies that your child told him/her that you said "Even adults can be silly sometimes....daddy was just being silly." to try to fix the situation the evil spouse created, the Judge will just smile and nod and think to him/herself that calling the other parent silly was probably a good way to dance around the issue.

After all, even Oxes are sometimes silly.
add comment ( 2 views )   |  0 trackbacks   |   ( 2.9 / 836 )

A GIGANTIC AXIOM: WHOEVER TALKS FIRST LOSES.............by Bob Smith 
Monday, April 5, 2010, 08:34 AM
Posted by Administrator
I have been agonizing over the past several days about how to make this topic interesting and......I have failed to come up with one single idea. Still, boring as it might be, it is important to know THE NUMBER ONE, MOST IMPORTANT SELLING/BUYING/NEGOTIATING SKILL IN THE WHOLE WIDE WORLD and that is.......for people who have read this but have not troubled themselves to read the title: WHOEVER TALKS FIRST LOSES. Whoever talks first loses is "...a self evident truth..."---I looked "Axiom" up in the dictionary just now.

Here is the idea:
-You (or someone you love) is going to buy a car (a boat, a house, settle a debt, get your neighbor to clear the fence line, ...whatever);
-The salesperson will say to you...as you sit at a round table in a room designed to make you feel like you should not leave until you have bought;
-"Okay, so you'll buy it right now for $35,000?" (Because, shockingly, that is what cars cost these days.);
-And, then, the saleperson will shut up;
-Silence will fill the little room;
-You will begin to feel a gnawing urge to say something to break the silence because silence is not comfortable;
-You will feel that there is no escape from the room and no escape from the uncomfortable silence unless and until you say something;
-And, you don't want to disappoint the salesperson, you don't want to ruin his/her day, you want them to be happy and have money to take the kids to the movies;
-So, you won't want to say "no".
-So, you will say "yes", buy the car and...next month...begin with the first of the 60 payments that you will need to make to pay off your $35,000 car loan.

If the salesperson had broken the silence and said anything:
-"I'll throw in floormats."
-"You have fine looking children."
-"My friend, John, went to the same high schol as you."
That would have taken the pressure off you to say "yes" and buy the car. You could have begun a conversation about floormats or children or high school and eased you way out the door. But, the salesperson, having been to sales school, kept his mouth shut in order to pressure that "yes" out of you.

The WHOEVER TALKS FIRST LOSES idea works both ways though. You could say: "I'll buy the car now for $30,000." and then shut up and the pressure would be on the salesperson to speak and he/she will want to make you happy and maybe you'll get the deal you want.

In any kind of face to face negotiations about anything:
-When talking to a prosecutor about prison time in a criminal case.
-Figuring out child support.
-Settling out debt.
-Getting the bank to refund charges.
.........the rule always applies: WHOEVER TALKS FIRST LOSES.

Try it. And, if a salesperson/negotiator/debt collector tries it on you, say "Oh, yeah, whoever-talks-first-loses...I know that one." Then, hang up the phone/run out of the room/tell them that your kids go to the same school/ask how the weather is where they live in India/say "I love your shoes"....or just sit there and don't say anything...for as long as it takes (to keep busy while I sit quietly,I like to bend paperclips and then twirl them between my thumb and forefinger).

Editor's Note: The entire editorial staff apologizes to all readers who fell asleep due to boredom while reading this entry.
add comment ( 1 view )   |  0 trackbacks   |   ( 3 / 789 )

THE LAWYER CLIENT PRIVILEDGE .........BY BOB SMITH 
Monday, March 29, 2010, 09:01 AM
Posted by Administrator
On Sunday, after I arrived back from my ski trip, I hauled the accumulated stack of New York Times in from the front gate and dumped them on the floor by the fireplace. (Note: Yes, you can get the Times delivered to your house...even here in Northern Wyoming---though it doesn't exactly get here every day...or at 6:00AM-------...and, no, I don't read the stuff about New York...but that is usually only a few pages.) On the front of the Saturday's Business Day section, there was a color drawing of two houses supported by two cranes and the story was going to be about the governments new plan to help people keep their houses. I am going to decipher this story (somehow, because it sure looks to me like the same old crap where useful, substantial mortgage modificaitons are few and far between) and, after I decipher it, I am going to report back.

In the meantime................the lawyer/client priviledge.

Everyone thinks that you can walk into a lawyers office, tell them you killed a man, and that the lawyer won't call the cops and have you arrested. And, everyone is right.

Everyone thinks that they can walk into the lawyers office, have the lawyer help them fill out some kind of legal form where they've got to report their last years' income, tell the lawyer that they lied on their last year's taxes and want to use the number they used on their taxes on the form they are filling out, and have the lawyer nod his/her head and say "sure". These people are wrong.

Anything you did in the past is a secret and the lawyer can't tell anyone...even after you die (the after-you-die-thing I don't think is totally settled........the can't-tell-while-you-are-living thing is).
-Lied on your taxes.........priviledged.
-Killed your mother's lover......priviliedged.
-Dumped motor oil into a pool of baby seals....priviledged.

The lawyer might think you are scum for doing these things but he/she can lose his/her ticket to practice law if they tell and nothing you said to the lawyer (alone in his/her office) can come into evidence against you at trial. Period. Though, otherwise (and, ignoring for the moment the husband-wife, preist-penitent, doctor-patient, psychotherapist-client, accountant-client priviledge...if they apply), like they say on TV "Anything you say can and will be used against you in a court of law."

On the other hand, if you are about to commit a crime:
-Sign a legal paper the lawyer knows is fraudulent;
-Put on perjured testimony at trial;
-Tell the lawyer you are going to go kill the witnesses against you...........
these things are not priviledged and the lawyer probably has a duty to call the cops or tell the court.

I once called the Florida Bar Ethics Hotline (a free service to Florida lawyers who want answers to ethical questions) to ask whether I had to turn in a bankruptcy client who let it slip...after we filed his case...that he had $35,000 in the bank that he didn't sort of happen to tell me about. The Ethics Hotline lawyer told me that I only had to turn him in if I was absolutely sure he was lying. So, if I thought he might be kidding around, or bragging...I didn't have to turn him in.

He had the good sense to fire me and hire another lawyer. The other lawyer assured me that they had disclosed the extra money (and, probably blamed "the mistake" on me) and the Ethics Hotline said that was good enough.

This does not mean that lawyers are scouting around for things to get people in trouble about:
-When a local lawyer told me "I have my wife on my payroll...even though she doesn't work for me...so that I can lease her Mercedes through the business." I thought to myself "Why would you tell me this?" But, I'm not the cops and he wasn't a client about to try to involve me in a conspiracy to commit tax fraud.
-When a local lawyer told me "Last year was a good year...and that's not including the cash." I thought to myself "Are all lawyers stupid braggers?" But, of course, the vast majority are not.

Criminal clients are treated differently than clients in civil cases. In the old days, you could put a criminal client you knew was lying on the witness stand and let them testify to their lie but you couldn't actively question them. So...
Q-So, tell me, Mr. Jones, what happened?
...and that is all you were supposed to ask.

vs.

Q-So, Mr. Jones, you went to the Steak and Shake and what did you see?
Q-And, after you saw that, what happened next?
Q.And, after that happened, what did you do with the gun?

I heard there is a new rule about clients-you-know-are-lying testifying. I figure it is worse than the old rule and that now you probably can't let your client testify at all..or you've got to call your own client a liar. I don't really know what the new rule says and I have promised myself never to read it.

My first Jury trial ever was a DUI. Here are the "facts"....
-It was dusk and an inky haze had fallen over Lantana Rd. Across the street from a convenience store set in the middle of a small strip shopping center on the South side of the road, a police officer sat in his patrol car facing South.
-A small Japanese car drove down Lantana Rd. from the West and the police officer noticed it and watched it. The car turned into the shopping center and parked outside of the convenience store. The three young, scruffy men in the car got out and went into the store.
-The police officer drove across the street and then waited outside the store for the scruffy men to finish their business and leave. As they walked out, he grabbed hold of my future client.... who I will call Harry.
-He believed that he had seen Harry get out of the driver's seat of the car and that Harry had been driving erratically down Lantana Road. He thought Harry's breath smelled of alcohol and that he might be "impaired". So, he thought that he ought to administer the roadside sobriety tests to Harry (follow instructions, finger to nose, etc).
-Harry "failed" the tests, was hauled in for a breathalyzer test, scored high on that and was arrested for DUI.

I was with the Public Defender's Office at the time, I got appointed to Harry and his DUI and off we went. Before trial, Harry told me that while he couldn't locate one of the guys, Paul, who was in the car with him...he was going to bring the other guy, John, with him to court to testify that Paul was driving the car...not Harry.

Almost half a century later, I can remember sitting on a wooden bench outside the courtroom door during a break in Harry's trial and talking with John about his upcoming testimony. This is what he said: "Harry was really driving the car but I am going to say that Pual was"."

I told John that he was..I was sure..a great guy. But, that I wasn't allowed to put on witnesses who I knew were going to lie so, thanks for coming.. and, now, feel free to leave. John left.

Since Harry had never told me that he was lying, I had no problem putting him on the witness stand. He testified that Paul was the driver...that the cop had made a mistake.

The jury found Harry not guilty. ...It had been, after all, a gloomy Lantana night.....and Harry did come across as a very nice guy....so, who really knew who was driving the car?

I certainly didn't.
add comment ( 1 view )   |  0 trackbacks   |   ( 3 / 816 )

IS THAT BECAUSE YOU SHOT YOURSELF IN THE HEAD? By Bob Smith======= The Rules Of Evidence And When They Don't Particularly Apply 
Friday, March 19, 2010, 11:25 AM
Posted by Administrator
Driving down from the Tim Horton's Donuts in Medicine Hat, I had some time to think about the time I spent in court before I retired and moved up here to Wyoming And I'm not just talking about what I was thinking for the first few miles after I handed the Custom's Agent at the border crossing a chocolate frosted. That's wasn't bribery---was it? I wasn't smuggling anything bigger than the half-eaten plum sitting in a bag in my back seat.

For example....

I am fairly familiar with the rules of evidence. I have tried enough cases for me to rely on muscle memory to jump me out of my seat and yell out the appropriate objection when the other side of the case tries to get something into evidence that I don't think the rules ought to allow in. You've watched TV so you know them too:

-Hearsay.
-Calls For A Hearsay Answer.
-Irrelevant.
-No Predicate/Improper Predicate.
-Improperly Calls For An Opinion.
-Calls For A Narrative.


These are most of them...except there is always:

-Prejudicial.

But, the other side's evidence is aupposed to be prejudicial to your side so, how about:

-Unfairly Prejducial.

Maybe, give it a try. Maybe the Judge will only let the jury in your muder case see a few grotesque murder victim pictures instead of the 3 dozen bloody, gory, mutilation photos the prosecutor would like to use to make the jury want to hang someone for the crime (and, why not your client because he is already in the courtroom). Alright, the Judge will probably let them all in. But, you tried (and preserved the issue for appeal).

But, I digress....

QUICK....I am going to give you a scenario then I want you to QUICK....tell me the appropriate legal objection (you are required...by most judges to state the correct basis of your objection along with the words "We object"....if you say "Objection, heresay" and really the proper objection is "irrevent" then the judge is supposed to overrule your objection...though it would have been sustained if you said the right words.)

SCENARIO #1:

In a divorce case where one of the issues was custody/visitation of a young girl, the Husband...representing himself...testifies that he has had all kinds of mental problems for the past few years. As a result, he says, he has been unable to hold down a job and has had psychotropic mediations prescribed for his many mental problems.

When he is done testifying, on cross examination, he is asked:
"IS THAT BECAUSE YOU SHOT YOURSELF IN THE HEAD?"

The Judge does not allow the question to be asked. QUICK...state the reason.

SCENARIO #2:

In a divorce case, where everyone agrees that the Wife had the Husband removed from the home for an alleged domestic battery and ...once she got rid of him...she then removed all of the parties' valuable possessions (most of which were acquired during or shortly after the death of the man's first wife), including a Hummer bodied golf cart. The Wife now demands her share of everything that is left. It was a very short term marriage. The woman had married her deceased best friend's husband.

A witness testifies to the Wife running off with everythind and demanding more. The witness is asked:
"SO, IS SHE A GOLD DIGGER?"

The Judge does not allow the question to be answered, QUICK....state the reason.

TO BE CONTINUED:

add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 764 )

BOB SMITH WRITES ABOUT REASONS NOT TO GET A DIVORCE, UNINTENDED TRIPS TO CANADA, BAT MITZVAHS IN VERMONT 
Monday, March 8, 2010, 04:43 PM
Posted by Administrator
By Bob Smith.......as told by Aryanna Duhl:

There flights from West Palm Beach to Burlington, Vermont though JFK Airport in New York. There are flights to New Hampshire on SouthWest Airlines. There are flights to Boston. For some reason, my father decided to ignore all of these flights and, instead, fly us to Hartford, Connecticut from where we would drive North to my aunt Joanne's house which is in the exact geographic middle of the State of Vermont.

We drove through a cold, dark November night through Connecticut then through part of Massachusetts, then into Southern Vermont. A few minutes after entering Vermont, my father announced: "Let's go to McDonalds." But, it did not appear that there were McDonald's in Vermont. Well, at least you wouldnt' know it if there were because the law there doesn't allow golden arches. Without golden arches, McDonald's just fade into the gloomy, foggy Vermont landscape.

The good news was that the Interstate followed the Connecticut River and on the other side of the Connecticut River was New Hampshire. And, in New Hampshire, the state didn't care what you did. Golden arches? Build them higher than the sky if you want...knock down low flying airplanes with your arches...New Hampshire doesn't care.

So, we drove across the Connecticut River and into New Hampshire immediately after seeing the first set of arches. Then, we headed back across the river and North.

Did I mention that Vermont doesn't allow cellphone towers on top of mountains? A state full of mountains that would be great for placing cellphone towers on top of doesn't allow them. So, there we were heading North and, after a while, my father began to realize that nothing looked familiar. So, he tried calling my uncle, Jim, on his cellphone: nothing. He tried again: nothing.

So, he turned off at an exit and went a few miles to the general store. When he got back in the car, this is what he said: "The people in the store laughed when I told them where we were going and they said that we were just a few miles South of the Candadian border."

My mother, still displeased with my father for having yelled at me a few minutes before for knocking the CD player on the floor and not, herself, being a big fan of Vermont, being lost in Vermont or the country of Canada said: "I want a divorce."

Since the State of Vermont is approximately the size of Pahokee, my father was able to find his way back from the Canadian Border and to my aunt's house in about 45 minutes. It turned out that he had gotten lost because the McDonald's was where it was because of the huge Interstate intersection it sat next to. At the interchange, we were supposed to go West...not North...but my father had forgotten about interchanging because he was concentrating on eating his quarter pounder.

My mother softened her position later that night. She would forgo the divorce if nobody blamed her for not showing up at my cousin's Bat Mitzvah service. She was willing to come to the reception afterward...and to eat and to drink. She just believed that the side trip to the border should get her out of having to spend 2 and 1/2 hours in a Montpelier Synagogue listening to a lot of praying in Hebrew.

This is what I learned from the trip:

1) Laws that don't allow golden arches are facist restrictions on free speech.
2) Laws that don't allow cellphone towers on the top of perfectly good mountains are facist restrictions on free speech.
3) Sometimes, instead of getting a divorce, you should just not go to the Bat Mitzvah.

---------------------------------------------------------
In an upcoming entry, I will describe Aryanna's impression of the Torah portion she read during her cousin's Bat Mitzvah in Montpelier. This will include: ancient Jewish rules on rape and sacrificing small birds.------Bob Smith
---------------------------------------------------------
EDITOR'S NOTE: Bob Smith is a retired South Florida lawyer who now resides in Northern Wyoming, just South of the Canadian Border. Bob is an avid ice-fisherman and moose hunter who makes frequent trips over the border to shop in Medicine Hat.



add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 624 )

MY FAVORITE WARRANTY 
Monday, March 8, 2010, 11:34 AM
Posted by Administrator
Bob Smith, retired lawyer and (recently failed) moose hunter, writes from his cabin in Northern Wyoming:

I spend a lot of my free time now looking at EBay for great things I could buy if I had the money. Moto Guzzi LeMans motorcycles, BMW X5 SUVs, Sunfish Center Console fishing boats with 150 HP 4 stroke Yamahas on the transom. All this stuff is used and all the ads read "SOLD AS IS". Because, if a seller of used stuff does't make it clear to the buyer that the merchandise is sold "AS IS" then the seller....whether or not the seller knows it...is warranting that whatever he/she is selling works well and is without any faults. There is a warranty attached to everything that gets sold (except real estate...houses and lots) and if the seller doesn't "disclaim" the warranty ("AS IS, WHERE IS"), the buyer can (in theory) recover money from the seller.

So, if you buy a snowmobile on EBay and the ad says it is sold "AS IS" then it doesn't matter that after it arrives on the truck from Sasketchuan, you find out that both skis are bent and the starter motor is a rusted hunk of scrap metal. On the other hand, even if the ad didn't say the snowmobile was sold "AS IS", are you really going to sue? Lawsuits cost money and lawyers don't take broken-used-snowmobile-warranty cases for a piece of the action. (If you are badly injured in an auto accident then 33%.....40% if a lawsuit gets filed...of the recovery is the going rate for attorney's fees. Those law firm ads on TV boasting that at THEIR law firm if you don't get money you don't have to pay the lawyers are based on the assumption that there are still a few prospective clients don't know that EVERY lawyer offers the no-recovery/no fee deal......not just the law firms hellbent on spending the most money for TV advertising.)

So, if your Ducati arrives in the back of a trailer two weeks after it left the garage of the EBay seller needing $3,000 worth of work on its desmodronic valves, you are on your own. No lawyer is going to sue the seller for 40% of $3,000 (and no fee at all if you lose or can't collect) even if the Ducati wasn't explicitly sold "AS IS".

In law school there is usually one exam and your entire grade is based on that one exam. The exams consist, usually, of several fact scenarios and you are supposed to write...for each scenario... as much of an answer as you possibly can before time runs out. Here is an example of what I imagine a test scenario in an exam for a course entitled SALES might be (Note: You will have one hour to write your answer):

It is Colorado...outside of Denver. The year is 1972. A man we will call Steve Duhl (because that is his name) has purchased a 1967 Austin Healy MKIII 3000 for $2,500. His friend gives him a ride to pick it up. As they drive away..with Duhl in the lead...the friend (driving a mid-60's Sunbeam Alpine) begins honking his horn. Duhl looks back and sees plumes of smoke coming out of the Healey's exhaust.

Duhl does not find out until years later that to fix the smoking exhaust problem, all he needed was a 2 cent sheet metal screw, one wrench and a free 10 minutes. His attempted fix in 1972 involved pulling the engine from the car and sending it off to a machine shop to have the piston rings replaced.

There was no written agreement between Duhl and the seller and the seller's newspaper ad mentioned nothing more than the year, make and price of the car.

Oh, by the way, at the time of the purchase, Duhl is 17.

Discuss+

+Note: "Discuss" in the context of law school exams means start writing...and don't stop until time runs out or until you lose your will to live.

To Be Continued.............................

add comment ( 3 views )   |  0 trackbacks   |   ( 3 / 489 )

JUDGES WHO HATED ME........HINDU MARRIAGE, PROFFERS, PRESERVATION OF THE RECORD FOR APPEAL 
Saturday, February 27, 2010, 09:30 AM
Posted by Administrator
By Bob Smith:

Frequent readers will have read my entry about Judge Tessel, one of the Judges who hated me. Thinking about Judge Tessel made me remember a small woman from India who I saw about 20 years ago. I don't remember her name....and, as it turns out, her old name isn't her name now.......so, I will call her "Idel".

Idel had been a bank teller in India. According to her...and I've got no reason to doubt it...bank tellering was a premier job for a woman, there. She had graduated college and applied and waited and, finally, the job was hers.

One day a man came to India from Florida and to the town outside Bombay (now Mumbai) where Idel lived. His parents were from there and he had come to find a wife. Through intermediaries, a marriage was arranged between the man...who I will call Veejay...and Idel. They married in India, she quit her bank teller job and they returned to Florida where Veejay was part owner of a convenience store.

But, as it turned out, the marriage didn't last long. Veejay was having an affair with his aunt and he wanted to run off with her and to be done with Idel. So, Veejay filed to divorce Idel and Idel hired me.

The divorce was a big problem for Idel for many reasons:
-She hadn't been married long enough to be qualified to become a permanent U.S. resident, so, she was going to land up back in India.
-Divorced women were vilified in India; seen as damaged goods; had no chance of re-marriage.
-She would never get her bank teller job back: there weren't many jobs for women to begin with; she had quit that one; and...after the divorce...she would be perceived as tainted.
-So, she would likely live in poverty in India until she died at a young age of depression and disease.

But, there was another problem: Hindus believe that they are married for seven lifetimes. So, really, she couldn't get a divorce that would count in Hindu because she had been married to Veejay six times previous or one previous with six to go...or some variation of this. Hindus, she told me, did not believe in divorce.

So, one the one hand, since she'd only been married for a few months before Veejay filed for divorce, Idel was entitled to nothing. And, on the other hand, since Veejay had, in those few months, ruined her entire life, cancelled her future and condemned her to hell on earth, she was entitled to everything. And, on top of that, he had been sleeping with his AUNT.

And, just to tie things together, Judge Tessel had the case.

There was a temporary hearing and the Judge gave her some temporary alimony but he said that he would give her no more. About the other issues: "Short term marriage..too bad, so sad", he said, in these words more or less.

It seemed to me that the first thing we needed was a Hindu Priest...a Brahmin, since in the Hindu caste system, the Brahmins were the priests. This was back in the day when Palm Beach County had industry....and one of the industries we had was Pratt and Whitney. And, as I asked around for a Brahmin Priest, it came as no surprise that one of the engineers at Pratt and Whitney was, in fact...on the side and in his spare time when he wasn't busy designing rocket engines... a Brahmin Priest.

Here was my strategy...I figured that I should:
1) Ignore that Judge Tessel said he wasn't going to give Idel any more alimony, (alimony...a monthly payment...was all she could get, Veejay didn't have any assets), and,
2) Have a Priest ready to testify that Idel would never be able to marry again and that Veejay had ruined her life.

We went to trial. Veejay's lawyer objected that the Priest's anticipated testimony wasn't relevent. The Judge sustained the objection and, probably, this was the right thing to do. Religious Jews can't remarry without a religious divorce, a "Get" (which the Rabbis who give Gets won't give to a woman if her ..ex... husband objects); Catholics can't remarry in the church because the church doesn't recognize divorce...and evidence about these Jewish and Catholic customs never comes in. If you don't like something about your religion...ignore it or convert to a religion you like better. (And then there is the whole separation of church and state thing.....but, I digress.)

After Judge Tessel sustained the other lawyer's objection that the Brahmin Priest's testimony was irrelevent, I told the Judge that I wanted to proffer the testimony. I had two choices:
1) Say...myself... what the Brahmin Priest would have said...and get the lawyer on the other side to agree that...more or less...what I said is what he would have said. The Court Reporter would take what we said down on her little stenograph machine and...in the event of an appeal...all of this would be in the "Record".
2) Have the Priest come in and sit in the witness stand and ask questions and get answers...just as if he were any other witness.

Here is the idea behind a "proffer"......you are going to get evidence on the record but the trier of fact isn't going to pay any attention to it because there has been a determination that, for one reason or another, it is not admissible evidence. (It could be irrelevent, hearsay, based on facts not in evidence, offered without a predicate, unfairly prejudicial, imporoper opinion, incompetent, etc.)

But, if you don't like the result of your trial, you can appeal and ask the appellate court to consider that the trier of fact should have been able to hear and consider the evidence you proffered. If you don't make the proffer, then the appellate court won't be able to consider what the proffer would have been or whether allowing it into evidence would have changed the result of your trial.

In a divorce case (except in Texas where juries hear divorces), the trier of fact is the Judge. If a jury is hearing a case (a civil suit, a criminal trial) and one of the lawyers wants to make a proffer, the Jury is sent off to a room in the back and the Judge sits and pretends to listen. But, if the Judge is the trier of fact, the Judge has two choices:
1) He/she could leave the room and let you make your proffer to the court reporter.
2) He/she could stay in the room.....confident that being a professional judge...he/she will simply ignore what you have the proffer.

Judge Tessel stayed.........and (as Judges always do when a proffer is made in front of them and they are the trier of fact), he did listen.

So, the Priest came in and sat on the witness stand and Judge Tessel was there listening and the testified as I expected him to. And, in the end, based upon what the Brahmin Priest said...that the Judge said he would ignore...he gave Idel a little more alimony. And, we all went home.

Except that the story did not end there for Idel because the Priest.....after testifying that Idel could not be married again because of the Hindu/7 lifetimes thing....decided that Idel's marriage to Veejay didn't count. And, coincidentally, the Priest knew an Indian engineer in Atlanta who was looking for a wife. So...the two of them got married...first marriage for each (I guess)...but, somewhere in the line up of the total of the 7 marriage to each other that they would experience in the course of their respective Hindu eternities.

Since Idel didn't know anyone in town except the Priest (and, I guess, Veejay and his aunt)..........my whole law firm got invited to the wedding. While, I was told, the usual Hindu wedding extended over a few days, Idel's marriage to the engineer lasted only a few hours.

Good food...but, something that I as an unwordly/uneducated/xenophobic American found strange: Idel's new husband got to choose a new first name for her. ....She got not just a new last name but a new first name, too.

A few years later, Idel called me. She was bored...stuck in Atlanta with the engineer. During my years as a lawyer in South Florida (and before I moved to Northern Wyoming, next to the Canadian Border), I met a lot of people who were very happy with their arranged marriages. But, for ?___________? (I don't remember "Idel's" new first name), arranged marriage didn't work out so well....either time that she tried it.
add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 745 )

OTHER JUDGES WHO HATED ME............BY BOB SMITH...JUDGES, INCEST, SPEED TRAPS 
Thursday, February 25, 2010, 07:12 PM
Posted by Administrator
Another day here in my cabin in Northern Wyoming. This morning, I walked over to Canada and gave a moose a hug. And, as I hugged the moose, I thought to myself "I'm going to put off my piece about Hindu marriage until next week so that I can say a few things about the other judge who hated me."

Just to be clear, there have been, over the years, judges who didn't hate me. One, Mike Miller, would stop court every time I walked into his courtroom and announce "Mr. Smith, I can't see anything because of the glare coming off your head." or "Mr. Smith, have you lost even more hair since the last time I saw you?" If this wasn't an expression of love, I don't know what is. And, after messing with me, Miller couldn't very well hurt my clients. And, he didn't. But, I digress.

Before Judge Miller, there was another judge who I dealt with a lot named Don Adams. Don did not think much of insurance companies and, as I believe I have written before, he didn't believe much in giving people points on their driver licenses just because they got a ticket.

-----------------------------------------------------

Back in the day, there was a town called South Bay. Drivers coming from the West Coast of Florida had to drive through it on their way to Miami and the South Bay Police gave pretty much every one of them a ticket. No doubt South Bay made a lot of money from the tickets but, on the other hand, these drivers wouldn't slow down. The ticketed drivers would plead "not guilty" and get a court date and drive 80 miles to the Belle Glade courthouse figuring that the judge there would certainly agree that South Bay was a speed trap and that they had been unfairly ticketed.

Here is what Judge Adams would tell them "I always speed through South Bay and I never get a ticket." And, just so that you know that it wasn't only Adams that didn't get tickets: I sped in South Bay in those days every time I was there. I believed I was part of the Judge's test. ...And I never got a ticket either.

One day a Miami man came to court with a lot of South Bay tickets and a bad driving record and in danger of having his license suspended. At around the same time, a girl named Betty...she was a small African-American girl of around 12 or 13 began who began hanging around the county building. I don't remember why she was hanging around...school project? Someone she knew someone who worked there? I don't remember.

Anyway, Betty had a medical problem and needed a samll medical device that cost around $500...that her parents did not have. Someone brought this to Judge Adams attention at around the same time that the problematic Miami man stepped up to the courtroom microphone. And, here was the deal the Judge gave him: Pay for Betty's medical device and we'll drop the tickets. The man took the deal. Betty continued to hang around the courthouse.

One day, Betty told me that her father had been forcing her to have sex with him. I asked her if she wanted me to call the police. She did. She lived in South Bay.

-----------------------------------------------------
And, while I thought the South Bay Police did a great job of giving out traffic tickets, I, nevertheless thought I should call the detectives in the Sheriff's Office about this one. (Not that South Bay PD wasn't equipped to make arrests...they did have a 55 gallon oil drum filled with cement with handcuffs chained to the top ready to help them hold onto their prisoners.)

Betty's father was arrested and he hired a lawyer named Brice Bream to defend him. One day, shortly after the arrest, Brice Bream..who I vaguely knew... called me on the phone...and, sounding very irate/condescending said...in sort of an annoying/lecturing voice, in more or less these words: "There must have been some other way of handling this instead of calling the police."

This surprised me because...though while at the time I was doing mostly criminal defense work...I still believed that sometimes you've got to call the cops. How did Brice Bream think I should have handled it? Asked the father not to have sex with his daughter and suggest counseling? Okay...but it wouldn't have worked. Tell the mother and have her fix it? The mother denied that anything was happening...mothers frequently choose the husband over the kid...they need the paycheck more than the daughter. (I am not suggesting that kids do not accuse. Of course, note that Brice Bream wasn't saying that his guy was innocent...just that I shouldn't have called the cops.)

I was a little surprised when, years later, Brice Bream became a judge. It seemed to me that Judges ought to think calling the cops is sometimes a good idea....for BAD crimes, at least..and incest with your daughter is a BAD crime. So, I thought, if you believe I shouldn't have called the cops, I've got to believe that you shouldn't be a judge.

In the years before I retired and moved North, I never appeared much before Judge Bream but the few times I did, he visibly stiffened when I walked into the courtroom. He was always civil to me but there was always tension in his voice and he never could seem to make eye contact with me. And the strangest things was that when he looked over at me, standing in front of the courtroom ready to speak, he would press his head...hard... back into the headrest of his Judge's chair. Within the confines of the chair, he was trying to get as far away from me as possible.

I don't think that he has forgotten what he said to me.......or, that in response, I pretty much told him that he was an idiot and an ass. But, I figure that 20 years later, he probably now agrees with me.


3 comments ( 10 views )   |  0 trackbacks   |   ( 3 / 792 )

BOB SMITH RETURNS ........WILLS, JUDGES, MAFIA-SOUNDING-PEOPLE, ATTORNEY'S FEES 
Saturday, February 20, 2010, 08:55 AM
Posted by Administrator
I believe that the Bar has some rules about criticizing the judiciary. So, let me be clear from the start: all judges I have ever met have been fair, honest, God-fearing men and women whose mistakes....if there are any, ever...are few and far between. It would have to be a very cold day in my Northern Wyoming cabin....right next to the Canadian border...before I would say anything bad about a judge. But, still, I am going to change the name of the judge I am going to write about. (Just because you are paranoid doesn't mean that people aren't out to get you.)

Judge Jim Tessel hated me. He never told me that he hated me but every time I walked into his courtroom he visibly stiffened. Though he hated me, he didn't necessarily rule against my client. I remember one case, about 10 years back, (and I don't really remember what kind of case it was) where, after we had a half day hearing, he gave me everything I asked for. He even took the trouble to write his own 3 page order. In the order, he detailed who had said what.

I remember that another lawyer, Kim Todd, had come with me. She had referred the case to me and she had some limited role at the hearing. But, Tessel's Order didn't mention me. Everything I said and did he attributed, by name, to Kim. I pointed this out to Kim and she said "But, he hates me, too."

--------------------------------------------

It didn't seem that he liked anyone except for...maybe...older lawyers who had helped him get elected in the past? (Note: This doesn't mean that he ruled in their favor...just that he didn't stiffen up when they walked in the courtroom.) The local Bar Association...every year...would ask the local lawyers to rate all of the Judges by grading things like their demeanor in the courtroom, fairness, knowledge of the law. Tessel always came in last, so, I guess, feelings were mutual.

Since, in Florida...except when a seat is left vacant mid-term and the vacancy is filled by the govenor...we elect our judges, it seemed strange that nobody ever ran against Tessel. One day, years ago, a lawyer told me this story...in more or less these words:

"Once, a lawyer filed to run against Judge Tessel. One night, two men came to his house and they said to him "You don't want to run against our friend, Jim."

According to the lawyer telling me the story, the rival dropped out of the race. But, just so that nobody thinks that I am accusing the Judge or his supporters of trying to strongarm the man out of the race, I would like to mention the following:

-Back in the mid-70's, I was out on a date in Seaford, NY and, after we had dinner, my purple Renault R-17 Gordini wouldn't start (probably because fate decided that it wasn't bad enough that I was trying to impress a girl with a purple French car so it needed, also, to not start). I had the car towed to my mother's house. The driveway at her house angled up for about 10 feet and there was a high spot where it angled back to level. When I looked at the car after it arrived on the back of the tow truck, I saw that there had been damage to the CV joint boots that looked like it had been caused by the front wheels....locked in gear...hitting that high spot in the driveway leveled off. I called the tow company and asked them to pay for the repairs...they said "no".

A few days later, I drove over to the tow company with my friend Bruce who is a foot taller than me. I told him to come in with me but not to say anything. This time when I asked them to pay for the repairs to the car, they said "yes".

-Years later, Bruce+...by then a (highly successful, premier) caterer (to the stars) in slightly upstate New York...was having trouble collecting money. This is what I told him: "Have you got a friend with a deep voice? Have the friend call the person who won't pay and say "I would really appreciate it if you would pay my friend Bruce by Friday." "Be careful", I said, "no threats...just that they would appreciate it if you got paid".
I do not know whether or not Bruce did this.

It is certainly not your fault if you have friends with low voices or friends who are big. It is not your fault if someone is intimidated as long as your friend says or does nothing meant to intimidate. I have a low voice (in addition to my regular voice)...sometimes, when I leave a phone message to someone who isn't being responsive...I use it. Sometimes, I think, it works.

---------------------------------------
Bob continues: Okay, back to Judge Tessel....

One day, I had a hearing in front of Judge Tessel on a probate casea. It was a long time ago and I don't remember much about it except that I was asking the Judge to order a brokerage company in New York to do something I had no business asking him to order them to do. This was the idea of a lawyer from Vermont who was the best friend of my then-partner's cousin. I didn't think that my request passed the laugh test...but, they were smarter than me and they were paying.

Judge Tessel said "no" to what I wanted and then, out of the blue, this what he said to me: "Bob, you aren't ever going to make any money in the legal business unless you take these Wills over to the law library and spend a few hours analyzing each one."

Now, most Wills are just boilerplate. And "boilerplate" is the term lawyers use to describe:
-A document with a lot of legal sounding verbiage most of which doesn't amount to much...
-That they copied from another lawyer's form and which..
-That lawyer copied from another lawyer....
-Who went to Harvard or Yale and was good for nothing else except for writing things that sounded lawyer-like.

In other words, my 2 and 1/2 year old nephew, Barney, could read a Will and know what it means: Cousin Molly gets 30% and Uncle Bob gets the rest unless he dies before Molly and then his share goes to Molly's kids, Simon and Betty...with this followed by a bunch of that boilerplate stuff. Spending a few hours analyzing a Will would mean a higher bill for the client but, except in the rarest case, absolutely no benefit for anybody except for the lawyer getting paid the higher bill.

I remember a deposition a few years ago. I had just taken on a new divorce client from another lawyer and I was deposing her husband. I asked the husband how much he had paid his divorce lawyer so far, and the answer was "$15,000". On the one hand, this surprised me because the case wasn't complicated; there hadn't been any court hearings; and all his lawyer had done was demand, receive and look at a bunch of financial papers and then reach a temporary agreement on a few of the issues. On the other hand, the lawyer worked for a law firm of middl'in size and associates at law firms either bill a bunch of hours or lose their jobs. So, was the $15,000 unnecessary work just to bill hours? I am not going to be the judge of that.

Prospective clients would frequently ask me...before they hired me...what my hourly rate was. I would tell them "$300 per hour..but" I would say "..you asked the wrong question." The right question is: How many hours do you think it will take? It is less expensive to be fairly billed at $350 per hour than it is to be overbilled for value-less, made-up work at $275.

And, while I guess I felt grateful that Judge Tessel was concerned about my making money...I never could bring myself to cloister myself in the law library and analyze Wills.

NEXT UP...........HINDU MARRIAGE.........

+Note the "Bruce" referred to in this story is no relation to Bruce the dog.... who bit Steve Duhl's pantleg in his entry NEW YEAR'S UPDATE. Bob apologizes for any confusion.
add comment ( 3 views )   |  0 trackbacks   |   ( 3 / 769 )

LONG GONE.................CON MEN, COLLECTION CASES, BARS OF GOLD 
Wednesday, February 17, 2010, 04:33 PM
Posted by Administrator
I can't write my best stories because they involve clients and I don't ever want a client to think that one day they may look here and find that I wrote something about them. But, some clients are long gone....and, so are some lawyers. A few days ago, I phoned my old acquaintance, Bob Smith, to see if he had any stories for the blog. Bob had just returned from the Sobeys market, across the border in Medicine Hat, Alberta. This is the story he told me:

About 5 years ago, an older gentleman came to see me and this is, more or less, what he said:

"I met a man from Belize named Steve Renault (pronounced re no...like the French car... with the accident on the "no"). He told me that in Belize inlets from the ocean formed lagoons and there were many lagoons. He said that he lived near one of these lagoons and in that lagoon there lay a sunken Spanish ship.
Renault said that aboard the sunken ship there were bars of gold worth millions and that he had the rights to take the gold from the ship. But that there was a problem: he didn't have money to salvage the gold."

My client offered to help Mr. Renault...in exchange for some of the those millions. He didn't have much money in cash but he had a couple of credit cards and those credit cards had no limit. So, he lent Renault the cards and Renault ran up bills for plane fare and meals and hotels and everything else he could think of. Renault ran up a bill on one card for about $50,000 and a bill on the second card for about $110,000.

It was unclear to me how meals and hotels (and jewelry and clothing purchases) were related to the raising of the Spanish ship and the recovery of the gold, but my client continued to believe. He believed until the lawsuit came from the credit card company...he hadn't been able to make payment...and then he kept believing.

Renault promised him that the gold was on its way to being turned into cash. Renault said that big money was on its way. So, he continued to believe.

I told him that Renault had to be lying; that nothing he was telling me that Renault had told him made sense; that Renault was probably a made-up name. One day...a few months into the lawsuit...he asked me whether he could bring Renault to meet me at my office. I said "yes" and, a week or so later, I met Renault.

Renault turned out to be a medium size man of medium height with a full head of curly dark hair. His skin was light brown. He looked, I guessed..Belizian. He sat down at my desk across from me. My client sat next to him. Renault told me the story of the gold in the sunken ships in Belize and he told me that the money from the gold was coming...soon... any day...maybe as early as next week.

My client looked at me, then at Renault, then back at me...he looked like he was hoping that I would believe Renault...that I would stop thinking that Renault was conning him. Because if I believe Renault, then it was likely that Renault was telling the truth and that the money really was coming ...his debts would be paid off...and he would have big money to retire on....just like he planned when he lent Renault the credit cards.

In the weeks after I met Renault, my client would call me frequently to say that Renault was going to meet him and bring a large sum of money---wire him money---the check would be there the next Monday...then, the Monday after.

And the lawsuit marched on... Or, perhaps, "march" is the wrong word since "march" implies there was forward movement and, there wasn't.

I asked the court...in the beginning...to dismiss the suit because the credit card company had sued for two of its subsidiaries in one lawsuit. (With few execeptions) two companies can't sue one person in the same suit...so it got dismissed...and then re-filed.

We demanded all of the records of all of the transactions from both credit cards. And I received...after a while...boxes of records. I put the boxes in a corner and never looked at them.

We made offers to settle........and were ignored. We demanded more documents...which eventually arrived. We made complained abuot everything there was to complain about.

After a few years, my client had spent most the money he would have used to settle (had the lawsuit...actually..... marched)...he moved out of Florida to the SouthWest or the NorthWest or to Canada (I'm not saying).

Once he ran out of money, I imagine he filed bankruptcy.

But, there is a silver lining: There is no doubt that Steve Renault is still around.

And, somehow, in a strange way, the world needs people like Renault.
add comment ( 3 views )   |  0 trackbacks   |   ( 3 / 785 )

WHEN YOU GOT NOTHING, YOU'VE GOT NOTHING TO LOSE--- BANKRUPTCY ALTERNATIVES 
Thursday, February 4, 2010, 02:01 PM
Posted by Administrator
It is time to write another entry about legal stuff. Today's subject will be "When you've got nothing, you've got nothing to lose" a quote which I will attribute to Bob Dylan and his song ROLLING STONE or HOW DOES IT FEEL?...I'm not sure of the title.
As always, this relates only to Florida because who knows what insanity goes on in those other states.

Here is the idea:
-You (including your spouse...if you've got one) earn more than the "median income" for Florida (give your size family) and, so, you have (at least initially) failed the "Means Test" and you can't file a Chapter 7 Bankruptcy. (And Chapter 7s are good.)
-After inputting your taxes and includable expenses your income is still above what the statute requires before a Chapter 7 Petition can be filed without a notice going out that there is "THE PRESUMPTION OF ABUSE ARISES". The Notice lets your creditors and the U.S. Trustee's Office and the Trustee appointed in your bankruptcy case know that you may be Playing The System/Wasting Everyone's Time/Filing A Petition You Shouldn't Be Filing. "THE PRESUMPTION OF ABUSE" is a gigantic red flag.


NOTE: The vast majority of people I see for Bankruptcy "Pass" the "Means Test" and so none if this is an issue. DON'T ASSUME YOU ARE GOING TO "FAIL".

-So, (if THE PRESUMPTION OF ABUSE thing applies) you can only file a Chapter 7 Petition if you:
A) File it yourself.
B) Find a lawyer smart enough to file the Petition knowing that he/she can show that your Petition isn't abusive.
C) Find a lawyer dumb enough (or so desparate to make some money) that he she will file the Petition and worry about the consequences later.

-But, probably you shouldn't file a Chapter 7 Petition. ......but, there are alternatives:

ALTERNATIVE NUMBER 1-You could file a Chapter 13 Petition, and....
-Make payments to your creditors ...in some amount... for 60 months and pay the Trustee's 10% on all of your payments and suffer through the Time-Consuming-Privacy-Invasive-Annoyance of a Chapter 13.........or, you could.....

ALTERNATIVE NUMBER 2-Find an alternative to Bankruptcy, and, here is one....it has several important steps and you should probably consult with a lawyer with some experience in the area (or an uncle or cousin or close friend who knows as much or, at least, thinks that they do):

The steps:
a) Determine whether you have assets that a judgment creditor (a creditor who has sued and obtained a money judgment against you) can collect on.
b) Resolve that you will not tease creditors who call by telling them a payment is coming but that you will either not answer the calls or you will:
c) Tell creditors that you don't care that you owe them money (show fear and they will keep bothering you), but
d) If the caller is from India you will ask how the weather is there and then ask a follow-up question about the regional geo-politics or the Caste System (do not ask the caller if all bill collectors in India are Untouchables). ...Because you don't want to be rude to people from other countries and....really.... how often do people from India take the trouble to call you?
d) Take Yoga or otherwise learn to relax (but...excessive drinking and drug use is not an appropriate response to the anxiety of being in debt).
e) Repeat the following three times a day:

MAKING SURE MY KIDS HAVE FOOD TO EAT AND A ROOF OVER THEIR HEADS+ AND SPENDING MONEY FOR THE MOVIES IS A MORAL ISSUE.......PAYING MY CREDIT CARDS IS NOT A MORAL ISSUE.

+Note: Making sure your kids have a roof over their heads does not...in 2010...mean that you should be making a mortgage payment you can't afford (that whole SEE A LAWYER thing works for this question, too).

Note: The credit card companies will not go broke even if you don't pay. 2nd Note: The credit card companies charge lots of interest to insure against the reality that a large percentage of their card holders won't pay...you have been paying all along for their insurance..........now it's time...to, in effect, make a claim.

-After you have been in default a long time, you probably can settle out most or all of the debt NO, YOU DO NOT NEED A CREDIT CONSOLIDATION COMPANY FOR THIS (give the money you would have spent on a CREDIT CONSOLIDATION COMPANY to charity...or your kids...and do it yourself). So,
g) Start trying to save, but,
h) Don't save money in a bank you owe money to.
i) And, I am not a big fan or credit unions.

Yes, there are all kinds of other issues:
-What do I do when the first lawsuit comes? (see a lawyer).
-Can they garnish my wages? (if you are head of household, you have a defense....they can't garnish until you get sued, anyway....and when you get sued you are going to see a lawyer).
-What if I am not comforable about trying to make a deal with my creditors? (see a lawyer).

Here is a great thing about lawyers (but not CREDIT CONSOLIDATION COMPANIES)............if we mess with you, we can get in trouble with the Bar......if we get in trouble with the Bar, we might have to find a real job.......

Like working for a DEBT CONSOLIDATION COMPANY.

....where we can mess you up without getting into trouble.

Note: There probably are some okay companies out there... good luck finding one.)



add comment ( 6 views )   |  0 trackbacks   |   ( 3 / 764 )

THE LAST HAND OPERATED FERRY IN THE UNITED STATES 
Saturday, January 2, 2010, 07:45 PM
Posted by Administrator
The piece that one of my sister-in-laws copied from the Internet said to take Military Road. So, I drove South of our hotel and past the Police Station which is about a twenty five minute walk from the local International Bridge and turned right. I drove past fields of cabbage that looked ready to be picked and fields of brown dirt and some fields of dry cornstalks waiting to be plowed under. To my left, at the edge of the fields were stands of Cottonwood Trees ("Cottonwood" is the name I have given to all short, scraggly trees that line the fields in South Texas).

Beyond the Cottonwoods was part of the new border wall that stands probably 20 feet high near the banks of the Rio Grande River. The wall ensures that illegal Mexican immigrants will be physically fit...now having to both swim the river and then scale the fence.

The Military Road idea didn't work as the road headed left towards another International Bridge about 20 miles West of where I began. I found myself driving past a huge sign that warned that possession of firearms in Mexico is a crime and towards what appeared to be a line of cars stopped for a search on our side of the border. In the old days, you could drive unmolested...by us or them... into Mexico but now I believe we are interested in people bringing cash and guns across the border into Mexico and the Mexicans are interested in stopping guns (and I hope not in getting bribes).

I turned into a strip shopping center a few feet past the gun warning sign and made a U-Turn past a groups of Mexican men, I headed back North and, finally, found Military Road again. In a few minutes, I saw a sign for Los Ebanos Road and, since the last hand operated ferry in the United States is in Los Ebanos, I headed for the road....the road took me back where I started so I drove further West.

At the moment in time that I believed I was in the area of the ferry, I turned South and drove through a residential neighborhood. An old man in a motorized chair (think HumAround) whizzed across the road in front of me. I drove for another few minutes, past a school and then past scrub, fields and a few horses. I found another section of Los Ebanos Road. I turned left...away from a new development and towards the SouthEast.

I drove for a few minutes and, suddenly, the road went over a small bridge and then immediately turned to dirt. It seemed to me that a dirt road called Los Ebanos Road would probably lead to the Los Ebanos ferry. On the other hand, there were no signs and the road was empty.

And, there was a dead white cat smashed as flat as a pancake...centered almost exactly in the middle of the road just a few feet past where the pavement ended. This was not a cat that had been hit by a car. This was a cat that had been run over by a tractor...or a steamroller. This was the flattest dead cat I had ever seen.

I turned back. After a few minutes of re-tracing my route, I saw a car slowly pull away from a house at the beginning of the residential area and next to the pulling-away-car was a man and a boy. "Do you know where the ferry is?" I asked as I pulled up. The man did not speak English. The boy did not know what a ferry was. "Chalan" his father said to him. The old man in the motorized chair was whizzing back across the street and the man called him over.

"Go to the Interstate" the man in the motorized chair told me. "Then go West about 36 miles." He told me to be careful going through La Jola because it was a small town speed trap.

I drove West on the Interstate. It turned into a State Road a few miles East of La Jola and, sure enough, a La Jola cop was trying to pull over a car which was stopped at a traffic light and was having trouble because, it appeared ...and I speculate..., the driver of the car could not imagine why the cop might be interested in pulling him over.

Where rural La Jola meets the city limits of Sullivan there are signs to the right of the road that say "International Ferry" and "Historical Marker". I turned left. A green and white Border Patrol SUV immediately fell in behind me and I drove past two miles of slightly hilly nothing to the outskirts of what must have been Los Ebanos.

I reached an intersection. There was no sign for the Ferry. The Border Patrol SUV was gone. I headed towards the Historical Marker...past several streets of cottage size houses that might have been more at home in Mexico than they were here in South Texas. A crumbling gray brick house joined up with a white brick structure of about equal size; small, elderly, window unit air conditioners jutted at odd angles from a wall or two of every house in sight; carports sagged; fences were rusting. In a large garage a few people were decorating for what was going to be a wedding or quincinera or a too-late New Year's party...music was blaring. In the backyard of a neatly kept stucco house two women and a man sat around a patio table in the late afternoon gray-sky, South Texas gloom.

And then around the corner from the party, past a dirt parking lot, 50 feet down from an empty Homeland Security Trailer and a rickety ticket shack, there was a tiny barge that was the ferry sitting on our side of the Rio Grande. A sign said the ferry closed at 3:30PM. It was 4:05. Across the river, Mexico was about 20 feet away.


1 comment ( 6 views )   |  0 trackbacks   |   ( 3 / 765 )

MARRIAGE 
Wednesday, September 16, 2009, 07:29 PM
Posted by Administrator
I've got two marriage stories that I believe it is safe (from the perspective of not disclosing client's secrets) to tell. Here goes:

ANNULMENT

Someone just emailed me about getting and annulment and it brought this story to mind. An annulment is the court's determination that the supposed husband and wife never were married to each other. To be married, here are the requirements:
1) Get a license from whatever jurisdiction you intend to get married in. Usually, you get the license from the county clerk. You don't have to be a resident there. You just need to apply and pay money.
2) Get a person who is qualified under the law of where you are to marry you: a priest, rabbi, notary, judge, clerk of court, ship captain (though I don't know where you'd get the license from).
3) Get together with your prospective spouse and the person qualified to marry you and then both of you express your present intention to marry each other ("I do" will do).
..........and you're married.

The issue of the fact of the marriage usually revolves around whether when you said "I do" you meant that you right then, at that moment, with (more or less) full mental capacity did...intend to marry...the other person...who, at the same exact moment in time intended to marry you. If you were mentally incapacitated......on drugs.......drunker than crap....you might not have meant "I do" and all you need is to get a court with jurisdiction over you and your spouse or your marriage to declare that you didn't have a present intention to marry and ...your marriage is annulled. ...and you never were married....at least not to that particular him/her.

So, the story:

Years ago, I had a client who told me that the only reason she married her husband was that he threatened to kill her children (from a previous marriage) if she didn't. Years after the "marriage" we sued for annulment. The judge bought her story. She had been unduly influenced...had been deprived of her free will by the threat......never meant the "I do". The court annulled the marriage...making a determination that she had never been married to this guy.

And, my other story: UN-NOT DIVORCED

A few years ago, some people came to see me and here was their story. She was a naturalized American citizen from, I think, Germany and he was a German citizen and they had married and she had applied for him to become a naturalized American and the Immigration people said "no". Their idea was that she was already married...to someone else..so her marriage to the German wasn't valid.

His immigration lawyer sent them to see me. It seemed that Immigration would have to accept that they were really married to each other if a state court judge determined that they were married (the opposite of an annulment.......and I'd never seen a judge declare people married, only divorced or annulled...still, I couldn't think of a reason it couldn't be done).

Immigration's idea was that she was still married to her first husband because, years before, while she was a resident of New York, she got a divorce in the Dominican Republic. New York was and is a tough state in which to get a divorce. My understanding is that you've got to prove adultery or desertion or abuse or you've got to be separated for a year......and the separation has got to be a "legal separation".....a separation that is recognized by the court. My understanding is that in the old days, when this woman got her divorce, you needed both the adultery/desertion/etc. AND the year's separation. On the other hand, Mexico and the Dominican Republic would be happy to give you a divorce..just come with money.

But, the problem was that these other countries didn't really have jurisdiction over the marriage.........you didn't live there.......and they didn't have any right to exercise jurisdiction over your spouse......he didn't live there. And the "due process" rights we take for granted (notice and the opportunity to be heard) didn't apply in these foreign countries. The idea is that if your wife wants to divorce you in the Dominican Republic you should get notice of the hearing and the hearing should give you the right to be heard and present your case AND YOU SHOULDN'T HAVE THE HEARING THERE ANYWAY because you've got nothing to do with the Dominican Replubic, you've never been there, you've never lived there with your wife and what gives some judge there the right to adjudicate your case.

And the New York courts made it absolutely clear in the 70's that these foreign divorces weren't going to be valid in New York...that New York residents remained married until divorced by a New York court...at least until it became clear that a lot of these divorced New York couples had moved on and married other people and had kids. So, faced with the choice of determining that kids who thought their parents were married would be declared bastards and that innocent couples would be deemed bigamists and adulterers, the New York court ignored New York law and their own rulings and said these foreign divorces were, actually okay.

Here is what I did besides doing all this research on New York law:
I filed an action in family court for a declaratory judgment that the ex-German was, in fact married to the German. I sent a copy of our Petition to the ex-German's ex-husband in Switzerland (he had remarried and agreed that they were divorced and was happy to cooperate) and I asked him to prepare some papers submitting to the jurisdiction of the Florida court and agreeing that the Florida judge ought to decide that he was divorced from his ex-wife.

With my papers in hand, I walked into the family division courtroom of Judge Catherine Brunson and waited in the back. Don't tell anyone this but if you want to do something unusual, it pays to be last. Let everyone else go ahead of you. You don't need an audience. You don't need lawyer's raised eyebrows giving the Judge the impression that he/she is about to sign something they shouldn't sign. You don't need to chat about it later with the other lawyers who were looking on. Do your job, keep your head down and leave when you are done.

Here (and, as always with my stuff, I believe), it was all on the up and up but, still the rule applies, because it is the rule.

So, I sat there as lawyers got their clients divorced and lawyers argued procedural things in other clients divorces and, when everyone was gone, I got up and said, more or less "Judge, I need you to declare these people to be married." And I told her about the New York law and the ex-husband in Switzerland and showed her his papers and.......because there was no reason not to.........the Judge signed the papers declaring the Dominical Republic divorce valid and the marriage valid.

And, since the Full Faith and Credit Clause of the Constitution of these United States says that the ruling of courts of every state be recognized in every other state, the ex-German and the German were, in fact, now married in the eyes of every court in the land. And even Immigration couldn't ignore that.
add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 977 )

NOTE TO SELF RE SCHUMACHER INFINITY 
Wednesday, September 2, 2009, 11:44 AM
Posted by Administrator
Note to self re: Schumacher Infinity...

9-2 @ 11:42AM, t/t Mike Heniz, GM of Infinity of WPB who agreed that in exchange for my troubles, they would pay for my 2 major services (really, there is only 1 major service, according to the service dept.)........11:47AM

I believe that this is a reasonable resolution of my problem and I will continue to recommend Schumacher.

I put this here for 3 reasons:
1) My kid has complained that in the beginning of the blog, I would only write about legal stuff and now I write about anything that comes into my head. The above is an example of making a writing substantially contemporaneously with the occurrence of an event...for evidentiary purposes........ to create a business record and to create something that can be used to refresh failed recollection.
2) For evidentiary reasons.........judges and juries will generally believe things that are written down along with a time and a date.........and this is an example of how someone might write something up (though I would be shocked if Infinity didn't follow through on the deal...this is just an example).
3) To remind me that...in three years...my major sevice is on the Sales Dept.
add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 997 )

WHY IS IT A BAD IDEA TO JUMP OUT OF THE SERVICE WINDOW OF YOUR ICE CREAM TRUCK JUST BECAUSE SOMEONE THROWS A FIRECRACKER AT YOU? 
Wednesday, August 12, 2009, 09:41 AM
Posted by Administrator
This is a question that doesn't get asked as often as it should.

And I have avoided talking about it for 33 years (more or less) because of evil insurance companies.

But, now, it is time.

It was a hot Easter week in Hempstead, New York in 1975. Temperatures were in the 90's...and this was before "Global Warming" and, back when the earth was cold. Kids were off from school, they wanted ice cream to help beat the heat and I was driving my Eskimo Pie truck. It was in the middle of Easter week that a teenage kid named Dante decided it would be a good idea to throw a firecracker at me after he stopped my truck. I had thought that he just wanted to buy ice cream.

When the firecracker exploded it was not near as loud as the cherry bomb that had exploded in the toilet when I was using the bathroom at Valley Stream North High many years before. The cherry bomb had my ears ringing for the next two weeks.

Still, the firecracker was loud and the explosion was surprising since I thought I would just be handing over a cone or a pop and making a cool 70 cents. And, when the firecracker went off, I tensed up and then.....

Then, I jumped out of the big window of the Eskimo Pie truck (the window usually used to exchange the ice cream and the money) and started chasing Dante down the street. I caught him after a block or two and then, the question was..........what to do?

I was an adult (albiet a 21 year old adult) and he was a kid and it was bad form for adults to beat up kids. It was also bad form for ice cream men to beat up kids. Luckily, as soon as I had my hands on him, Dante started apologizing and telling me that he had no idea that the firecracker was going to be that loud (and, certainly, no idea that I would jump out of the truck and chase him down).

The aftermath of this was that the jump out of the truck made my neck spasm and I spent the rest of the hot Easter week taking a cut of what my friend Mitch Blank made driving the truck....I was stuck in bed.

If I ever get into a car accident and mess up my neck, my recovery will be reduced by the fact that I had or have a pre-existing neck condition...never mind that it was 33 years ago...my neck is just worth less than your neck. Medical insurance companies will rate me and charge me a higher premium...though I haven't had a symptom in many decades (never needed to see a doctor...participate in sports...can stand on my head). If you are injured there is a great motivation to just keep it quiet (but, of course, not to lie). The people who would want to know just aren't your friends....they just want to know so that they can use it against you later.
add comment ( 3 views )   |  0 trackbacks   |   ( 3 / 968 )

THE THIRD PARTY COMPLIMENT 
Sunday, June 21, 2009, 06:01 PM
Posted by Administrator
I believe I have previously written about the third party compliment...but...it bears repeating. The concept of the third party compliment is courtesy of Ralph...my instructor for my first trip to Burroughs sales school...Southfield, Michigan...maybe...1976...maybe 1977.

Here is the idea:

"Sally told me that she thinks you smart."

If I told you that I thought you were smart...you would likely think that I was just saying that to get something from you or to ingratiate myself to you. But, I'm just telling you what Sally told me. And, since you weren't around, Sally wasn't telling me because she wanted to get on your good side..Sally never thought for one second that I was going to tell you what she said...so, Sally could only have been telling me that you were smart for one reason: because she thought you were smart. ...

And not only did Sally think you were smart but she thinks so much of you that she wanted to tell me that she thought you were smart. You weren't even there at the time so...even when you weren't around it was on Sally's mind that you were smart.

And I think so much of you that I talked about it with Sally and remembered what she told me and took the trouble to tell you.

So, not only are you smart...and you can be sure that nobody is just making that up...but you are such a great person that me and Sally say good things about you when you aren't around and I make it a point to remember the discussion about you and to tell you what Sally said when you and I run into each other. You just are great!

You are going to like Sally even more than you did before....
You are going to even sort of start to like me.

"I like your tie." is a crap compliment.... But, hearing me tell you "John told me he likes your ties." is like having Christmas in July.

Having written this I must issue this disclaimer:
I have never (to the best of my recollection) ever made up a third party compliment and I never will in the future make up a third party compliment. If I say someone said something about you..they did...go ask them.

On the other hand, if someone does start talking about you...and says something nice...I am going to tell you the next time we run into each other.

Oh, and in the unlikely event the shoe is on the other foot...please do the same for me.
add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 958 )

JUST AN OLD ICE CREAM MAN 
Thursday, June 18, 2009, 03:27 PM
Posted by Administrator
A client told me today that the other party in the case had told her "Your lawyer is just an old car salesman." On behalf of car salesmen everywhere, I have to take exception to this. I only sold cars for about a year and a half. I really got my start in sales as an Ice Cream Man.

So, from here on out, I would like to be known as: JUST AN OLD ICE CREAM MAN.

And, while I learned a lot selling cars (especially things about dealing with people and sizing them up quickly...you never knew who the next customer would be at Volkswagen of Bayside), I got one of my first lessons in law at the wheel of the ice cream truck.

Before signing on as an Eskimo Pie man back in or around 1974...and paying for the inventory of ice cream and the rental on the truck...and choosing my ice cream route (Hempstead, New York on an island called "Long" which is slightly off the coast of New York near Manhattan Island)...I first had to spend an afternoon with an established Eskimo Pie man.

As an established Eskimo Pie man, the fellow I went out with sold hot dogs and soda as well as Eskimo Pie ice cream. I would be limited to ice cream and soda. This is what he told me: "Don't ever give the customer the ice cream until they have given you the money."

I thought this was kind of rude.

On my first day on the job, I was parked near Hempstead High School. My first sale was about to happen. A teenage girl walked up and asked for a Dr. Pepper. I handed her a can. She walked away without paying. I yelled at her and told her to pay. She didn't.

So, I drove after her in the ice cream turck, across a road construction site, down an alley. I cornered her and told her to pay me. She said she didn't have any money. I said "Then, give me back the soda." She said "I already opened it." I told her I didn't care. She gave the soda back.

Not being someone who learns lessons quickly, I continued to hand people the soda or ice cream...expecting that they would pay me once they had the item in their hand. And, for the four or five months I worked at ice cream sales, everybody did. Except for the first customer and the Dr. Pepper, everybody paid.

A large part of what lawyers do....especially lawyers who do transactions (buying and selling, for example, real estate and businesses)...is to make sure that the girl doesn't get the Dr. Pepper until the ice cream man gets his 75 cents. Litigation lawyers do it too.

For example, I sent the other lawyer a check for the remainder of his client's security deposit (after a deduction for damages and my fees) and I sent him my clients' written Release of his clients...and he had to hold the check and in his Trust Account and keep the Release in his file.

He sent me the garage door openers and his clients' written Release of my clients. When I get them, I let him know that he can go ahead and give his client the Release and the money.

He is the escrow agent. ...the middle man...the facilitator...the reminder that for as much people claim they don't trust lawyers, really, they do trust lawyers... because lawyers, generally, are trustworthy and because we make a lot of deals happen that wouldn't happen without us. So, go beat up your veteranarian or your dentist and leave us alone.

And, escrow agents are necessary when two sides to a transaction don't completely trust each other. People on opposite sides of law suits frequently don't trust each other.

In an injury case, I have to hold onto my client's settlement money until I send the other side my client's Release of their client (or, if I am dealing with an insurance company, their insured).

For a real estate transaction attorney, this means he or she holds the purchase money and the deeds and, when he or she has both, the deeds go to the buyer and the money goes to the seller. This way, the seller doesn't have to worry about giving the deeds to the buyer and not getting paid and the buyer doesn't have to worry about paying and not getting a deed.

If I give my client the settlement money without send out the Release...if the real estate lawyer gives out the purchase money without recording a deed to the buyer........and putting aside the fact that to do these things could, in some circumstances, be a crime..........at least the lawyer will get reported to the Florida Bar and (should) have his or her ticket pulled.

add comment ( 2 views )   |  0 trackbacks   |   ( 3 / 1020 )

CAN YOU GO TO JAIL FOR OWING MONEY? 
Sunday, May 17, 2009, 06:55 PM
Posted by Administrator
Let me get the easy part out of the way first: YOU CAN'T GO TO JAIL JUST FOR NOT PAYING A CREDIT CARD OR YOUR MORTGAGE OR A HOSPITAL BILL OR YOUR ELECTRIC BILL. You can't even go to jail for not paying your lawyer (but, I believe we are working on this).

Still, if you try hard enough, you can go to jail as a result of owing money. There are several ways to do this:
1) Not paying alimony or child support is contempt of court. The Judgment says you "shall" pay it and, if you don't do what the court says you shall do, it is possible to get taken off to jail for contempt. The courts here in Palm Beach County try hard to just accept non-payment and not send anyone to jail. I understand in Broward they are less sympathetic.

Once you get arrested, you will be brought to court the next morning and the judge will (re-) set your "purge amount"...pay the purge amount and you are out. The purge amount should be set at no more than you can afford and does not usually bear much relation to what you owe. So, if you convince the judge you can only come up with $50.00, for $50.00 you're out even though you owe $10,000.

The federal government/FBI/justice department will send you to jail for not paying your child support if you owe staggering amount, grab their attention and still don't pay. For big money, not paying child support is a federal crime. I have not heard any local stories but, sometimes, there is something about this in the newspaper, and...

2) If you don't pay fines in criminal cases, you can land up in jail.

3) HERE IS THE BIG ONE FOR PEOPLE IN DEBT: A creditor gets a judgment against you and then wants to take your deposition or have you answer questions "in aid of execution". "Execution" is when the Sheriff is sent off to take your property ("execution" ijn this context has nothing to do with executing people) and "in aid of" means the creditor (now judgment holder) wants you to tell them what you've got.

A subpoena, properly served, is a court order for you to come to a deposition or a hearing. If you don't show up----that's contempt. If you don't answer interrogatories (written questions) or if you don't show up in response to a subpoena (or you don't answer questions after showing up), the judgment holder will file a motion (request) for the court to make you show why you should not be held in contempt and the court will have a hearing on the motion. You will get notice (notice and the right to be heard are part of the right to "due process" that is in the Constitution).

If you come for the motion hearing, the judge will tell you to sit for the deposition and give the answers to the interrogatories and all will be forgotten and that you will go to jail if you don't. But, if you don't show for the hearing, the judge will likely find you in contempt of court and issue an order for you to be held in jail until your purge yourself of the contempt. The purge is usually set in the alternative: a) pay the amount you owe the judgment holder, or, b) sit for the deposition. If you don't pay, you will be brought to court the next day and, hopefully, the judge will make the judgment holder take your depostion right then. Otherwise, you'll sit in jail until..............

I have run into only a couple of people in my 25 years who have managed to be ordered off to jail for not sitting for depostions or answering interrogatories as a result of a lawsuit by a creditor. The low number demonstrates that while it is tough to get sent to jail as a result of owing money...........if you try hard enough, it can be done.

THE ABOVE RELATES ONLY TO FLORIDA. WHO KNOWS WHAT GOES ON IN MISSISSIPPI, TENNESSEE, ALASKA, OR HAWAII?
add comment   |  0 trackbacks   |   ( 3 / 955 )

HOW TO GET AN "A" 
Saturday, March 28, 2009, 11:12 PM
Posted by Administrator
My daughter, Aryanna Duhl, who is in the 8th grade, was complaining, this evening, that the kids who spit back what the teacher told them got an "A" but that the kids who questioned what the teacher said and who expressed their own opinion got a "B". I told her that I thought she was right but that I had not figured this out until the second year of law school. She beat me by about a dozen years.

So, here is how to get an "A". There are two parts....I) Spitting back what the teacher says and, II) Studying (this is unrelated to spitting back what the teacher said but I might as well get it off my chest here). Note that neither I nor II relates in any way to math. I never figured out how to do better than a "C" in math.

I) This worked in law school at the University of Florida and I assume it would work in any class dealing primarily with words as opposed to numbers:
A. Do not read the assigned book unless the teacher wrote it. It will only confuse things. The teacher is most interested in their own opinion and not the opinion of the book's author. So, don't read the book...it will only fill your brain with extraneous ("B") thoughts.
B. Take notes. Write down everything the teacher says.
C. Review the notes. I read all of my notes once three weeks before an exam; twice two weeks before; three times one week before; and one more time the day of the exam.


Here is what will happen if I am right: You will see in the exam questions relating exactly what the teacher said in class. For example, if the Contracts teacher discussed as an example in class, something like...a man is interested in buying a horse; he stands with the farmer in the field on the border of the US and Canada and points to a white horse but the farmer thinks he is pointing to the black horse; he pays $1,000 Canadian to the farmer in cash but the farmer puts the money in his drawer without looking thinking all the time that he was paid $1,000 US; the farmer delivers the black horse; the man keeps the black horse for two weeks before calling the farmer to complain...you will find almost exactly the same example on the test. Discuss the issues in the same words the teacher used (they will be in your notes) and you'll get your "A".

II) Unrelated to Aryanna's observation but I might as well get it off my chest.............HOW TO STUDY FOR MULTIPLE CHOICE OR FILL IN THE BLANKS. Again, I did not figure this out until half way through law school (some law school tests were partly multiple choice and the Bar Exam is multiple choice). Here goes:
A. Do not use test questions or examples of tests to test yourself on your knowledge of the subject. Do not have someone ask you questions so that you can see if you know the answer. Instead, read the question and the correct answer together.

Why? Because if you test yourself you will find yourself sitting there, in the middle of the exam, wondering whether the answer you remember as being the correct answer is correct or whether it was one of the wrong guesses you made while studying. My idea is that you only associate the correct answer with the question.

B. Test yourself. A few questions here and there to make sure this idea is working. But, only a few....and then back to question followed by correct answer.

Law school became much easier once I figured this out.
3 comments ( 9 views )   |  0 trackbacks   |   ( 3 / 761 )

NEGOTIATING CREDIT CARD DEBT 
Sunday, February 15, 2009, 09:30 PM
Posted by Administrator
Negotiating credit card debt is a great idea EXCEPT:

1) You probably can't negotiate until you haven't paid for a few months and your credit rating has dropped like a rock.

2) Even if you could negotiate before you stopped paying, your credit rating is going way, way down.

3) If the money you are going to use to pay is your money, great...as long as you don't need to:
a) save it for an emergency
b) spend it on the kids
c) take a vacation before you go insane.

4) But, if you have to take the money from parents or relatives or borrow the money (from a student loan, for example) then....well you know where I am going.

5) If you are going to negotiate debt, try doing it yourself. I have seen ads suggesting that you can negotiate debt down to 40% of the outstanding balance...and I have spoken with people who have negotiated their debt down to 27%.

6) Of course if you can't negotiate down and pay all of your debt...if one or two creditors won't agree...then a lawsuit or two is coming your way and you won't have accomplished much at all.

Explore your alternatives with a lawyer or a financial adviser experienced in this type of thing (though it is probably a violation of the Bar rules for me to mention that it is possible that anyone but a lawyer could figure this out...on the other hand, we are regulated and we do get into trouble if we give crappy advice, don't do what we said we were going to do, steal your money..things like that.

Try figuring out who to complain to if you have trouble with your (supposedly not-for-profit) debt resolution/counseling service. (Note that there is one local agency Consumer Credit Counseling which is a United Way agency. They seem to be honest and trustworthy. In fact, that have such a decent reputation that there may be companies out there using similar names in an effort to mislead people. Or, maybe not....I just find the names of some companies in the debt business confusing.)
add comment ( 3 views )   |  0 trackbacks   |   ( 3 / 936 )

THE RED HERRING 
Sunday, February 8, 2009, 10:26 PM
Posted by Administrator
One of my favorite expressions is "That's a red herring." Unfortunately, I have found that nobody knows what I am talking about. So...

This is my understanding of the red herring.

You are in England and you are going fox hunting. You are nobility or, at least, moneyed. To fox hunt, you need to be on a horse and you need dogs. The dogs will smell the scent of the fox and go off chasing. You will follow on your horse with your fellow fox hunters. The dogs will chase the fox and, eventually, corner it and you will ride up and shoot the fox dead.

Anyway, back to the red herring.

A fox lover will take a herring (which is a fish) and let it get rotten and smelly. Then, before the dogs take off chasing the fox, he/she will get out the herring and walk across the trail he/she supposes the fox will take and then keep walking off into the countryside dragging the rotten fish.

When the dogs take off after the fox, they will be confused by the herring's scent and will make a right turn and head off to follow the fish. You will follow on your horse. The fox will escape.

Now, when someone changes the subject in the middle of an argument to another subject that they are better able to argue or when the other lawyer starts trying to confuse the judge with things that have nothing to do with anything to try to get the heat off of his/her client or when your kid lies and when you catch on says "My throat really, really hurts Mommy"..you can say "That's just a red herring."

Then you can start hoping that someone else in the room knows what you are talking about because, once you say it, it's stick, stack, no take back.

1 comment ( 5 views )   |  0 trackbacks   |   ( 3 / 1030 )

THREE BAD CHOICES 
Wednesday, January 28, 2009, 10:16 AM
Posted by Administrator
Clients are always looking for the good choice: The million dollar offer (on a case worth 20% of that); Don't pay bills but keep your credit rating; Write a threatening letter and she will send back the engagement ring along with a check for the $10,000 that you lent her to send to her brother in Brazil; He/She will agree to pay the $5,000 a month in alimony...no trial, no risk, just ask and you get it. But, usually...almost always....in this business there are no good choices and you've just got to pick the choice that is least bad: Run the risk of going to trial and getting nothing for the chance for the big money...or, take the offer; Sue your ex-fiance and go through the emotion of seeing and dealing with him/her again...or write off the ring and the loan; Forget about the alimony and move on with your life or go to trial and accept that the judge is going to hear that you were a coke addict for half of your marriage.

But, typically, clients can't decide because they are looking and looking and looking for the good choice. There must be a good choice. Right? You tell them the three choices, A,B & C and they keep looking for D. I truly and deeply wish there was a D. I would sleep better at night. I would not be laying awake...as I often do...looking for D. (I do note that sometimes there is a D and the client or I come up with it but, back to reality...) Usually there is not D.)

So, here is the story I tell to try and get clients to understand that there is no D and to pick A,B or C so that we can move on and make progress and resolve things:

About 8 years ago, I had to get a surgery on my nose for skin cancer (not melanoma and not basal cell, the other kind) and, after the surgery there was a deep ditch on the right side. Anticipating the deep ditch, the skin cancer surgeon was scheduled for the morning and, in the afternoon, it was off to the plastic surgeon.

Around 1:30PM, I sat in a barber type chair in the plastic surgeon's office and he said:
"You have three choices: I could take some skin from in back of your ear and graft it onto your nose; We could just leave the whole thing alone and it will heal...but there would be a deep depression where the cancer was; Or I could cut a piece of skin from above the surgery site leaving the bottom part of the skin attached and rotate it down to cover the hole."

The good thing about the last option, he said, was that it would leave some capillaries attached to the flapped skin and might heal faster and better on account of the uninterrupted blood flow.

I said "I know this one, I have three bad choices and I have to pick the one that is least bad." I picked the flap.

By the way, it didn't work as well as I'd hoped.


4 comments ( 28 views )   |  0 trackbacks   |   ( 3 / 937 )

FORECLOSURES, DEFICIENCY JUDGMENTS, PMI 
Wednesday, January 28, 2009, 09:50 AM
Posted by Administrator
If you had to buy PMI on your mortgage (typically, because you put less than 20% down on the home purchase), you have the following additional problems as housing prices drop and trouble with paying the mortgage(s) increase:

I) The mortgage company is going to be made whole (or near to whole) by the PMI carrier when, after foreclosure, the house is sold for less than what is owed. If, at the time you financed, you were forced to buy PMI, you have been paying the insurance premium for this and now your mortgage company isn't going to want to negotiate with you because, in the long run, the PMI will pay for any loss (when the house sells at the foreclosure sale for less than you owe). So, PMI=no deals on modifications or short sales.

II) Though historically in Palm Beach County (and history is always subject to change), there have been few mortgage companies that get judgments against homeowners for a deficiency in what is owed after a foreclosure and sale, PMI companies obligated to pay mortagees the difference are going to sue homeowners for what they are out-of-pocket.

Bankruptcy (if you qualify) will solve the problem but remember to get the name and address of the PMI carrier and list it in the Bankruptcy Petition.
3 comments ( 26 views )   |  0 trackbacks   |   ( 3 / 1013 )

CHATTING WITH OUR FRIENDS, THE BILL COLLECTORS 
Friday, January 23, 2009, 09:00 AM
Posted by Administrator
Filing bankruptcy (there are a few exceptions) results in an automatic stay aainst any creditors taking collection action against you, phoning you, harassing you, suing you, continiung with lawsuits already filed, garnishing your wages........without first going to court and getting the Bankruptcy Judge's permission. Except in the case of, for example, mortgage forecloses (on a house not being paid for) or the repossession of a car (that you aren't paying for), creditors don't even ask for permission to proceed against you, they just fold up their tent and go home.

But, before you file bankruptcy, those unpaid creditors do have people (both Americans and people working for outsourcing firms in third world countrys) phone up and ask why you haven't paid. Here is what to do:

1) Don't talk to them. If you talk to them, they may perceive that you feel guilty about not paying and that you are on the verge of borrowing from your mother, brother or home equity line of credit to pay them. This will encourage them to keep calling back until they guilt you into paying.
2) If you find yourself on the phone with a collection agent say:
"I have no money. I'm never going to pay you. Have a nice day" and hang up. If you show no fear of not paying, the collector will be more likely to spend time beating up people who do.
3) Never, ever, ever say that you are going to pay something....they will beat you up for more. Never, ever, ever say that you are going to take the $500 you have to pay your credit cards and divide the money up between all of your cards. If you say this, they will know that you have money and beat you up to try to get you to pay all of it to them.

Remember, collection agents don't get to keep what you pay. They just want to close your file and move on. They can close your file if:
A) You pay.
B) You file bankruptcy.
C) You die.
They will love you just the same whether they get to close your file for reason A, B or C...though try to avoid reason C.

Be fearless in the face of debt you are unable to pay (as Truman said "The only thing we have to fear is fear itself"). As long as you have food and a place to sleep and a few bucks in your pocket, you're good. Paying your credit cards (if you can't afford to) won't make your life any better. It isn't a moral issue. The credit card companies won't go out of business just because you don't pay. This is a capitalist society and, to make it work, sometimes people (and businesses) need a fresh start. Your creditors knew that some people weren't going to pay when they made their loans. That is why interest rates are as high as they are: they are insuring themselves against the losses they knew they would incur. You paid the high interest....so you paid for the creditor's insurance. There should be no guilt if you don't pay because you can't pay.

Remember though...don't pay back family members when you aren't paying back other creditors. This will cause problems down the line. You can pay them back later...just don't pay them back now...if you go bankrupt, they won't get to keep the money.

But, back to bill collectors: You didn't ask them to call; you have little in common with them; and you don't want them to call back, so, don't talk to them. Get rid of your answering maching and get a caller ID. You don't need an answering machine. You know your mother's number and you will see her number if she calls and call her back. You don't need to be listening to annoying messages from collectors.

Yes, I know there will be a great temptation to assume that all collectors now are from India and to ask them whether they saw the movie Slumdog Millionaire and whether it is an accurate depiction of life there. But, not all collectors are from India...some are from Sri Lanka and what do they know about Mumbai?
2 comments ( 10 views )   |  0 trackbacks   |   ( 3 / 1019 )

THE LETTER 
Wednesday, January 21, 2009, 12:08 PM
Posted by Administrator
Letters from lawyers solve problems and get results.........r a r e l y. But, sometimes. For the most part, letters from lawyers are thrown in the trash.

If you don't pay the money, move out of the apartment, stop competing with your former employer, stop calling your former employee bad names when new, prospective employers call you will get sued...the lawyer's letter says. But, will you?

I don't like writing letters because my name is on the line. I write that my client will sue you if you don't do/stop doing what I decree. There are bad things about this from my perspective:

1) It isn't nice to threaten. Lawyers sometimes can't be nice but we want to be nice and we want to be paid well when we have to be rude, abrasive or obnoxious. There isn't much money in writing the lawyer letter.

2) I have threatened that my client will sue you if you ignore the letter. But, what if the client changes his/her mind? What if they don't want to spend the money to sue? My threat will be an empty threat and you will tell all of your friends to ignore letters from lawyers and, especially, that guy Duhl. He is just full of hot air.

Sometimes, it is helpful to write a letter just to see if the other side wants to give you their version of the facts:

"I am writing for the purpose of investigating the facts surrounding an incident where you, from what I have heard, told my client's prospective employer that she stole from you. This statement may be slanderous but, before proceeding, I want to make sure that the facts I have are accurate. Please provide me with your knowledge of what happened during the conversation in question within ten days or I will be forced to conclude that what I have been told is accurate and we will proceed accordingly."

This may put a scare into the other side without the letter writing lawyer having to threaten the lawsuit that may not come to pass.

Sometimes, you can mention bigger trouble if the other side doesn't do what you want:

"As you are aware, the engagement ring that you received from my client was a gift with a condition subsequent. The condition subsequent was marriage. Since you broke off the engagement, the condition subsequent was not fulfilled, the ring is not your ring and it must be returned.

Florida law provides that retaining property that is not yours may be civil theft and that damages for civil theft are three times actual damages plus attorney's fees and costs.

Please contact this office immediately regarding return of the ring. If we do not hear from you in ten days, we will conclude that it is your intention to keep the ring and we will proceed accordingly."

Now, if you don't return the $5,000 ring, you may owe $15,000 plus your ex-fiance's attorney's fees. It is easy to say "no" if your choice is returning a $5,000 ring or being sued for $5,000. Wait until you are sued...maybe you won't be. It is a little harder to look at maybe having to pay $15,000+ and all you get is a piece of ancient rock from Zales.

Lawyers letters are maybe worth something if they can legitimately contain a big downside if you don't comply or if they solicit information....where providing the information may make you uncomfortable or have you thinking that you did something wrong and trouble is about to follow.

Otherwise, why not throw the letter in the garbage?


3 comments ( 38 views )   |  0 trackbacks   |   ( 3 / 1044 )

WHAT THE GUY WITH THE PUSHCART AT THE MALL TOLD ME 
Friday, December 26, 2008, 04:35 PM
Posted by Administrator
One day probably 20 years ago, I went with my (then) wife to the Palm Beach Mall (the one on Palm Beach Lakes Blvd. that looks now like it is due to shut down) and stood around while she bought shoes. There was a man with a pushcart outside the shoe store. On his cart were stacks of VCR tapes which, based on the cart's signage, were instructional videos on credit repair.

Having time on my hands, I walked over to the man with the cart and said, more or less: "I am a lawyer and I would like to know how people can repair credit but I do not want to pay money for your VCR tape." This is what he told me.

"You need to send a letter to each of the credit reporting agencies (note: that would be TRW, Equifax and Experion) detailing each entry you dispute and telling them that they need to remove it from your credit. They then have 30 days to verify the entry or they have to take it off your credit. If they verify the entry just send out another letter saying the same thing and, eventually, they won't get a response and they will take the bad entry off your credit."

I believe that many people have successfully used this method (I do not know if any of them bought the VCR...I do not know whether their letters to the credit agencies were truthful or just something like "This is wrong, I never made a payment late"). And, all of this could end up with having no credit entries at all....but I have not heard that complaint.


1 comment ( 5 views )   |  0 trackbacks   |   ( 3 / 1118 )

THE LAWYER-CLIENT PRIVILEDGE-PART II 
Tuesday, December 9, 2008, 08:58 AM
Posted by Administrator
Lawyers are a pretty honest bunch, I think, and nobody wants to lose their ticket (their license to practice law). So, it is awkward when potential clients come in and ask (in a divorce case or a bankruptcy or after a money judgment gets entered---where the client's assets are an issue) "Can I just give my jewelry to my mother?" No, you can't. The jewelry will still be your jewelry because you don't really intend for your mother to own it (and there is another, similar, answer if you say you really do want your mother to own it). And, if you give the jewelry to your mother because you want to hide it from creditors, or your soon-to-be-ex spouse, or the other side of a case, you probably are not about to help your case much. Will the transfer to your mother lead you to lie under oath? Is the end result of "giving" the jewelry to your mother going to end up up being a crime? (Maybe the jewelry isn't worth as much as you think and the whole issue isn't worth agonizing about. Certainly, there is a different solution to the problem.)

I have written before about the difference between old crimes......committed before the client sees the lawyer (totally confidential) and new crimes......crimes the lawyer knows you are about to commit (most commonly, perjury...and totally not confidential).

New crimes....for example, when you tell the lawyer you have $100,000 in the bank but are about to swear that you have only $1...aren't covered by the priviledge. And it makes sense, the lawyer shouldn't be involved in the client's plan to defraud the court or the party on the other side. We aren't going to tell you how to hide your jewelry from creditors and we aren't going to help you put in place your plan to be a cheat...at least not knowingly. The problem is usually easily solved, the client gets reminded that the lawyer can't participate, that he/she will get caught and sent to jail, and the client gives up the idea.

The bigger problem is that some clients tell lies or forget things and the lawyer finds out later. A few months ago, I went to a "341 Meeting in a Bankruptcy". One of the questions in the bankruptcy petition, under oath, is whether any property was transferred (bought, sold, traded) in the past year. My client's answer to the question was "no". At the Meeting, the Trustee asked whether my client had owned property in the past year. His answer was "yes", he had a hourse and he sold it. The Trustee looked at me.......I sank down in my chair. I should have caught this when we did the Petition...I should have sensed there was a house...I should have smelled the house. I have been doing this for 25 years and there is no excuse. I am supposed to catch this stuff.

Thanks to this crappy market, the client's house had been sold without realizing one penny for him, so, no problem...it was obvious he had just forgotten and that he hadn't intended to lie or defraud anyone....except that I felt stupid. But, how about a client who said he had $1 in the bank but really had $100,000 and the lawyer finds out after the $1 had been sworn to? Here is what we have to do:

1) Tell the client that they have to advise the court of the mis-statement and
2) Advise the client that if he/she does not disclose the mis-statement that (as the lawyer from the Bar Ethics Hotline told me not too long ago) the lawyers obligation of honesty to the court "tumps" the client's priviledge.

In a civil case, the lawyer is obligated to rat out the client. And, if the lawyer doesn't rat out the client he/she is in violation of the ethical rules and, in addition, will probably be deemed to have joined up with the client's conspiracy to defraud the court and/or the other party. This would be criminal and the client and the lawyer can go off to jail together.

I wrote previously about how this applies to criminal cases. It is a little different. It is rare for a criminal defendant...especially in a serious case...to admit to the lawyer that they did it. Criminals tend to be smarter than we think and they know that as long as they claim innocence, their lawyer will work day and night to make their charges go away. No innocent man or woman should have to spend one day in jail. For defense laywer, it is a moral issue.

On the other hand, once they admit they are guilty, human nature takes over and it is not the moral issue for their lawyer that is once was. The lawyer will still try real hard, but now there is something missing: innocence. I remember years ago (not my case)...a young man of about 18 was charged with stabbing his girlfriend to death and leaving her in her upstairs apartment lying in a pool of blood. He swore to his lawyers he was not guilty and they worked day and night to save him.

One day, he changed his story and admitted he stabbed her. They pled the case out within the week. Did it plead out so quickly because the lawyers lost their spark, because they no longer feared long, sleepless nights regretting that they didn't do all they could to get this guy out of jail? Who knows? Still, I understand why criminal defendants (almost) never admit their guilty (and, always keep in mind: MANY REALLY AGREN'T GUILTY).

Note: My only link to the murder case came one Saturday morning when I was at the Gun Club Road jail seeing clients. I wandered throug the court room at the jail to see what was a going on (Saturday morning first appearances...whoever was arrested the night before) and there was the murderer's other girlfriend. She had been arrested for slipping him marijuana during a visit at the jail. I told the judge that I knew her (which I did) and that she was a nice, local girl....and she got released from jail to await her trial...probably nothing to do with what I said.
add comment ( 3 views )   |  0 trackbacks   |   ( 3 / 991 )

ATTORNEY FEES-A BRIEF EXPLANATION 
Friday, December 5, 2008, 10:08 PM
Posted by Administrator
There are generally three ways for lawyers to calculate fees:

1) Hourly. This recognizes that for many kinds of cases, litigation particularly, it is impossible to figure out in advance how much work will go into resolving the case. Will it go to trial? Will it settle at court ordered mediation? Or before? Is the other party and/or the lawyer reasonable and eager to resolve things or crazy-nut-interested mainly in making the other side's life a living hell. How much does the other side have to spend on fees? How interested in the other lawyer in resolving things vs. running up a big fee to make his or her next yacht payment?

2) Contingency. The lawyer gets a piece of the action if there is a recovery. If there isn't a recovery, the lawyer doesn't get any fee at all and probably doesn't get paid back for his or her out of pocket costs. Lawyers like contingency fee cases if:
a) The other side is clearly liable for damages to his/her client.
b) There is money to pay for the damages...insurance or a deep pocket on the other side.
Clients like contingency cases if:
a) The client doesn't have money to pay an hourly fee, or,
b) The client wants the lawyer to take the risk of losing the case.

Very few cases except for injury cases and big money collection cases are handled on a contingency basis. Almost all injury cases are handed on a contingency basis ("no recovery, no fee").

In Florida, there is a standard contract the Florida Bar requires that clients sign and a Statement Of Client's Rights that the Bar also requires. This says, among other things, that you have a few days to fire your lawyer without having to pay the lawyer anything (you have a right to fire your lawyer any time you want but they will probably be entitled to a fee for work they've done) and that you have right to negotiate the percentage of the recovery the lawyer will get as a fee (yes, you can try to negotiate the percentage of the lawyer's fee).

For lawyers, the perfect case is, for example, an auto accident cases with damages worth, say, $150,000 and policy limits (the most an insurance company is obligated to pay) of, say, $100,000. The insurance company will pay the $100,000 quickly and without trouble in exchange for a Release from the injured client to the insured. The lawyer will explain to the client that the smart thing to do is take the $100,000. The lawyer will get a fee of between $33,000 and $40,000 (depending primarily on whether a lawsuit was filed) for minimal work. On the other hand, if the lawyer isn't advertising on TV, the lawyer isn't getting these csaes.

Note that contingency fees are illegal in criminal cases and divorce cases...something about lawyers being tempted to cheat in these kinds of cases if their compensation is tied to the result (e.g. the lawyer only gets paid for a "not guilty" verdict).

3) Flat Fee. If the lawyer can make a reasonable guess on how many hours it is going to take to do the work, the lawyer may take the case for a flat fee. The fee won't change with the amount of work the lawyer does. Flat fees are common for Wills, Trusts, criminal cases, simple divorces (no property, no kids, short term marriage), name changes, and bankruptcies. But, you may be able to negotiate a flat fee for other types of cases. For example, if you are looking for a lawyer for a divorce case, your lawyer might know the other lawyer and might have had similar cases with the other lawyer. This makes it (somewhat) easier to figure with some certainty how much time your divorce will take. Multiply the time by the hourly rate...add in a fudge factor and there is the fee. Flat fees insulate you from the possibility of a huge bill if your case gets complicated. Flat fees are the rule in criminal cases where you are paying your lawyer as much for what he or she knows and who he or she knows as you are for the time the lawyer puts in. A lot of what lawyers do in criminal cases is spend their goodwill and goodwill does not come cheap.

IV) THE OTHER SIDE PAYS Okay, there are at least four ways that lawyers charge fees. There are some kinds of cases where the other side pays the fee most of the time.

Generally, in Florida, you pay your own fees, win or lose, BUT: If the other side makes a frivolous claim against you, they may end up having to pay your fees. If you are involved in a divorce case, your spouse may have to pay most or all of your fees if he or she has a much better ability to pay fees than you do. There are ways to make an offer in the course of a civil lawsuit that will result in getting a judgment for fees against the other side if, after a trial, they don't come close enough to matching your offer. Contracts usually provide for the defaulting party to pay the other side's fees. Credit card agreement provide that you have to pay the company's attorney's fees if you don't pay your bill. Same thing for mortgages and car loans.

AND, there are some laws that are designed to encourage lawyers to file lawsuits by providing that the lawyers will get fees from the company they sue if the lawsuit succeeds. Lawyers can get their fees for suing for unpaid wages and, a big thing now, for suing companies that fail to pay workers time and a half for overtime. If your company has failed to pay you overtime, this could be worth pursuing. My friend Mark Cullen just got paid a truckload of money for attorney's fees for representing dozens of workers in an overtime case. I'm sure he would be willing to consider taking on similar cases.

SINCE THIS IS THE INTERNET, YOU SHOULDN'T BELIEVE ANYTHING YOU READ IN THIS BLOG. GO SEE A LAWYER.
1 comment ( 12 views )   |  0 trackbacks   |   ( 3 / 879 )

ONE MORE THING ABOUT BANKRUPTCY..........CAR INSURANCE 
Tuesday, December 2, 2008, 11:46 AM
Posted by Administrator
In Florida, if you are involved in an accident and you are at fault and you don't have insurance or your insurance is not sufficient to cover the claims against you, your driver license will be suspended under the Financial Responsibility Act. You won't be able to get your license back until you pay what is owed; make arrangements to pay what is owed over time that are acceptable to the other side; or file bankruptcy.

But, if you've filed bankruptcy within the past several years, you probably won't be able to file again.

So, GET GOOD CAR INSURANCE WITH HIGH LIABILITY AND PROPERTY DAMAGES POLICY LIMITS. $300,000 IS A GOOD START BUT FOR A BAD AT FAULT ACCIDENT, YOU PROBABLY NEED COVERAGE OF $1 MILLION OR MORE.

AND BANKRTUPCY WILL MAKE YOUR CAR INSURANCE RATES GO UP (SO DOES BAD CREDIT). So, this is a downside of bankruptcy (but, probably no worse then if you have bad credit and don't file bankruptcy)...increased insurance premiums and a need to buy a high limit policy so an accident doesn't result in the suspension of your driver license.

Be aware that while personal injury lawyers generally have no interest in cases against people with no insurance and will settle cheap if there is little insurance, INSURANCE COMPANIES WHICH PAY OUT TO THEIR INSURED FOR COLLISION DAMAGE OR UNDER THE UNINSURED MOTORIST PORTION OF THEIR POLICY WILL SUE TO GET THEIR MONEY BACK FROM THE AT FAULT DRIVER WITHOUT REGARD TO INSURANCE. THEY'VE GOT LAWYERS WHO WILL WORK CHEAP AND THEY WILL SUE YOU EVEN IF YOU'VE GOT NOTHING. THEY KNOW THAT YOUR DRIVER LICENSE WILL BE SUSPENDED IF YOU DON'T PAY...so, you'll probably make arrangemtns to pay (how does $200 per month for 20 years sound?).

SO, GET GOOD CAR INSURANCE. ACTUALLY, GET GOOD CAR INSURANCE WHETHER OR NOT YOU ARE GOING TO FILE BANKRUPTCY. AND GET UNINSURED MOTORIST SO YOU ARE COVERED EVEN IF YOU GET INTO A COLLISION WITH SOMEONE WHO DOESN'T HAVE INSURANCE (and it is the other driver's fault).
1 comment ( 12 views )   |  0 trackbacks   |   ( 3 / 1041 )

BANKRUPTCY-----THE CHAPTERS 
Tuesday, December 2, 2008, 10:38 AM
Posted by Administrator
There are several bankruptcy "chapters".

-Chapter 7.....FOR PEOPLE....Bankruptcy for people whose household income is less than the median (for Florida) and some families that earn more but have, for example, a big mortgage they are paying on. Banktupcy for people who have cars with car loans (or who drive 2002 Buicks); whose homes are not extravagantly furnished; who maybe have an IRA or a 401K that they need for retirement.

-Chapter 7....FOR CORPORATIONS...that need to liquidate in an orderly fashion. For example, a furniture store full of furniture or a clothing store full of clothing. Probably not worth the trouble for an asset-less business that is shutting down but consider a personal Chapter 7 (or 13) in regard to personal liability for the owner.

-Chapter 12......FAMILY FARMERS...If you are a family farmer and are considering filing bankruptcy, call and I will tell you who to go to (here in Palm Beach County there is...to the best of my knowledge...one or two lawyers who do this).

-Chapter 11.....REOGANIZATION FOR CORPORATIONS AND RICH PEOPLE...Again, I'll tell you who I like for this but I won't do it. Chapter 11 is, I think it is fair to say, costly.

-Chapter 13....PAYMENT PLAN BANKRUPTCY FOR MOST PEOPLE...who earn too much money to file a Chapter 7, have a lot of non-exempt assets they want to keep, and/or have a secured loan (e.g. mortgage) that they are behind on and need time to get current and/or have a 1st mortgage that eats up all of their home equity and a 2nd or 3rd mortgage on top of that. Chapter 13s require payments, usually for 60 months (though the payments are usually based more on income that what you owe). There are lawyers who enjoy this type of work....call and I'll tell you who likes it best. I don't enjoy it.


TIME PROBABLY TO REPEAT THAT REQUIRED LANGUAGE.

I AM A DEBT RELIEF AGENCY AND I HELP PEOPLE FILE FOR BANKRUPTCY UNDER THE UNITED STATES CODE.

ALSO, SEE A LAWYER TO GET FULL DETAILS...THE ABOVE IS A GENERAL OVERVIEW OF THINGS HERE IN THIS PART OF THE SOUTHERN DISTRICT OF FLORIDA....IT IS BASED ON MY EXPERIENCE, ONLY AND IS PROBABLY FULL OF ERROS...DON'T BELIEVE WHAT YOU SEE ON THE INTERNET....AND DON'T BELIEVE WHAT I HAVE TO SAY (OR DECIDE THAT IT RELATES TO YOU) UNLESS YOU HEAR IT FROM ME, IN PERSON.
add comment ( 4 views )   |  0 trackbacks   |   ( 3 / 946 )

THE ATTORNEY-CLIENT PRIVILEDGE........MY END OF IT 
Monday, November 10, 2008, 10:43 PM
Posted by Administrator
The couple of times, so far, I have written about actual clients, I have changed names, dates, and places so that while I am able to illustrate my point there is no real chance that anybody would know who I am using to illustrate it. I don't think the client him or herself would know. If you think a client or a situation involving a client is recognizable in any way, let me know and I will delete the entry.

What I know from my clients, I am obigated to take to the grave, telling nobody (see entry below regarding lawyer/client priviledge for details). Mostly, this blog has nothing to do with clients, past or present. For example, in the following entry, I mention someone named Joe Trivisone. Joe never has been my client. I knew him 30 years ago. I always liked and respected Joe so I don't see why I should make up a name. I Emailed him before writing the entry and he did not object to my using his name.

So, to my clients, be assured that neither your name, your identity or your story will appear in this blog...unless you give me a good idea and I put it in and, with your permission, attribute the idea to you.
add comment ( 7 views )   |  0 trackbacks   |   ( 3 / 808 )

WHAT'S THE BENEFIT? 
Monday, November 10, 2008, 03:40 PM
Posted by Administrator
Lately, not surprisingly, I am seeing a lot of people about bankruptcy.

So, let me review the benefits of bankruptcy. Listing the benefits does not mean there isn't a downside....there is. Listing the benefits does not mean that everyone can file and enjoy the benefits....not everyone can. Still, here are some (possible/probable) benefits: (DISCLAIMER: THE BAR MAKES US TELL YOU THAT THERE ARE NO GUARANTEES, NO PROMISES, RESULTS DEPEND ON A VARIETY OF FACTORS AND WILL DIFFER FROM PERSON TO PERSON. The only way I know of to determine what you can expect is to see a lawyer and lay it all out.)

Bankruptcy:
-Gets rid of credit card debt.
-Gets rid of medical and hospital bill debt.
-Gets rid of debt arising from deficiencies remaining after foreclosures and repossessions.
-Stops lawsuits, including foreclosures.
-Results in an immediate and continuing order that creditors not contact you, bother you or harass you in attempting to collect a debt.
-Eliminates the tax liability that arises, sometimes, from having creditors forgive debt...short sales of other than primary residence, write downs, etc.
-Is (relatively and most of the time) painless.
-Will help you sleep at night, relieve some anxiety and make life better.
-You can keep you house (if you are on time with payments and continue to pay).*
-Same with your car (if you have little or no equity).


*As I have written in previous entries, the issue of keeping your "underwater", in arrears primary residence by having your mortgage re-written on more favorable terms is evolving day to day. If you have recently been served with a foreclosure lawsuit, hire a lawyer to defend it for you and be optimistic that a solution is around the corner.

1 comment ( 5 views )   |  0 trackbacks   |   ( 3 / 792 )

MORE BANKRUPTCY-NO CROOKS, PLEASE 
Saturday, November 8, 2008, 09:20 PM
Posted by Administrator
OK, so you've saved six months of paystubs (the lawyer needs to review all of your "payment advices" which, for self employed people means evidency of everything you've been paid....pay for food at Publix with a debit card linked to your bank account, if that is where your business money goes, then that portion of your bank statement is probably a payment advice) and from the paystubs (and payment advices) your household income gets computed and that determines whether you can file a Chapter 7. Bored yet?

Oh, and pay stubs (payment advices) for the sixty days before you file bankruptcy have to be filed with the bankruptcy petition.

And, before you file, you've got to get a certificate evidencing completion of a pre-filing session in finance (my clients do this in 40 minutes over the phone with a company I hire for them and the certificate is Emailed to me). The certificate and a statement signed by you get filed with the Petition. Bored yet?

The Petition itself...about 30 pages...gets printed out and reviewed by you and signed but it never makes it out of the lawyer's file. Instead, the Petition, along with scanned in pay stubs, scanned in certificate, scanned in statement that you took the course, and scanned in certification that you know the Petition is being electronically filed is sent electronically to Bankruptcy Court. After it is sent over, the filing fee is paid by (the lawyer's) credit card. The paperwork is retained in the lawyer's file in case he or she is audited to make sure that you really did sign off on everything. Bored yet?

About 30 to 40 days after you file, you've got to go to a "Meeting of Creditors". As I have written previously, with few exceptions, creditors don't come. So, you and the lawyer and the court appointed Trustee sit in a room and the Trustee asks questions:

"Did you read the Petition your lawyer prepared before you signed it?"
"Did you list all of your creditors and all of your assets?"

And, then some questions specific to you:

"When did you buy your house?"
"How did you come up with the value for your boat?"
"What did you do with the money from the house you sold last year?"
"Why did you pay your mother back $750 last March?"

This is when the Trustee has a look at you and your Petition and decides whether you are being honest and forthcoming or whether you are hiding something. If you have a $100 haircut, you will get asked more questions. If you look like you had a $100 haircut but that you are trying to look like someone who spends $10 at Supercuts, you will get asked even more questions. If you live on a street with huge houses, the Trustee will want to send someone to visit your house if you claim to have just a couch and two TVs.

The Trustee does not want your furniture. The Trustee does not want your junk car from your backyard. But, if you have more assets than you are allowed to keep, the Meeting Of Creditors is a good time to start making arrangments to pay the Trustee some money in exchange for keeping what you've got.

The Trustees job is to gather up non-exempt assets, take them, pay what they can to your creditors on a pro-rata basis. As part of this, the Trustee can make some money. If there are no assets, the Truste is paid a minimal flat fee for each case.

Most people don't have more than Florida law allows them to keep. If you do, don't hide it and it will all work out.

Back when Bankruptcy Court was in the Federal Courthouse between Banyon and Clematis, I got on an elevator with Bob Adler, a Federal Public Defender who I knew from years before at the 15th Judicial Circuit (state) Public Defender's Office where we both used to work. He asked what I was doing there and I told him "Some bankruptcy thing." He told me that he had a lot of bankruptcy cases. Since he was in the criminal defense end of things, this meant that the FBI was arresting bankruptcy debtors and that he was landing up defending them. I told him that I was surprised there were a lot of cases. None of my clients have ever had a problem.

Then, we talked about this case that I had heard something about. Here goes: A man files bankruptcy (the "debtor") and neglects (I use the word "neglect" but I am confident it was more than that...that it was an intentional omission) to list his Rolex watch as an asset. Somehow, the Trustee found out about the watch (someone called and told him? I don't really know how....) and the debtor finds out that the Trustee knows and goes to his office and hands him the Rolex. They agree that there are no hard feelings and that is that. Except that when the Trustee initially found out about the Rolex, he called the U.S. Trustee's Office and the U.S. Trustee's Office notified the FBI. So, even though there were no hard feelings between the debtor and the Trustee, the debtor got arrested and prosecuted for bankruptcy fraud.

And I don't mention this story or make a big deal out of being honest because there is a great risk that nice people filing for bankruptcy are going to land up being investigated by the FBI...they won't be. But, don't come in and ask the lawyer how to hide your jewelry...don't think the lawyer isn't smart enough to know when you are trying to mislead him or her about your assets or your income...don't think that you and the lawyer are going to enter into some kind of conspiracy to cheat your creditors and fool the court. There are plenty of honest people out there who can file an honest bankruptcy petition and have no problems at all going through the process. We can make a living from them.

So, if you are a crook...and you know who you are...go away.
add comment ( 6 views )   |  0 trackbacks   |   ( 3 / 730 )

BANKRUPTCY-SAVE YOUR PAYSTUBS 
Thursday, November 6, 2008, 08:27 PM
Posted by Administrator
The problem with an blog entry about bankruptcy is there is a lot of misinformation on the internet and I don't want to be part of the misinformation. I frequently see people who have visited the internet and research bankruptcy and seen a lot of untrue and misleading things.

Anyone considering filing bankruptcy should see a lawyer because....no kidding...everybody's situation is different and just having general information won't do you much good unless you know who the Trustees are and what they are looking for and unless you have filed at least a few dozen petitions and seen what has happened from beginning to end (from filing to discharge).

Some commonly asked questions and (my) answers (all based on Florida and, particularly, Palm Beach County):

Will the Trustee (a woman or man...maybe a lawyer, maybe not... appointed by the Court by way of the US Trustee's Office which is part of the Department Of Justice) come to my house to see what I've got? Probably not. Still, you need to be careful in listing all of your furniture and other property and you've got to be honest when you are valuing it. The Trustees have been doing this for a while and they can all size people up pretty quickly and, if they are suspicious that you are hiding assets, they will send someone to your house.

Can I keep my house? ......Probably, as long as you are up to date in your mortgage payments. If you aren't up to date there are options ranging from a Chapter 13 payment plan type bankruptcy to holding on to see what the government and mortgage companies are now going to do. Whether or not to deal with a house mortgage issue in a bankruptcy is something you should talk to a lawyer about...the situation with mortgages is changing from moment to moment.

Can I keep my car? ...... It depends on what it is worth. If you owe more than it is worth and are current in payments, you can keep it. If you own a paid for Rolls Royce, you probably can't. There is no rule that says everyone gets to keep one car...even if they need it to get to work. If your car isn't worth much, you can keep it even if it is paid for.

Do I qualify? ..........Have you filed for bankruptcy before? You may be able to file again but, it depends on when your last filing was and how it turned out. How much is your yearly gross income? There are income limits now for filing a Chapter 7 bankruptcy. Have you consistently filed tax returns? Are they honest and accurate? How much do you owe and to what kinds of creditors?

Can I get tax debt discharged? ....Maybe.

Can I get student loans discharged? ....No.

What is the worst thing that is going to happen if I file bankruptcy? ....For many people, the worst thing is a bad credit rating. A lot of people have bad credit already so for them there may not be a big downside to a bankruptcy.

When will I be able to get credit again? ....With what is going on with credit now, who knows? But, if things go back to more or less the way they were (and lenders need to lend to make money, so probably credit availability will normalize soon), then I will be ready to give the answer I gave until a year or so ago. Here it is: "Lenders and mortgage people I have spoken with have told me that two years or so after bankruptcy they will be willing to lend provided you have decent income. You probably will need a 20% downpayment if you want to buy a house and get a reasonable interest rate, so save the money that (before your bankruptcy) you were spending to pay your debt. The bankruptcy is going to be reported by credit companies for ten years but, on the other hand, companies that loan you money after the bankruptcy know that they will be first in line to collect what you owe. Anyone who loans you money now would be last in line. So, after you file bankruptcy, your credit worthiness will likely immediately and drastically improve."

When will I be able to get credit again if I am living on Social Security or have minimal or no income? ....Never.

I will do an entry on the process.........from electronic filing to "Meeting Of Creditors" (creditors rarely come and credit card companies never send anyone)...soon.

AND SAVE YOUR PAYSTUBS!
1 comment ( 6 views )   |  0 trackbacks   |   ( 3 / 779 )

FRIENDS IN THE MAFIA 
Friday, October 31, 2008, 05:15 PM
Posted by Administrator
(Note: This morning, I did this entry. It disappeared. If it disappears this time, I will figure it is related to the subject...and not just coincidence).

In the late sixties and on into the 70's, my father owned a discount clothing store on Long Island. His idea was a factory outlet store before there were big strip shopping centers and malls like the Sawgrass Mall in Sunrise (South Florida's #1 tourist destination) centered around the factory outlet store. He had bought boy's clothes for years, first for a clothing only department store called Orbachs and later for an Eastern seaboard chain of clothing stores (I remember he once even went to one of their stores in Delaware...I had never known anyone before this who had gone to Delaware.).

Friends of his in the clothes manufacturing business were going to consign clothing to him and he would sell the clothing at discounted prices and this is how he would make our family's fortune. But, it didn't work. Around 1975, sadly, he closed up shop....and he died a few days later.

To supplement the revenue from clothing, he had begun to sell candy and cigarettes. He bought the candy and cigarettes from a
wholesaler not too far from our house. After he died, everything he had went automatically to my mother. The business was only in his name so the business debts died with him and all of the creditors went away....except for the cigarette wholesaler.

Every couple of weeks after my father's death, a big man with a deep voice, nicely dressed, would come and knock on my mother's door. She would open the door and the man knocking would say, more or less "I'm from the wholesaler and your husband owes us money." "But", she would say, "he is dead and there is no money." "Okay," the man would say "but whether or not he is dead he still owes us money and I will be back to collect it." And, after a while, he would come back.

I don't think my mother, all 4'11" of her, was particularly scared of this guy but she did find it annoying. So, she hatched a plan to get rid of him.

For years, she taught 4th grade down the block from where we lived...at my elementary school...and her kids really liked her. Once a year was parent/teacher conference day.

She knew that one of the girls in her class lived in an unusually large Tudor type house, newly built, that stood on a street dotted with much smaller houses. The girl's father was a garbage man. My mother put 2 and 2 together.

When, the girl's parents came to school for parent/teacher conference day (and, after assuring the parents that their daughter was doing great in school) my mother turned to the father and told him the story about the cigarette wholesaler. "What should I do?", she asked. He said he would take care of it.

Now, when I tell this story I often get the impression that the person I am telling it to believes that the garbage man with the big house sent his thugs down to the cigarette wholesaler and beat him up. Of course not. The garbage man with the big house got on the phone and called up the cigarette wholesale...they probably knew each other or, if not, they knew someone in common...and, he said, more or less "My daughter really likes her 4th grade teacher and could you do me a favor and not send your guy over to her house about the money?" And, the cigarette wholesaler no doubt said "Sure." Because he would rather have the garbage man's friendship or have the garbage man owe him a favor than make a big stink about a few dollars.

Of course, the man never came back.

My family has had other run ins with the mafia over the years. When I worked selling cars (of course not at the Bayside Volkswagen dealer, it was that other place), the sales manager's brother, Carmine, would come in every Saturday with a giant tureen of lasagna or stuffed shells...lunch for everyone. Carmine brought his friend Joe and, though I knew both of them for quite a while, it was pretty clear that...at least in the conventional sense...they did not work for a living. They were both free all week and stopped by the dealership from time to time...never in any rush at all; they drove very big (American) cars; they never said a word about work; and Frank, the sales manager, never did mention what either one of them did for a living.

Frank, sold Chevrolets for years and years before he moved to Volkwagen (car salesmen and managers, then and now, move from job to job all of the time). He had never sold a foreign car before the stint at Volkswagen and he made it clear that he really didn't like the whole idea. He was a Chevy guy.

Frank had people who had bought Chevys from him for years. But, when he started selling Volkswagens, they started buying Volkswagens. Now, Frank was a very nice buy but, nice as he was, there had to be some other reason the former Chevy buyers bought whatever Frank was selling. And now only did they buy Volkswagens from Frank, they bought fully loaded cars with every option at the highest price Frank could say with a straight face and they didn't bargain. Frank was a good salesman but he wasn't that good.

Did all of these buyers owe Frank's brother Carmine a favor? And Carmine was just looking out for Frank? Yes, I think.
(Though I don't know whether the cigarette wholesaler, the garbage man with a big house, or the man who came and knocked on my mother's door drove Chevys...or Volkswagens. Okay, all of these guys drove Linconln Continentals or Cadillac Sedan Devilles.)




2 comments ( 10 views )   |  0 trackbacks   |   ( 3 / 757 )

TRAFFIC TICKETS 
Wednesday, October 29, 2008, 07:05 PM
Posted by Administrator
I just read a piece on MSN (a crappy search engine that refuses to acknowledge my existence but a good place for news and current events) about traffic tickets. As it says in the piece, here in Florida there are some law firms that only do tickets so they charge very reasonable rates because they are in traffic court with stacks of tickets every day. I don't go to traffic court much but if you need a traffic lawyer, call me or shoot me an email and I'll give you the names of who I like (here in Palm Beach County...I know someone in Hendry...I think Doug Leifert has people in Broward).

When I do go to traffic court...because a family member or close friend who I owe a favor got a ticket...after I get the file from the clerk, I walk over to whatever traffic ticket lawyer is staking out the counsel table and ask them to have a look. The traffic tickets lawyers know the statutes and know what to look for much better than I do.

If there is a mistake with the state statute the officer wrote down (the speeding statute for a state road when it happened on a
county road or a ticket written for turning onto a state road from a highway as opposed to turning from a county road from a state road, for example, and, yes, there are different statutes when you wouldn't think there would be) or some other obvious deficiency with the ticket, the Traffic Magistrate (lawyers who are trained, sworn in and paid a few dollars to judge non-accident, non-criminal tickets) will usually dismiss the ticket. The ticket will also get dismissed if the police officer doesn't show up (unless the court is made aware that the officer has a medical or personal problem and that he or she really wants the case continued). Dismissals for both of the above reasons are very common. Police officers can also dismiss tickets on their own. Here in Florida the police prosecuted the tickets and if the officer doesn't want to prosecute the ticket, it gets dismissed.

When you are stopped, here (in my opinion) is what to do and not to do.

1) Open the driver's window. Turn to your left and grab the top of the car door and wait for the officer to come over. I think that putting your hands in view relaxes the officer and makes it easier for him or her to be nice to you. Cops are afraid of getting shot. There could be a gun in your car and you could be reaching for it. A lot of cops are killed in traffic stops. You don't want to put your hands in the air but, if you make it obvious to the cop walking up to your car that your hands are empty and that you mean him or her no harm, it is bound to help. Don't look for your license until the cop gets to the car, otherwise, what he or she will see is you rooting around looking for something...a gun...or are you just hiding drugs? (I recently ran a stop sign and cut off a Deputy Sheriff at a 2 way stop sign. I stopped when he turned around. I had my hands on the window and when he walked up and I shrugged my shoulders (trying to say with my body language "that was stupid of me"). "Sorry about that Deputy", I said. He laughed, shook his head, walked back to his car and drove away.

2) Call the cop who stops you what he or she is. Call the police "officer"; the Highway Patrol "trooper"; and a deputy sheriff "deputy". They are what they are. A deputy is not an officer (and a trooper certainly isn't) and doesn't appreciate it if you don't know that. Look at their name tag (reading the name tag pretty much assures that the cop who stopped you won't think you are drunk). "Could I just get a warning, Trooper Smith?"

3) Ask for a warning. You are more likely to get it if you ask for it.

4) Be old. Okay, you have no control over this but I have noticed that the older I get, the fewer tickets I get. I still get stopped but when the cops see how old I am they figure I'm just not a threat to anyone, so, why bother writing me a ticket.

5) If you are going to drop names, drop them. I don't do this but, if you are going to, do it RIGHT FROM THE START AND BEFORE the ticket starts getting written. I think the way to go is this:
a) As the cop approaches the car start thinking who you know from his or her department.
b) Say the following (substituting the name(s) you are going to use): "Sgt. Dalingberg would be real happy if you just gave me a warning." Better than this: "My uncle, Capt. Warner, just mentioned you at the BBQ the other day...could you maybe give me a warning, please." Or, "Angela Black, Al Smith, Charlie Davie, and Dick Reeves are all good friends of mine. Could you do me a favor on this one?"
You should, of course, actually know the people whose name you are using. The cop will probably check you out with the people whose names you are dropping. A few years ago, I asked for and got a warning from a local Deputy Sheriff. As he was leaving, I said "do you know if Gary Smith is working today?" I knew Gary was on his unit. I really did want to know if he was working. Even though he didn't know that I knew Gary until after he decided to only give me a warning, he still called Gary to check me out. Gary called me later that day "Yeah" Gary said "I told him you were my lawyer." (Which, I am.)

6) I don't know if it matters that much if you admit that you know why the cop stopped you. Yes, it is an admission that can be used against you in court but if you are doing 90MPH in a 60MPH zone, you are going to look like a shmuck if you claim you have no idea whey you are parked on the side of the highway with red and blue lights flashing in your rear view mirror. How about anwering "Do you know why I stopped you?" with "Sorry about that Deputy." It's not really an admission and the cop won't hate you for being a liar. And, you are sorry. You would have hoped that the cop had better things to do than stop you. I guess you don't have to speak at all but you are almost certain to get a ticket if you give the cop the silent treatment (unless he or she sees your license and you are, for instance, Tom Cruise or Jennifer Aniston).

7) I have seen my wife get out of a ticket for 90MPH in a 70MPH zone. "I'm sorry", she said. (My wife has corrected me, she says that what she told the Trooper was: "I am very sorry."

8) Do hot women get stopped because they are hot? Yes. And while you shouldn't make a date with the cop who stopped you, you should at least be polite and avoid the ticket rather than act nasty (though you do have a right to be nasty, he has abused his power)and land up with a ticket. Life is unfair...don't make it worse.

Have you been to traffic school?
Do you have a bad driving record that is going to be held against you if you hire a ticket lawyer to take care of things for you?

You will pay higher insurance rates if you get points on your license....avoid points if there is any way you can.



4 comments ( 15 views )   |  0 trackbacks   |   ( 3.1 / 1274 )

The Lawyer/Client Priviledge---Hunter Mountain, NY 1983? 
Sunday, October 26, 2008, 04:29 PM
Posted by Administrator
Hunter Mountain is about 100 miles north of New York City...the closest there is. It is an unusual ski area in that there are chair lifts everwhere. Most ski areas...looking up from the bottom...have narrow slopes with a lift here and there. Hunter Mountain is laid bare, top to bottom, except for the occaisional stand of trees. There are chair lifts everywhere you look...from top to bottom...from middle to top...from bottom to middle...sideways from right to left...from left to right...anywhere they could fit one. All of this to maximize the number of skiers from Manhattan able to buy a lift ticket and have a reasonable chance of making a few runs (after standing on a lift line for half an hour) on a below zero, windy Sunday in January.

One of the great things about Hunter though is the ice. Go to Vail, for instance, and all you get is mile after mile of thick snow cover. It is almost blissful to ski in the Rockies...back and forth and back and forth...about as much challenge (unless you head for the bumps) as sitting in a Jacuzzi. But Hunter's got patches of ice all over...lose your concentration for a few seconds and you are down hard on your ass.

But, I digress...the subject is the lawyer/client priviledge and one day, about 20 years ago, I was visiting New York and riding up on a chairlift at Hunter with my friend Bob Jones. Bob had graduated from the Culinary Institute of America (down the valley and to the left), the best cooking school in America, a few years before. He had been working in Manhattan cooking for executives. He had found some people with money who wanted to buy a restaurant with him.

So, we rode up on the chairlift and Bob started talking about the deal and he told me "Steve, they even showed me both sets of book." So, okay, I was admitted to the Bar (but it was the Florida Bar and we were in New York) and everything you tell a lawyer is a secret, so, it was okay to tell me that he was buying a business from tax cheats. Was it?

Prospective clients frequently come to see me about a bankruptcy or a divorce and I need to find out about their assets. "Do you own jewelry?", I frequently ask...(really, I'll ask "What kind of jewelry have you got?"...yes/no answers usually don't reveal much and I can usually tell who has jewelry or valuable assets, generally, by looking at their haircut and their clothing and shoes). "Well", the answer goes "nobody knows about it." Okay, but now I know about it.

Here is the priviledge.......
1) Everything you tell me is a secret. If you committed murder last week, that is a secret. I will take it with me to my grave. I will not tell my wife. I will not tell your wife. I will not tell my mother. I will not tell the cops.

2) But, if you tell me (for example) that you have jewelry and you are about to sign a sworn statement in which you say you don't have jewelry (or you don't list the jewelry that you told me you have) there is no priviledge. By lying under oath...and not disclosing the jewelry...you are committing perjury. And I know you are committing perjury so, if I let you sign the sworn statement...or testify in court that you don't own jewelry...or make any sworn statement at all that I know isn't true then there is no priviledge at all. I've got to try to get you to tell the truth..I can't represent you if I know you are lying...and I may have to tell the court that you are lying if you do it in front of me. (Note that the rule for criminal cases is a little different.) BUT, FOR CIVIL AND CRIMINAL CASES THERE IS NO PRIVILEDGE FOR FUTURE CRIMES. You tell me you are going to go kill someone tomorrow and I am calling the cops.

Here is an example... I had an injury client a few years ago who owned a Greek restaurant. He had a helper working for him who was an illegal alien. The Defendant's lawyer took his deposition. One of his claims was that he couldn't work at the restaurant like he used to because of his injuries.

At the deposition, the Defendant's lawyer asked: "Do you have anyone helping you at the restaurant." "No", he said.

I told the other lawyer I needed to take my client outside the deposition room and talk to him. Now, this is a very tacky thing to do in my opinion. I have seen lawyers advise their clients at the beginning of their deposition that if they have questions about how to answer a question that I ask they should just tell their lawyer and we will all just stop the deposition and so they can go outside and talk about it. Why? So the lawyer can make up the answer?

I wouldn't do this with my clients. We'll take a break if you need to use the bathroom but you need to answer the questions you are asked truthfully and I'll be paying attention ready to object if the other lawyer asked something that is out of line. On the extremely rare occaision I have had a witness who I am deposing wanting to go outside and talk to their lawyer before answering my question (I really can't stop them from leaving) first, I ask the witness on the record ("on the record" means a court reporter...sometimes just a tape recorder... is taking down what is said) "So, just to make it perfectly clear on the record, you are unable to answer my last question without going outside and talking to your lawyer about it, right?" I think this gets the point across.

Anyway, the other lawyer had no idea why I wanted to take my client outside and figured it was so that I could coach him. And it was to coach him.... to coach him to tell the truth because the ethical rules say that I can't sit there and let a client lie. So, I took him into the hall and told him that he had to tell the other lawyer about his illegal alien employee. I told him to answer the question and not add anything to his answer unless he was asked. Yes, he had an employee...this is what the employee did. I told him nobody cared if the employee was illegal, nobody would call the INS.

We went back inside. The deposition continued. "Do you have anyone helping you at the restaurant?" "No", my client said. Off we went back into the hallway. The other lawyer was getting angry. "I have to do this", I said.

Now, remember, I told my client to answer the question and leave it at that unless he was asked a follow up question. "Do you have anyone helping you?" "Yes", he said. "What does he do for you?" A few (unrelated) questions later it happened. "My employee, he is illegal...please, please, please do not get him deported." My client started to cry.

After the deposition was over, I asked the other lawyer "Were you going to ask if the guy was here legally?" "No", she said "I really don't care."

Okay, here is the rule for criminal cases: If your client tells you that he or she is going to lie on the witness stand you can't help him lie by asking questions directed to helping your client get the story out ("So, what happened next?" "Did you go to the car or did you stay?" "Where was Johnny while this was going on?"...you can't ask questions like this...your client is own his own). All you are allowed to do is sit your client on the witness stand and say, more or less "So, tell the jury what happened." I have never seen this happen at any criminal trial. I have never heard of a lawyer just sitting his or her client on the stand and having them tell their story. So, I am convinced that either criminals never lie or, at least, they are smart enough not to tell their lawyers they are going to lie.

If you have things to hide, you need to consider whether a lawyer is going to risk his or her license to help you lie. (I have had prospective clients ask me to help them lie...give them advise on hiding assets, for instance... for a $1,000 fee...are these people crazy ? Or, are they just contemptous of lawyers?)

Sometimes it is a good idea to keep your mouth shut.

Lawyers (at least the ones I know) are generally honest.



3 comments ( 36 views )   |  0 trackbacks   |   ( 2.9 / 1222 )


<Back | 1 |