Thursday, December 30, 2010, 04:48 PM
Posted by Administrator
Editor's Note: Bob Smith is a retired South Florida lawyer who now lives in Northern Wyoming, next to the Canadian Border. Bob will be spending New Year's Eve in Medicine Hat at the Tim Horton's donuts. Bob says "Would you believe that the Canadian New Years happens at the same time as the real one?"

Bob writes:

As an old man, I offer these ideas for New Year's resolutions. Try them. You'll be happy you did!

1) Don't agonize over your troubles. It's bad for your health. Some study I read somewhere found that people from the mountains of Georgia (the Georgia in Europe that was formerly part of the USSR, not the one with Atlanta in it) lived the longest because they didn't spend much time grieving about bad things in the past...they moved on. The past is, really, unfixable.

2) Remember that while it is bad to drink too much, a little is probably good. If you don't drink at all...GOOD NEWS! is never too late to start (though if you are under 18, it might be too early.) A few years ago, I made a New Year's resolution to start drinking hard liquor again. I am proud to say that I have been able to stick with it.

3) Spend some money. We are capitalists here and capitalism doesn't work if we all keep our money in our pockets. Can't think of anything to buy? Let me know. I'll send you a list along with my address.

4) Quit trusting politicians. They are all bad (except for people like Michael Bloomberg in New York who is a billionaire so at least you know he's not doing it to get rich off of corruption.) You trust Sarah Palin. Admit it. You do. You can't concieve of a middle-aged woman as good looking as her being as bad as all those other know-nothing-Bible-thumping-freedom-limiting-tax & spend-idiots. I am sorry to tell you that you are wrong. She is as bad. Probably worse. Still, next snowmobile race I go to, I'm rooting for her husband, Todd. Hey, I can kinda see Sarah's back yard from my porch so it's almost like we're neighbors.

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Tuesday, December 21, 2010, 10:04 PM
Posted by Administrator
Yesterday, my daughter Aryanna's Shetland Sheepdog, Sparky, ran away when I opened the gate to get my truck into the back yard. After I hitched up my boat trailer to the truck, I found Sparky on the next block and, figuring that he needed an activity, instead of dropping him off at the house, I took him with me on the boat.

Sparky and I passed by a mantee near the boat drop off then we motored over to the Palm Beach Inlet. Sparky was not so happy with the boat bouncing through the Inlet so we came back in and headed North. We were about 300 feet off of Peanut Island and directly across from the Riviera Beach Tiki Hut when a Southbound Coast Guard boat turned on its blue strobe lights. The Coast Guard boat was an orange rigid-hull-inflatable with an aluminum cabin large enough for six or eight Coast Guardspeople. It had three 300hp Suzuki outboards hanging off the transom and a .50 caliber machine gun a few feet aft of the bow.

I turned towards the Coast Guard boat and shut down my engine. I called out to a blue uniformed young man with a semi-automatic pistol strapped to his thigh "You're going to do all the work, right?" Because I figured that with their three engines it would be easier for them to manuever alongside me than it would be for me with my single engine to manuever alongside him. The man replied "No." But, my engine was off, so, the reality was it was going to be up to them.

I threw him my bow line and he tied me off to a cleat on the starboard side of his boat, near the bow. There was a very attractive blue uniformed blonde woman with a clipboard on her lap sitting behind the man. Behind them, on the port side of their boat, was a very attractive brunette who didn't say anything and, so, was either: a) being standoffish, or, b) guarding that side of their boat from possible attack from Peanut Island.

They asked me for my registration and ID. I was told that it wasn't a safety check but that we were stopped as part of their anti-terrorism patrol around the Port of Palm Beach. The man said that it was a random which he meant that he didn't want me to think that Sparky and I fit into some kind of boater-terrorist profile.

Now, I am not a great constitutional scholar but I sort of remember the reasons the cops are allowed to stop you (since there is that whole thing about our being "free from unreasonable seraches and seizures" in the Bill of Rights)....and, for purposes of this discussion, "cops" includes the Coast Guard.

1) If the cops have a reasonable suspicion that you are engaged in criminal activity...or that you have violated a staute or ordinance. An example of this would be allowing your boat to produce a wake in a no-wake zone. Sparky and I were wake-free.
2) In a border area for the purpose of policing the border and keeping out contraband and illegals. A border area stop doesn't require reasonable suspicion and we could have been stopped for no reason at all. And the Intracoastal Waterway connects with the ocean with connects with the rest of the word, so, we certainly were in a border area. But, I asked the Coast Guard man whether their stopping us was related to our being in a border area. He said "no".

I really don't think that the Coast Guard is allowed to stop boaters to make random checks having nothing to do with boating safety and nothing to do with policing the border. The Riviera Beach Police couldn't have made a legal RANDOM stop of my truck while I was driving on the flyover above the Port just because they thought that would be a good way to stop terrorism (though if my truck has a broken taillight lens...or if the cop stopping me says it is broken...then the stop is ok).

But, it doesn't matter if the stop is legal or not unless you get arrested as a result (and neither Sparky nor I was arrested) or unless you do something about it. So, I could call the American Civil Liberties Union and ask them to sue the Coast Guard and to get a Court order requiring that they stop their shennanigans. But, on the other hand, if my boat sinks I'm going to call the Coast Guard and Coast Guard boats are kind of cool looking. And they were nice to Sparky and me. Also, did I mention that the Coast Guard women were kinda hot?

The man handed my ID to the blonde woman and she wrote my information down on her clipboard. She asked me for my phone number and I thought "That's a violation of my privacy." Then, I thought, "My business number is on my website...I try to get people to take down the number." So, I gave her 624-6306.

At about the time I was giving the blonde my phone number, I heard a woman's voice come over a radio speaker in the cabin of their boat. "There are two boats in the inlet and they're about to get into a fight.", she said. Everyone waited for me to get my engine started before the Coast Guardsman at the helm turned on their siren and theytook off towards the Inlet.

I know I should be more upset about the illegal stop than I am and I apologize for my lack of upset-ness. After all, if we lawyers don't cause a ruckus when the government trample our rights, who is going to? But, to be honest, I like the Coast Guard. And if the brunette had been the one asking for my phone number, I would have give her my cell.

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Friday, December 17, 2010, 09:47 AM
Posted by Administrator
Editor's Note: Jesus Rabinowitz is a (temporarily) un(der)employed Florida lawyer who is busy finishing up his second book...working title: THE DAY BEGAN QUITE WELL.

Yesterday evening, there were only re-runs on prime time TV, so, I decided to conduct an investigation into what happened if I asked for a referral from a lawyer referral service. I fired up the lap top, put "bankruptcy attorney palm beach gardens" into google and, .000023 seconds later, I had pages and pages of informaiton. Like all good consumers, all I cared about was the first page.

The first results page was chock full of paid-for returns. I could not tell who was being paid: google adwords, att, some other vendor? Most of the returns were for actual, flesh and blood lawyers. But, after scouting around, I found a return from "". I clicked.

I was directed over to what appeared to me to be the website. I was asked to answer a few questions by checking boxes. How much did I owe? There were four or five choices. What was my big problem? The choices included garnishments and lawsuits and lots of other bad stuff.

On the next page, I was asked my zip code and contact information. After I filled it all out, I was assured by the website that they would assign me the most appropriate bankruptcy lawyer they had in their databank.

Today, I received an email from, it read "Your request has been approved." I really don't think they disapprove anybody's request for a referal to a lawyer who particpates in their marketing campaign but, still, I guess this was GOOD NEWS! And, I believe it was beautifully worded. People filing for bankruptcy were probably happy to the past...that their credit application was "approved" and that they would be getting a new credit card so, why not make them happy by telling them that their request for a bankruptcy lawyer had been "approved".

The email told me that I was going to be referred to a lawyer named Ed Port because...based upon analysis, Ed would best fit my needs. Really, based on what knew about me...based on the few questions I answered...any lawyer who had filed bankruptcies for a while would be fine and I should probably make my decision based on price.

But.....and I want to be clear about this...while I don't know Ed Port, I do know who he is. And I have never neard a bad word about him. And nothing I have written above is intended to disparage Ed in any way.

In fact, if I was going to file for bankruptcy and and I didn't know Duhl, I might hire Ed Port. AFter all, I have been approved.

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Friday, December 17, 2010, 09:37 AM
Posted by Administrator
I am going to open a second office at Donia Robert's office on Dr. Martin Luther King Drive in Belle Glade. This is a few blocks East of Tom Montgomery's office and a couple blocks South of Mamie Washington's office. Also, it is across the stret from the Elk's Club and kind of diagonally across from the U-Save. I will be there twice a week beginning the second week of January.

This will give me two (2) offices. The main office in Palm Beach Gardens (near the corner of Military and Northlake) and the Belle Glade office. CONTRARY TO WHAT ATT AND YP.COM would have you believe:
1) I do not have an office in West Palm Beach...and 9091 N. Military Trail is not in West Palm Beach. It is my office address in Palm Beach Gardens.
2) I do not have an office in Wellington.

Also, my phone number is 561-624-6306. It is not the number that ATT of published in certain internet advertising.

Hopefully, the address problem with be corrected today. And, hopefully, I will disappear, today, from all paid-for internet advertising.

But, I can always be found........for (and, also, in Gardens and Belle Glade).
2 comments ( 10 views )   |  0 trackbacks   |   ( 3 / 251 ) Bob Smith 
Thursday, December 16, 2010, 04:00 PM
Posted by Administrator
It appears that Att and and Duhl have reached a peace.

add comment ( 4 views )   |  0 trackbacks   |   ( 2.9 / 667 ) Steve Duhl 
Wednesday, December 15, 2010, 09:56 AM
Posted by Administrator
I was quite surprised, yesterday. Here is what happened:

At a Domestic Violence---throw my client out of the house---hearing, the other lawyer asked her client:

"Who did your husband call at your place of employment?"

Since this question was likely going to be answered based on what her fellow workers told her, the question asked for hearsay. That it, the question was designed to find out what she supposedly heard other people say...and the people were not in court to testify and be subject to cross examation by me. So, I objected:

"Objection, calls for hearsay.", I said.

And the Judge said "You think that 'hearsay' is an objection?"

And I said "It is up to you whether it is."

And, so, I guess I found out that in Domestic Violence hearings, hearsay is okay as long as it doesn't provide a substantial part of the foundation for the court's determination.

Does this change anything at all? Does it matter that I didn't know that the dumb-ass legislature had changed a rule that has served us well in keeping evidence reliable and believable...a rule that has been around since the English were in the dark ages (most of our law comes from England?

No, for two reasons:

1) It is muscle memory to object. When you are about to hear hearsay, you object. You don't think about possible exeptions. That is the Judge's job..or the job of the lawyer on the other side who is grying to get the hearsay in. Calls for hearsay? You jump.
2) Objecting to hearsay...even if your objection is overruled, reminds the Judge that he or she is about to hear a bunch of crap. ...what the witness says that someone told them. How easy is it to make that up?
3) When it is your turn to present evidence, you are going to ask for hearsay if you need it to prove your case. So, why trouble yourself too much about the actual rule?

OK, that's three reasons.

When it was my turn to put on evidence, I asked my client what his friend's friend said she saw the wife do a few weeks before.

The other lawyer said "Objection, hearsay."

And the Judge said..... You already know what the Judge said.
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LAWYER Jesus Rabinowitz 
Thursday, December 9, 2010, 09:20 AM
Posted by Administrator
Editor's Note: Jesus Rabinowitz is a (at the moment) unemployed lawyer who lives in Jacksonville. Jesus is half-way through completing his second book and, he asks: Does anyone have a publisher for a best friend?

Editor's Note by Bob Smith posted on December 16 @ 4:02PM: It appears that Duhl and ATT,, etc. have reached a peace. The following, therefore is intended for philosophical reflection only.

I sometimes joke with people (usually advertising salespeople) that I should have quit being a lawyer ten years ago and taken a job selling lawyers advertising. When I graduated from law school, the Florida Bar was just beginning to recognize that lawyers had free speech rights and lawyer advertising...tacky or not...could not be prohibited.

In the twenty years since, lawyers have gone from small, tasteful ads in the Yellow Pages to providing most of the revenue for the Yellow Pages and from occasional commercials on TV to half of the commercials on TV. Lawyers now appear on 40% of the billboards in the County, on most taxi-cab-top signs that are not touting Mr. T's Lounge or Cheetahs and on the backs of most of the PalmTran Buses. There probably is an irony in seeing lawyers faces stained by diesel bus exhaust...but the irony is lost on me.

Today's advertising frontier is the Internet. (Okay, it was yesterday's advertising frontier but I am just getting up to speed.) A website isn't enough, lawyers and law firms need to pay to have their website come up on the first results page. They need to pay to come up when an internet user types "West Palm Criminal Defense Lawyer" or "DUI lawyer" or "Bankruptcy Attorney Palm Beach Gardens" into Google or Bing.

Because the legalbagel blog always has new content and search engines like new content, Steve Duhl shows up on the first results page when users type in "Steve Duhl" or "steveduhl" or "Steven Duhl" and I show up when users type in "Jesus Rabinowitz". But, it is a struggle to stay on that first page and it is harder for people with common names. There aren't a lot of Steve Duhls or Jesus Rabinowitzs out there.

A month ago, Duhl (thought he) made a deal with ATT for hits on Google and Bing. 170 hits a month, he thought. And the kind of hits you get when people input the kind of lawyer and the location...not hits for "Steve Duhl". So, far, it isn't going well. Too many lawyers made the same deal, I think,....and there are just so many hits to go around.

What will ATT do to fix the problem? Can they do anything?

I, Jesus Rabinowitz, will keep you posted.
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Wednesday, December 8, 2010, 09:23 PM
Posted by Administrator
Blog contributor Jesus Rabinowitz can be contacted at or become Rabinowitz's friend on FACEBOOK.
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Wednesday, December 8, 2010, 02:12 PM
Posted by Administrator
1) Buy Uninsured Motorist insurance when you buy your car insurance. If you don't have it, call your agent and upgrade. If you are injured in an accident and the other driver---the one who caused the accident---doesn't have liability insurance, you won't recover any money unless you have UM (or, you get hit by a rich guy).

2) In Florida, you don't have to have liability insurance. But, if you get into an at fault accident and you don't, you will probably have your driver license suspended. Bankruptcy, if you qualify, will solve this problem.

3) Insurance agents make more commission if they sell you PIP with a deductible. (PIP is what pays $10K---or less--of your medical bills and lost wages if you are injured, regardless of who is at fault in the accident.) But, if you have a deductible on your PIP, you may have trouble getting a doctor to treat you without cash up front.

If you have questions, give us a call. (Or, call those guys whose pictures are on the back of the Palmtran buses.)

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Monday, December 6, 2010, 08:47 PM
Posted by Administrator
In the beginning, 25 years ago, when I had a lot more hair, getting divorced was expensive. This was before the days of

This was before the days of judges mistrusting lawyers and reviewing and changing what the parties agreed to. This was before judges quit trusting lawyers who said "Judge, the child suppport is according to the guidelines." and, so, it was before judges started doing the child support math themselves. This was before twenty page PARENTING PLANS. It was before MANDATORY DISCLSOURE. It was before the day that committees of over-eager lawyers came up with new complicated rules for the rest of us to follow and new and complicated forms that ran up the cost of what was already expensive enough.

It was before the legislature decided that we all should split time up with the kids 50/50. It was back when we knew that a lot of parents who said that they wanted the kids half the time were really just trying to get out from having to pay child support.

I had a mediator, talking to my client and the other side a few days ago say: "...and if you don't work everything out, the judge will probably send you back to mediation." Which implied, I guess, that the time that I am talking about was back when judges were still trying cases.

All of this was back in the day when there were fewer lawyers which meant, on the one hand, that there was less competition. And the increased competition that exists now should make prices lower. But it was also back in the day when lawyers had too many cases and they didn't have to run up their bill on just a few cases to make the payment on their yacht.

I am not complaining that getting divorced is more complicated and costly than it was 25 years ago. But I would figure that there are a lot of other people complaining about that I don't have to.

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Sunday, December 5, 2010, 12:58 PM
Posted by Administrator
Editor's Note: The blog's writers are suffering from collective bain freeze (except for Rabinowitz who is hard at work on his second book..). Will there be a new entry tomorrow? Maybe.

In the meantime,there are 15 pages of entries behind this one.
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Wednesday, December 1, 2010, 05:25 PM
Posted by Administrator
Adcorp did replace my signage at the el Bodegon,as they had promised to do. Was it because Adcorp was afraid of the power of the blog.......or just because they wanted to do the right thing. You be the judge.
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THE COST OF A Jesus Rabinowitz 
Monday, November 29, 2010, 07:45 PM
Posted by Administrator
I do no represent people who have recieved traffic tickets (unless they are for criminal offenses, for example: reckless driving & DUI). There are lawyers who do civil traffic violations full time. When I land up having to go to court for a ticket received by a relative, I walk into the courtroom and make a beeline for one of the traffic ticket lawyers. They are usually sitting at a table in the front, left of the courtroom in front of a tall stack of thin files.

"I'm stuck doing this for my ________.", I say. Every lawyer I have approached in traffic court for free advice about my _________'s tickets has been very helpful....they look at the ticket, think, then tell me what to do. _________ has a clean driving record. (Actually, it has been a long time since __________ has been ticketed so, even without me ___________ would have clean record.)


I just got off the phone with a major insurance company. I will not say which one but I will give this hint: it is is not company that does not have a gecko as a spokesanimal. I saved over $100 a month on my insurance premium by switching to this company but I would have saved $127 more (over six months) except: SOME PERSON IN MY FAMILY (not _____________) GOT A TICKET FOR NOT HAVING THEIR SEATBELT ON AND, INSTEAD OF FIGHTING IT...or appearing in court and begging the traffic magistrate not to give them the conviction or going to traffic school..THEY PAID IT, TOOK THE POINTS, GOT THE CONVICTION...


The surcharge stays on until THAT PERSON has a clean driving record for five years. Let's do the math: $127 every six months is $254 per year. Over five years, that $254 a year adds up to $1,270.00.

Those traffic ticket lawyers charge around $100.

EDITOR'S NOTE: Jesus Rabinowitz is a former South Florida lawyer who is "presently unemployed" and living in North Florida where he is muddling his way through his second book: (working title) THE DAY STARTED OFF QUITE WELL.

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Thursday, November 25, 2010, 12:42 PM
Posted by Administrator
This entry will not be about having to visit my Uncle's in Fairlawn, New Jersey, in the 60's and being attacked by women relatives wearing bright red lipstick. And I apologize for that.

This entry will be a boring recitation of the problem filing for bankruptcy so near to the tax-refund-time-of-year. Again, sorry...but if you are bored, there are three football games on TV, today and Taylor Swift has a one hour special beginning at 8:00. Also, the whole friends and family thing.

So, here goes the actual reason for this entry:
1) If you are thinking of filing bankruptcy and you anticipate getting a tax refund, it is a good time to get some advice about the effect of that tax refund has on when to file bankruptcy.
2) If you file bankruptcy near to the end of the year (like now) or if you file before you get your tax refund, the court appointed Trustee may demand that you hand the IRS's check over to him or her (the Trustee would get a fee and your creditors would get a few cents on the dollar as a dividend from your "estate").
3) Some refunds are exempt (the Trustee can't touch them)...the "Earned Income Tax Credit" is usually exempt.
4) You could file early, get your refund and spend the money on things like PAYING YOUR BANKRUPTCY LAWYER; getting your teeth fixed; fixing your roof. can't hide the refund money....
5) BUT, you may have enough in "exemptions" so that you can keep the tax refund money without having to do some (perfectly legal) things to shelter it...
6) AND, you may be able to get a refund...even a big refund...and (legally and within the rules) keep it.

NOTE: You will probably not be able to figure this out based on what you read on the Internet. It amazes me the stuff about bankruptcy that clients have told me they have read on the Interet. I am absolutely positive that you can diagnose any disease; learn how to fix any problem with your car; and get accurate information on any person on earth on the Internet BUT FOR SOME REASON, THE LEGAL STUFF IS A BUNCH OF CRAP.

So, I'm sorry,but you'll have to see a lawyer. Even a paralegal won't do. It won't be that bad...but I'd be lying if I said it would be fun.

So, one thing Thanksgiving means to me?? Bankruptcy planning.

I will now rejoin Patriots vs. Lions in the middle of the 1st Quarter and I willl leave you for now with these important holidays word, especially important THIS ("rebuilding")year: GO GATORS!

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Monday, November 22, 2010, 10:24 PM
Posted by Administrator
Here in the State of Florida, there are two ways to become a judge. I, and all of my friends, have avoided them both.

1) Get appointed. To be appointed a judge (County or Circuit trial level...appellate judge's are different---by which I do not mean that they are strange or abnormal) is what you need to do: (Note that there first has to be an opening because a judge quit before election time, got kicked off the bench, or a new judge-position was created.)
A) Complete and file an enormous application detailing your education, employment and experience. I think you've even got to list all of the cases you've tried...but I could be wrong.
B) Go to an interview before a committee of people who are appointed by the govenor (THE JUDICIAL NOMINATING COMMISSION). These people will grill you with questions about why you want to be a judge; why you would be a good judge; what about the time you stole that donut?....then...
C) The committee will ignore the applications, figure out who has connections and then send a few names of those with friends and connections to the govenor.
D) The govenor will appoint one of the people whose name was sent up based upon who they know, what-race-of-judge-we-need-next, and who they know.
E) The person the govenor appoints will be sworn in as judge.
By pure coincidence, the new judge may not be an idiot.

2. Get elected. The election is non-partisan so it doesn't matter if you are a Republican or a Democrat. is what you need to do:
A) Register your candidacy with the Supervisor of Elections; appoint a treasurer; open a bank account.
B) Put every penny you can get your hands on into the accoutnt. You will have to disclose the account balance and the idea is to have so much money that you look like a sure thing and all of your prospective opponents are scared away.
C) Pay something like 5% of one year's salary to get your name on the ballot.
D) Huck an endorsement from every lawyer, business, professional you can find. Send out a letter touting your candidacy and listing all of your endorsers.
E) Buy hundreds of plastic signs and wire stick-in-the-ground sign holders and have your friends drive around the county sticking them in the ground everywhere that they are not scared off by someone toting a shotgun.
F) Interview with the Palm Beach Post and get their endorsement.
G) Kiss babies, debte the candidates you failed to scare off (but, in keeping with the idea of judicial decorum, you can't actually say anything meaninful).
H) Spend everything you have left in your account at last-minute-television-commercials.
Amazingly, an awful lot of judges that get themselves elected are not idiots.

Be aware, though, as you navigate the legal system with the lawyer you hired based on little more than blind faith.......a lot of judges ARE stupid. So, as your case moves along the system, remember: prayer is good...God is probably not following your case too closely but, who know?; compulsive behavior is strange.. but maybe you don't want to step on those cracks in the sidewalk until you are done; many countries don't have extradition treaties with the US; you really love your wife/husband...don't you? did the two of you land up here, anyway?

Editor's Note: Bob Smith is a retired South Florida lawyer who will be in town for the next few days and then will be flying back to Jackson, Wyoming, picking up his new Silverado at the airport and driving the 4 hours back to his cabin on the Canadian border. Bob says "I can now say "It's time to shear the sheep, again." in five languages." "Canadian is a separate language, eh...right?"
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POSSIBLY Steve Duhl 
Tuesday, November 16, 2010, 10:58 AM
Posted by Administrator
As I sat this morning wondering whether my client...who had three cases: a drug sale, a burglary and a "lewd" battery ..would take the plea deal (with the deal he would be out by summer without it he'd be out in somewhere between 3 months and 15 years), I began wondering...

When I said "You will probably win the (battery) case but if you don't it will ruin your life." By "ruin your life" I was talking about being labled a sex offender, having to register as a sex offender and risking more prison time for a 3rd degree felony if he didn't register.

I was saying that he would "probably" win but I began to think he was hearing that he would "certainly" win. But "probably" doesn't mean "certainly".

In a civil case, the trier of fact (judge or jury) is supposed to find in favor of whichever side of the case has the majority of the believable evidence pointing in their favor. A "prepondence of the evidence" means more evidence than the other side. "Prepondenance" is the civil standard (just as "reasonable doubt" is the criminal standard for determining guilty or not). "Preponderence" means pretty much the same thing as "probably". So, in a civil case, if the Plaintiff probably should win...he will win. This stinks for a Defendant whose evidence falls just a fraction short of 50%. Say that if you quantified the evidence it was 49.9% vs. 50.1%....well, someone has to win.

Need to get expert testimony in as evidence to win your trial? The standard is "a reasonable degree of medical (or enginerering, or aeronautic or whatever) certainly".

"Doctor can you say with a reasonable degree of medical certainty that the accident caused Mr. Smith's injury?" "Yes, it's possible." "By "possible", do yo mean "probable"? Because if the doctor knows that "possible" means less than 50/50, his testimony isn't coming in. Anything is possible and "possible" isn't evidence. Probable..even a little more likely than not, comes in.
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Wednesday, November 10, 2010, 09:30 AM
Posted by Administrator
I was speaking with the manager of my local bank, yesterday. She told me that many of her customers were getting involved with "debt consolidation" companies. I was surprised. Here is why:

1) "Debt consolidation" companies are unregulated. If they take your money or don't solve all of your debt problems ...what are you going to do? Report them to the Better Business Bureau? That probably won't help.

2) If your credit isn't already wrecked by the time you engage one of these companies, it will be within a few weeks after.

3) If your "Debt Consolidation" company does make a deal with some of your creditors....what do you do when the one (or two or three) they weren't able to make a deal with sues you?

4) Do you really have the money they want for monthly payments? Wouldn't the "monthly payment" money be better spent on your kids? a vacation?

Bankruptcy.....if you great stuff. "Debt Consolidation" companies are...for the most part...just trying to get rich off of your suffering. "Not For Profit" just means that the people who run the company take the profit as doesn't mean someone isn't making a whole bunch of money. of you.

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BANCARROTA-Quizas Sea Una Buena Solucíon Para Usted.......Por Steve Duhl 
Wednesday, November 3, 2010, 09:34 AM
Posted by Administrator
Por suerte, la ley en los Estados Unidos le permite a personas que tienen problemas pagando sus deudas aplicar para bancarrota. Muchas personas famosas han aplicado para bancarrota, al igual que muchas corporaciones grandes (General Motors, las Líneas Aéreas Delta).

La idea es que después de aplicar, usted tenga un nuevo comienzo donde pueda utilizar su dinero para comprar cosas que usted necesita y desea y no tenga que pagar duedeas viejas. La economía norteamericana esta basada en la idea de que darles a las personas un "comienzo fresco" es algo bueno y que beneficiará el país en general. En muchoas otros países, la bancarrota no está disponible y las personas son forzadas a vivir con grandes duedas que no pueden pagar. Esto puede ser perjudicial para la economía de esos países. Japón, quien recientemente salió de una recesión de 10 largos años y nuevamente entró en otra recesión, es un ejemplo de esto.


El algunos países, (países del medio-oriente como Arabia Saudita y Kuwait son ejemplos), las personas que no pagan sus deudas pueden ir a la cárcel. Aquí, en los Estados Unidos, usted no puede ir a la cárcel simplemente porque debe dinero (excepto en los casos de manutención de los hijos). También, aplicar por la bancarrota no afectará su residencia ni su oportunidad de llegar a ser un ciudando.

La gran mayoría de personas que aplican para la bancarrota mantienen todo lo que tienen incluyendo sus carros, los muebles, cuentas de jublicación...incluso algún dinero en el banco. La bancarrota lo puede ayundar a mantener su casa si usted se ha atrasado en sus pagos y la bancarrota le puede ayundar a hacer las cosas más fáciles si usted no esta interesado en mantener su casa.

........para continuar...........
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Monday, October 25, 2010, 10:40 PM
Posted by Administrator
Editor's Note (by Bob Smith): New blog contributor, Jesus Rabinowitz, is a former North Florida Assistant Public Defender. He currently lives outside of St. Augustine, he is unemployed, and, he is working on his second book which is tentatively titled THE DAY BEGAN WELL ENOUGH.

There is one thing that I expect all doctors to be able to do: deal with heart attacks. I am confident that I will never find myself thrashing on the floor of, for instance, an airliner over the Atlantic only to hear a doctor say "I can't help him, I'm a dermatologist."

By the same token, I believe that all lawyers: real estate lawyers, securities lawyers, immigration lawyers...should know the answer to the question: The cops are at my door, should I talk to them? You may have devoted the last 30 years to preparing shopping center leases. But, it is a weekend, your niece is on the phone. You are the only lawyer she knows.
ANSWER THE QUESTION...SHOULD SHE TALK TO THE COPS OR KEEP HER MOUTH SHUT? You have an obligation to the entire profession(and to your niece) to know the answer.

If you, as a lawyer, can't help your niece then you've got no complaint when you find yourself laying on the street in front of a doctor's office dying of a heart attack and the doctor comes outside and says "Sorry, man, I've got my MD but all I do now is talk therapy for drug addicts."

If you know the answer to today's question, stop here, move on with your life, you don't need me right now. If you don' is how to figure it out.

Ask your niece:
Do you know why they are there honey? Have you witnessed any crimes? Have you committed any crimes recently? "Yes?"...Sweetheart, what exactly was your involvement?

If you are just a witness and you don't talk to the cops, they will think you were involved. TALK TO THE COPS.

If your involvement in the crime was minimal ("I just gave them a ride over to the park, I didn't know they had guns.") you've got a decision to make:
A) If they've already arrested other people, the cops already know you were there. If you don't talk to the cops first, the shooters will probably talk and say that YOU had a gun. Usually, when you are involved in a crime with a bunch of other people, WHOEVER TALKS TO THE COPS FIRST WINS.
B)Remember, the opposite of the adage "the guilty flee" is "the not-guilty stick around to talk to the cops." The cops are more likely to believe you didn't know the other guys had a gun if you talk to them from the get-go.
C)Of course, by talking to them, you are going to put yourself at the scene of the crime.
D)Quite the conundrum.

If you committed a crime and you are sure the cops can prove it regarding of whether or not you talk to should consider:
They will like you if you cooperate...they can prove up what you did anyway so you aren't hurting yourself...and maybe you can minimize what you did. I represented a girl one time who vandalized an abandoned house. When she was arrested, the cop thought she was responsible for all of the vandalism at the house. After she hired me, we got the cop to take a statement from her and convinced the cop that she had written on the wall but the broken windows, stolen sink and holes in the ceiling had nothing to do with her.

And, what if it is a big crime and your role was minimal: Let's say that a murderer drove your car over to do the murder. The cops are knocking at your door. You know someone is dead. Was your car stolen by the murderer? Did you lend it to the murderer knowing what they were going to do? Did you lend it not knowing?

If you don't talk to the cops, they will assume that you were part of a murder conspiracy. The fact that your car is associated with a murder already has you in a jam. It's damage control time. TALK...if you didn't know anything... but be careful what you say.

Remember, the cops are legally allowed to lie to you about what they know: for exmample "THE OTHER PEOPLE WE ARRESTED SAID IT WAS ALL YOUR IDEA." They are allowed to tell you they have evidence against you that they don't have "YOUR FINGERPRINTS ARE ALL OVER THE GUN" (note: fingerprints are NEVER "all over" a gun). And, they can keep you for hours and hours and mentally beat you up until you confess to something you didn't do. (Yes, people confess all the times to things they didn't do.) "JUST TELL US HOW YOU KILLED HER AND WE'LL LET YOU GO HOME."

It's always good to have a lawyer with you when you talk to the cops. He/she may just sit there but:
i) They are a witness to the goings-on; they can remind you that you can leave when you want; and they can hint that it is time to leave "OFFICER, UNLESS MY CLIENT IS UNDER ARREST RIGHT NOW, WE'RE LEAVING."
ii) The cops will double team's best you double team them.

So, when the cops are knocking on your door, what do you do? You call your uncle the real estate lawyer. (He'll have read this entry so he'll be good to go.)

Of course:
a) If the crime was yours alone; if you think the cops are just there to fish for evidence; if your co-criminals have already talked; if the crime was worse than what the cops already know...KEEP YOUR MOUTH SHUT.
b) If you think you are going to help yourself by talking to the cops because you are smarter than they are, you are wrong. They are smarter than you are. Prisons are full of smart people. Dumb people who keep their mouths shuts are home watching TV.

Either way, crime is bad (except for a few victimless crimes). Think about the long term consequences of what you do before you do it. Go play a video game...there won't be any victims or won't have to do time when the game is over. Prison sucks.
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Friday, October 22, 2010, 08:28 AM
Posted by Administrator
I have an ad on the third page of El Hispano, a local newspaper. In exchange for my loyalty, El Hispano is going to let me publish what will appear to be a news-type piece...but, really, it just be a big advertisement. Dayana Rooks, who sells me the space and whose husband, Ron, flys Airbuses and with whom I used to take Taw Kwon Do, is translating it. Once she does, I will publish it here, in Spanish. Here it is in english:

BANKRUPTCY---It May Be A Good Solution For Steve Duhl

Luckily, the law in the United States allows people who are having trouble paying their debts to file for bankruptcy. Many famous people have filed for bankruptcy and many big corporations have also (General Motors, Delta Airlines).

The idea is that after filing you will have a fresh start and you will be able to use your money to buy things you need and want and not to have to pay old debts. The American economy is based on the idea that giving people a fresh start is a good thing and that it will benefit the country as a whole. In many other countries, bankruptcy is not available and people are forced to live burdened by large debts they cannot afford to pay. This can be very bad for those country's economies. Japan, which recently came outof a 10 year long recession and then dipped back into another recession is an example of this.

In some countries, (Middle Eastern countries like Saudi Arabia and Kuwait are examples), people who don't pay their debts can go to jail. Here in the United States, you can't go to jail just because you owe money (except for chid support or alimony). Also, filing bankruptcy won't afect your residency here or your opportunity to become a citizen.

The vast majority of peple who file for bankruptcy keep everything they have including their cars, furniture, retirement accounts...even some money in the bank. Bankruptcy may help you keep your house if you have fallen behind in your payments and bankruptcy may help make things easier for you if you aren't interested in keeping your house.

There are several kinds of bankruptcies. Whether you can file for bankruptcy and which bankruptcy "Chapter" would benefit you most depends on your individual circumstances. If you are considering bankruptcy...or, if you just want to know would be worthwhile to spend half an hour consulting with a lawyer who has experience in the field. There is a lot of wrong information about bankruptcy on the internet and only a small percentage of lawyers have spent a substantial portion of their careers practicing in this particular area.

Bankruptcy may help you have more money available to spnd on your children and yourself. Filing bankruptcy will hurt your credit rating, but not being able to easily borrow money for a few years is usually a small price to pay for the luxury of being able to sleep at night knowing that collection agents won't be calling and that the money you had been sending off to pay credit cards can now go to pay for dinner and movie.

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Saturday, October 9, 2010, 07:42 AM
Posted by Administrator
I just read that Bank of America and PNC Bank are taking a moratorium from filing new foreclosure cases and instructing their lawyers to sit on their hands in pending cases. My understanding is that these banks are doing this because more and more evidence is coming to light that:
-Paperwork transferring ownership of the mortgages was signed off on...not by employees of the mortgage owners but by employees of companies who were in the prepare-papers-and-sign business.
An Assignment of Mortgage signed by "Mary Smith" which recited that "Mary Smith" was a Vice President of the bank was probably prepared by s small company with offices in South Georgia and, really, "Mary Smith" worked for it...and not for the bank.
-Nobody really knows who owns a substantial portion of the mortgages out there. Foreclosure suits freuently name, for example, "XYZ Bank as Trustee for the Certificate Holders of Series 123 mortgage backed securities...". A few months later, the Plaitniff's lawyers will ask the court to allow the Plaintiff's name to be changed to, for example "ACME Bank, as Trustee........". Then, a few months later, the lawyers will be back trying to "correct" the Plaintiff's name again.

As I sit here waiting for the AMAZING RACE to start, CBS News just reported that 40 states are jointy investigating issues with mortgage paperwork.

When mass foreclosures began...about 3 or 4 years ago....some lawyers decided that instead of charging for the work they did, they would charge a flat fee for every month they kept the client in their house after a foreclosure case were filed. Instead of paying a $2,000 or $4,000 monthly mortgage, you would pay the lawyer $500 per month.

Other lawyers (like me) thought this fee arrangement was tacky and that it seemed destined to encourage violation of an ethical rule that says that a lawyer defending a case should not delay the case.."solely for the purpose of delay". You are suppose to actually have a legitimate defense and not just keep a Plaintiff from getting a judgment by messing with the rules and jerking the Plaintiff around.

As it turned out, just about every mortgage foreclosure case out there does have a legitimate defense. Now..with the B of A and PNC announcement...and others soon to follow...homeowners will maybe be able to stay in their homes for years and years and years without paying. For homeowners, five hundred bucks a month may sound like a lot to pay a lawyer to do nothing but I don't think any lawyers are going to complain.

There are a lot of benefits to delaying mortgage foreclosures indefinitely:
-Fewer homes on the market means prices will stablise...home prices might even increase.
-Worthwhile modifications may be easier to come by. (Now, most lenders won't do meaningful modifications and most homeowners who do modify their loans land up defaulting.)
-Homeowners who can't pay their mortgages can, at least, keep the a/c on and the vandals out. Abandoned houses go to crap quickly.

I have changed my opiniong of the $500 a month lawyers, I no longer have any problem with them. They will make truckloads of money and join the super-rich. And, if I critize them, nobody will ask me out for drinks on their yacht.

Editor's Note: Bob Smith is a retired South Florida lawyer who now lives in Northern Wyoming where there is no foreclosure crisis and where the largest body of water is about twice the size of the swimming pool at the Ritz-Carlton.
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Tuesday, September 28, 2010, 09:16 PM
Posted by Administrator
A few days before I retired, I was sitting in my office at 4:30PM, about to go over and pick up my car at the tire store. A call came in. "Mr. Bob," the caller said in a island accent (but not the islands of Puerto Rico, Cuba, Jamaica, the Bahamas, Aruba, Anguilla, or the Virgin Islands) "I come over and see you. Where you located?" While, normally, I was a big fan of the scheduled appointment and I liked to limit my drop-ins to clients possessing great entertainment skills (I am partial to stand-up comedy and juggling) or exquisite beauty, I wasn't up to much so I gave the caller directions to the office.

I asked who had referrred him to me. The answer was garbled.

The caller...already in the car and on the way... gave the phone to his passenger else and I repeated the directions. They called about five minutes later and I repeated the directions. I told them they were still about ten minutes away and they called about 60 seconds later for directions. They called again "We are here at your office building." I said "But, my office is not in an office building."

Eventually two men showed up at my door. The first pointed to the man behind him as the client. The client was a short, thin man dressed in light blue scrubs. They both sat down at my desk and I asked what it was about.

"I rented from a guy and they foreclosed on his house and then the new owner came in and put holes in the walls and took out all the appliances and I signed a lease with him but he said he was going to come back with new appliances but he hasn't come back and I need your help." I asked to see the paper he had in his hand. The paper was a Writ Of Possession stamped "SERVED" and dated three days ago.

Once a landlord has won his eviction case, once a buyer at a court-ordered foreclosure sale has taken title, they are entitled to a Writ Of Possession. The Sheriff serves the Writ and posts it on the door of the residence or business and the tenants/former owners/squatters/whoever have to be out the next day or the Sheriff will come with people and put their stuff out onto the street. A Writ Of Possession is the end of the line. When you are served with one, it is are don't live there anymore. But there is the idea of justice and fairness and due process and feeling bad for the down-and-out.......

So, I asked the client when he had last paid rent "June", he said. It was September. And I asked the client whether he had paid the new owner rent when he signed the lease he said he signed "No", he said. And I asked the client whether he had any money to pay me. He started mumbling.

So, I said to the client, "I think you are just a freeloader, get out of my office." His friend stood up and began moving but the client sat there. I said "You need to get up and get out of my office now." I said it again. The third time was the charm...they left.

This was the first time I had thrown anybody out of my office in years. I am sure a better or smarter man/woman would have helped this guy try to continue to live where he was living for free (with new appliances) and do the legal work for him for free as well.

It just wasn't going to be me. ........ or anybody I knew who had an ounce of common sense...or anybody who didn't have a perverted sense of what we, as lawyers, were supposed to do to help people who can't afford legal fees.

But, I am not bitter about my time being wasted and my blood pressure being raised... and I would like...right now... to invite all of the people I have thrown out of my office up to see me in Northern Wyoming:
-The old man who wanted me to help him divorce his wife and then force her to be his household help.
-The young man who thought the voices on the TV were talking directly to him and who later got arrested by the Secret Service for threatening to kill Clinton.
-The crazy man who felt compelled to line up his dolls on my desk.

All of you, come on up to Wyoming. Winter's coming and all I'll have to do is chop firewood so I could use the company.

(Of course, at the first hint of Spring, all of you are back out on the street or I'm calling the law.)

Editor's Note: Bob Smith is a retired South Florida lawyer who writes for the blog from his cabin in Northern Wyoming.
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Tuesday, September 21, 2010, 08:15 AM
Posted by Administrator
Editor's Note: Bob Smith is a retired South Florida lawyer who writes for the blog from his cabin in Northern Wyoming.

Last night, I found myself in Cody, needing to get a prescription filled. So, I headed over to the Walgreens. Though they don't have a Walgreens on every street corner here like they do in South Florida, they do have one or two. I stood in the pharmacy line.

There was a young man in front of me. He was thin. He was wearing sneakers (I think they call them "running shoes" now) and blue jeans and a black shirt along with a black baseball cap. His hips were pushed up against the counter and he leaned over at the pharmacist as she worked on the computer trying to get his insurance card to work.

He fidgeted uncontrollably...scratching the back of his right calf with his left foot, then scratching the opposite way, then poking one foot at the floor, then the other foot, and moving his shoulder right and left and back again. He spoke in a loud voice "I got my last prescription here and the card worked then." He paused, "Well, no...actually, I got my last prescription at Wynn Dixie and the insurance card worked there." "I can't understand why it isn't working." Then, "Oh, can I keep the savings card you gave me?" "Great, it is like I help you and then you help me."

His phone rang. "Hey bro.", he said in his loud voice. "No, I'm over here at Walgreens picking up my Zanax prescription. I gotta go, I've got another call coming in. I'll call you when I get close to your house."

Finally, he was convinced that his insurance card wasn't going to work like it had at Winn Dixie and he paid cash for the Zanax. Before he left, he said to the pharmacist "Do you have oxycotin here?" She said "No." (By which she meant...she told me later... "Not for you.")

I don't have any objection to Walgreens selling prescription drugs to someone who obviously had a drug problem and who was likely on his way to sell drugs to his "Bro". ("I'll call you when I get close to your house."??) But, on the other hand, the guy probably doctor shopped to get the prescription and he was about to traffic in narcotics (which has got something like a 25 year mandatory minimum prison sentence attached to it). So, you would think he least...keep a low profile during his visit to Walgreens and not act stupid in front of the pharmacist and me.

And, I am thinking that this may somehow relate to an article I read in the New Yorker magazine over the weekend. Here is my synopsis:

South African psychiatrist lies about his qualifications and get appointed the head of the Psychological Medicine Department at a New Zealand medical school. Previous to moving to New Zealand...and, later, while he is there...he lies about all kinds of things ("My paper is late because my wife is dying of cancer."); conducts web searches on how to poison someone and not get caught; tells a room full of people that his wife is in a coma months before........he shoots her full of insulin and actually does put her in a coma.

Eventually...after making comments that amounted to the police in New Zealand being particularly stupid....he gets arrested and then convicted of his wife's murder.

When the New Yorker's writer contacts the sociopathic psychiatrist in prison and asks for an interview, the response is, more or less "You normal people don't understand the pain we sociopaths are in."

Anyway, I digress........the point of the article was that sociopaths tend to think the rest of us...including the cops..are stupid. They believe, for example, that nobody will notice the lies, that they will be able to explain away their internet searches about ways to kill people after they actually kill someone, that no matter what they do-the rest of us are too stupid to figure it out.

And I think this explains the guy at Walgreens. I am not saying that he is a killer-sociopath. But, on the other hand, if he doesn't realize that being out in public buying drugs while acting like a druggie will sooner or later get him arrested......then he is like a lot of people I know who are sitting in jail who didn't think so either.

And, I am not saying that they should be sitting in jail (or washing Sheriff's cars out behind the Drug Farm...remember, Sigmund Freud was a cocaine addict and he still managed to find a good job). But, for some reason I don't fully undersand, they don't let me write the laws.


Editor's Note: Bob Smith's views on drugs were formed by an interview he heard years ago on National Public Radio. The interviewee, a law-and-order conservative type said, more or less: "Let's legalize drugs...but when someone dies of a drug overdose, we'll take the body and leave it in the street for a few weeks. Then we'll see who is still interested in doing drugs." Bob believes that if we took all of the police who were doing anti-drug work and set them to making sure that bombs were not on airplanes and guns weren't going to Mexico and kid street gangs were not terrorizing our neighborhoods, the world might be a better place.

........oh, by the way, let's lower taxes and make government smaller....................Bob Smith

.......a lot smaller..

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Thursday, September 16, 2010, 02:19 PM
Posted by Administrator
One day many years ago, I wrote a letter to my client and FAXed it over to him. But, in FAXing it over to him I sort of used the FAX number for the other lawyer. So, I FAXed the letter I meant to go to my client to the lawyer on the other side of the case.

The second sentence of the letter said "I don't want to jerk Craig ___________ around." Craig ____________ was the other lawyer.

A few minutes after the FAX went out, a call came in. It was Craig ______________. I got on the phone. Craig said "What do you mean calling me a jerk in the letter you wrote to your client?"

I said, "Number one, I didn't call you a jerk...I told my client that we shouldn't jerk you around. Number two, what are you doing reading my confidential letter to my client?" The letter didn't become un-confidential just because I had used the wrong FAX number. ...and you would figure a lawyer...if nobody else...would know that...

Lawyers communications with their clients are confidential. The jail isn't supposed to record what you say to your criminal-defendant-client. When the lawyer on the other side questions your client at a deposition and asks a question that might seem directed to finding out what you and he talked about, he/she will say (usually) "But don't tell me what you and your lawyer talked about." It is the courteous thing to do.

Your lawyer can't be called into court to testify about what you told him/her. In the Federal system, if you've...for tax evasion problems, your lawyer will hire an accountant for you so the accountant is part of the legal team and the lawyer-client priviledge attaches to what you say and do with the accountant. (There is a Florida accountant-client priviledge but there is no Federal priviledge.)

Still, before spilling your guts to your lawyer, you may want to update your complete knowledge of the lawyer-client priviledge. (I've written about the priviledge in earlier blog entries and I have covered some of the pitfalls).

What made me think of this? I just got done writing an email to another lawyer the top...I wrote: "THIS IS A CONFIDENTIAL COMMUNICATION FROM A LAW FIRM. IF YOU ARE NOT THE INTENDED RECIPIENT, DELETE IT...DON'T READ IT. THIS MEANS YOU!!"
Since I have been using email a lot, lately, I am concerned that I might address one incorrectly (it has been a long time since the last time I mis-addressed something, so I am probably overdue). I try to be general in what I say in my emails so that if one does get misaddressed, the (unintended) reader won't really know what I am talking about.

Anyway, it has been a long time since Craig _________ told me not to call him a jerk. And, he wasn't a jerk. But, I'm not sure he was the world's most thorough reader.

Criag ___________ is the reason that I have incorporated the "THIS MEANS YOU!!" in my warning.


Editor's Note (by Bob Smith): "THIS MEANS YOU!!" is a rip off of the warning "HEY! THAT MEANS YOU!" which precedes "Turn this board over and read the label before right now! which appears on the top surface of Duhl's Bongo Board. The full Bongo Board warning reads as follows:

"Ice is slippery. Life is risky. Bones break. In life, as with this product, accept only the level of risk that you can competently handle. To minimize the chance of injury, wear a helmet and appropriate safety gear at all times when using this device and give yourself plenty of space to maneuver. Also, read the provided instruction sheet prior to using. Lastly, remember that the best protection from injury is a little common sense."

In addition to using common sense, it is helpful to read things thoroughly and to carefully consider what FAX number and Email address you really want your stuff to go to.

Or, at least, wear a helmet.
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Tuesday, September 14, 2010, 10:16 AM
Posted by Administrator
Early this morning, a short woman with brown hair was standing behind me in the sign-up line for people who throught they had hearings on mortgage foreclosure cases. She told me that she worked for one-of-those-big-prestigious firms. Before the economy went to crap, she did commercial real estate...the paperwork that went with purchases and sales. Now, she gets involved in complicated foreclosures as kind of a more intelligent side kick to the mortgage foreclosure firm's associate.

As I pumped her for information, her brown eyes darted back and forth. I apologized for making her uncomfortable and I told her that what I was asking had nothing to do with the hearing I was in court for this morning. I didn't want her to think that I was trying to get her to rat out her people.......the banks and mortgage certificate holders that got us into this mess.

So, here is what I found out as a result of my attempts to get her to rat out the banks and mortgage certificate holders that got us into this mess.

1) By way of example "U.S. Bank National Association, as Trustee, successor by merger to LaSalle Bank NA as trustee for Washington Mutual Mortage Pass-Through Certificates WMALT Series 2006 AR5-Trust" is (according to this woman) really just a happy bunch of guys sitting around having a beer and telling stories. It is I had foolishly thought...a bunch of rich people and banks getting richer on the backs of middle class homeowners.

2) I had thought that part of the problem getting a short sale or a modification approved was that there was nobody able to make a decision for these trusts. I was wrong. If you are a lawyer for a pretigious firm like the brown-haired woman, you can call the "servicer" and the "servicer" will call the trust investor for an answer. She said that she always gets an answer.

3) On the other hand, she told me that these trusts had many, many investors so it was unclear to me what "investor" she was getting an answer from. So, I will stupidly continue to believe that a huge problem with the "trusts" is that they were set up to make money....and that the ways to divvy up the money are set up in the trust agreement. On the other hand, they weren't set up to lose money or make deals to cut their losses (short sales and modification). So, if there are a lot of investors.......nobody is really going to agree to anything.

Before I talked to this woman, I had believed that once a mortgagee (the homeowner) defaulted, AIG...with money from the U.S. government.....paid off the mortgagors (the certificate holders) for whatever was still owed ont he mortgage. Sort of like when you total your car, Progressive or GEICO or ALLSTATE pays for the loss. Then, Progressive or GEICO or ALLSTATE take your car to their yard and sell the salvage for several thousand dollars to pay itself back for some of the money the insuror paid out. (I once sold a wrecked LEXUS for about $4,500.)

But, AIG didn't take the mortgage over to try to pay itself back for some of the losses. The losses were just government money so...who cared? So, the idea was that the certificate holders would still have the mortgage to sell or foreclose on and get even more money.

The woman said "no". "Mortgage insurance doesn't pay for the entire loss." By "mortgage insurance", I found out, she meant the payments to the certificate holders to AIG (so, I was right about this part). The certificate holders then got to foreclose the mortgage or sell it to make up the difference between what they had been paid and the amount of their investment. ...or to make even more money.

Whether I am right that there is windfall going to these certificate holders or the woman is right that they are just getting even......I am glad that, at least, they won't be out of pocket. It is bad enough that middle class people are losing what they've got. It would really stink if rich mortgage investors and bankers had to suffer, too.

Editor's Note (by Bob Smith): Duhl is ...and has been for years... a registered Republican. On this subject, he says "Yeah, but in the past 15 years, I haven't been able to find one I'd vote for." Duhl intends to run for Congress, himself, in 2012. He says "But, wouldn't I be the first Jewish congressman?"

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HEY YOU..........STAY IN THE Bob Smith 
Sunday, August 29, 2010, 11:17 AM
Posted by Administrator
I remember when I was a young man attending College in Colorado, driving my Ford Econoline Van North to Estes Park (the gateway to Rocky Mountain National Park), I was stopped by the Colorado Highway Patrol. My sister was visiting me in Boulder and, at the moment flashing blue lights appeared in my rear view mirror, she was sitting the passenger seat of the Econoline smoking marijuana. I am not saying that she should have been smoking marijuana but I did prefer that she and I not get arrested.

I pulled over to the side of the road near the Drive-In movie theatre that sat on the dusty prarie a few miles outside of town. I got out of the van and stood by the rear bumper, waiting for the Trooper. This is what he said:

"You can't have a FOR SALE sign in the back window of the limits your ability to see out of the rear." I said "Okay, I'll take it off."

It was in the early 1970's. I had hair down to my shoulders. Colorado was a conversvative state and I had just been stopped by the State Police. Still, this was the extent of our encounter.

I took the FOR SALE sign down and continued the drive.

These days, when the police stop you they want you to stay in the car. My family has three different theories of why this is:

1) It is safer for the police officer because this gives the officer time to run your license plate to see if it comes back stolen. There is more time to call for back up. There is more time to think about what to do. (Do I need to get my gun ready?)
2) No idea.
3) Because... if the driver remains in the car, the police officer gets to come up to the car; smell for odd-marijuana-smelling odors; look around to see what illegal things might be plainly visible; root around any area the driver could reach to "ensure that there are no weapons". In other words, keeping the driver in the car give the police officer more opportunity to come up wiht something illegal that would get the driver arrested.

Guess which idea is wife's...our 15 year old daughter's....

I am not saying that if the police officer has a good reason to tell you to stay in the car he/she shouldn't get on the PA system and tell you to stay put. For example-two or more scary looking people in the car...better to have them sit.

But, on the other hand, back-before-the-liberals got into power, even people who were stopped for traffic infractions had a right to get out of their car and stand by their bumper and limit the encounter with the police to getting a ticket...or not. The Colorado trooper who stopped me in the 70's...a man who I am willing to bet was a card-carrying-Christian-conservative-who-believed-even-Nixon-was-a-commie believed that it was his job to get me to take the FOR SALE sign out of the window and not to otherwise interfere with my trip.

Note: My sister stopped smoking marijuana in the 80's and has gone on to get several college degrees have a successful career...she far..not have not graduated to heroin addiction and she shows no more signs of brain damage than would be expected of anybody whose fate was to grow up as my sister.

Editor's Note: Bob Smith is a retired South Florida lawyer who now lives in Northern to the Canadian Border. As he wrote the above, Bob was sitting on his back deck waiting for the year's first snow and throwing rocks at the deer rooting around in his garden.
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Tuesday, August 24, 2010, 01:12 PM
Posted by Administrator
For a couple of years, I have not advertised with ATT or the Yellow Pages. I had always found their prices too high and their salesman to be bullies.

Two men from ATT Advertising came to see me about three weeks ago to try to sell me internet advertising. I asked them to come back and give me prices.

A few days later, they came back with prices:
-$675 per month...more or less...for "pay per click". Google can charge $12 for every time some clicks on a featured website. ATT...a bulk buyer of google clicks...says they could do it for $2 a click.
-$1,000 per month...more or be one of the featured 5 or 6 lawyers in a category in (google "yellow pages" and then put in, for example, "criminal lawyer" and "palm beach gardens or boca raton".

I was undecided. As they left, I told them that the real advertising decision maker was my secretary.

The next day, the larger man called. I told him "no".

Two days later, they both showed up again and planted themselves in my office. They stayed planted through a conference call I had scheduled with a state agency. They stayed through phone calls. They stayed.

The younger man, who was the boss, had always made it clear that he did not think that he was "selling me". I had always told him that, as a former salesman (cars, motorcycles & computers), I didn't see anything bad about the word "sales" and that I hoped he was trying to sell me...(if not, then what WAS he doing?). At our final meeting, he said "I'm not like a used car salesman." I reminded him that I had been a used car salesman; didn't particularly rip people off; and had learned a lot from the experience.

The young man was indefatigable...a word I have never used before (incapable of being tired out; not yielding to fatigue... THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, THE UNABRIDGED EDITION, 1966, 1967). He never stopped selling and never stopped denying that he was selling. "Would you do it if it were free?" "You told me last time you would spend $10?" "Don't you think you would get more business?" "Do you really not think that the advertising would pay for itself?" He tried to express disbelief that I wouldn't go along with what he was suggesting (...wouldn't buy what he was SELLING).

Finally, I asked the older man to walk with me. We went outside and I told him "I told you that the decision maker on advertising was my secretary. You violated the first rule of sales----speak to the decision maker."

At this moment, the younger man ran out of the office. He was very agitated. "They sent my son home with the walkers.", he said. It was the first day of school. His son was supposed to be driven home. Now, he said, they couldn't find his son.

The older man went back into my office to get their papers. As the older man he walked out, the younger man said to me "I was going to give you a free ad in the Wellington directory."

Then, they left. I phoned the next day to see if everything was okay with the son.

I don't think I'm getting the free ad.

RULES OF SALESMANSHIP (thanks to Joe Trivisone frmrly Burroughs Corporation Territory Manager and Frank Simone frmrly Sales Manager, Volkswagen of Bayside):
1) Deal only with a decision maker.
2) Make your customer want to be like your life.
3) Ask for the order.
4) Whoever talks first loses.

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A GOOD FAITH Steve Duhl 
Thursday, August 19, 2010, 01:12 PM
Posted by Administrator
An important issue relating to lawyer's conduct in the courtroom that doesn't come up much is the "good faith basis" that lawyers need to have before they ask a witness certain questions. The idea is that lawyers are generally believed by judges and juries (really, we are) and that if a lawyer asked a witness:

"How many times have you been convicted of a felony, Mr Jones."

The judge or jury (whichever the trier of fact happens to be) is likely to matter what Mr. Jones says......that he is a convicted felon. So, if a lawyer is going to ask:

-About criminal convictions.
-About criminality.
-About drug use. ("You are a heroin addict, right Mr. Jones?)
-About immorality. ("You lie every day, don't you, Mr. Jones? ...and you have 3 wives, right?
-About the witness having done something extremely stupid...

...the lawyer is supposed to have a good faith basis for asking the question. That is, the lawyer is supposed to have a good reason for believing that the truthful answer to the question is "yes".

Lawyers learn this in one of two ways:
-Paying attention in evidence class.
-Asking a witness an objectionable question (this morning, a lawyer asked my client "Do you use drugs?")...without that "good faith basis" and then getting yelled at by the judge.

A good faith basis for asking someone about a criminal conviction probably can only come from having court records indicating a conviction. For drug use, the good faith basis might come from having observed the witness to always seem high. A few months ago, I asked a witness "Is that because you shot yourself in the head?"

At the time I asked the "shot yourself in the head questions", the witness had already testified about mental problems that arose fairly recently and someone had told me that he had shot himself in the head. The judge wouldn't make the witness answer the question...(and the judge was wrong). (On the other hand, the judge knew by my question that he probably had shot himself in the, there wouldn't have been much point in him/her requiring the witness to answer.)

Lawyers who without a "good faith basis", ask questions virtue of the question itself...impugn the integrity of the witness are subject to being sanctioned by the court. And, of if the question is asked in front of a jury...let's say by the prosecutor, the jury ought to be told:

"Ladies and gentlement, the prosecutor, Mr. Smith's, question was improper...he did not have a basis for asking the defendant whether he sold drugs to school children and you must ignore the question." And the jury will think either :
1-The prosecutor, Mr. Smith, is a no-good cheat to have questioned the integrity of that nice criminal defendant and the prosecutor is not worth believing...the jury will then go on to find the defendant not guilty, or,
2-The judge is just telling us that good-faith-basis-thing because of some technical legal rule that we-the-jury don't care about... the defendant did sell drugs to school children (though whether or not he did has nothing to do with the charges in the case we are deciding) and we're gonna go ahead and convict the bastard because anybody who the prosecutor suggests might have sold drugs to school children ought to be in prison whether or not that has anything to do with what he is charged with now.

OK, probably #2.
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CHEAP Bob Smith 
Friday, August 13, 2010, 09:36 AM
Posted by Administrator
When I was still a practicing lawyer, middle income people could get divorced for not much more than the cost of a root canal or two. Judges trusted that lawyers would do their best for their clients and, when a Judge was presented with an agreement signed by both parties, the Judge would sign off and the parties could go their separate ways after a hearing that usually took around 90 seconds.

The lawyer would ask.........
What is your name?
Is this agreement I am showing the Judge an agreement signed by both you and your husband?
Did anyone force either of you to sign it?
Does it settle all the issues between the two of you?
How long have you been a resident of the State of Florida?
Is this your driver license I am showing the Judge?
Is your marriage irretrievably broken?

Then, the lawyer would say (at least for the past 15 or 20 years during which we have had, here in Florida, legislated guidelines for child support): "Judge, the child support IS according to the guidelines." And, I always thought the lawyers who said this were telling the truth. I was when I said it.

The Judge would sign the Final Judgment incorporating the agreement, make a brief speech to which ever of the parties to the divorce had come to court (the speech was intended to make the Judge appear likeable and someone to vote for in the next judicial election), and the Judge would then wish everyone well........then move on to the next case.

Now, things are different:
You need a Statement of Social Secuirty Number; Financial Affidavits which have to jibe; with the Child Support Guidelines Worksheet; along with a Parenting Plan. You've also got your signed agreement, proposed Final Judgment, testimony at final hearing sheet, and case disposition form.

...and all of this (in a world where we apparently no longer trust lawyers to do right by their clients) is a wonderful thing. ..except that it all costs money ...and the dishonest among us will jimmy the numbers, anyway .....and divorces were pretty expensive to begin with...

If the numbers don't jibe then you've got to have a big hearing. If you want to pay more child support than the "guidelines" call for you've got to have a hearing. If you don't have all the papers, you've got to come back. If the numbers on the Financial Affidavit change during the course of the case (you have a new expense for health insurance because...guess are getting divorced) you've got to redo the can't just tell the judge that the numbers changed and you and the other lawyer agree on the numbers that result.

I am not saying that we ought to do (what I understand) Muslim men can do to to get a divorce: say "I divorce thee." "I divorce thee." "I divorce thee."

Okay, maybe I am saying that.

Editor's Note: Bob Smith is a retired South Florida lawyer who now resides up North, just next to the border with Canada.
Bob says: "I'm retired now but good luck to all of you young lawyers who have to put up with this crap. You old guys ought to give it up and come here and see me in's gonna be moose season soon."

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CAREER ADVICE...................from Bob Smith 
Thursday, July 22, 2010, 07:35 AM
Posted by Administrator
When I was a middle aged lawyer in beautiful, downtown South Florida, there was one lawyer with a TV ad: David Singer. As I recall it, David would sit behind a desk with a lamp on it and tell the TV audience that there was always a light on in his office. The idea was that he was always working, always thinking, always hucking for new personal injury business.

David had an accent...or spoke in an unusual way due to the after-effects of Bells Palsy having paralyzed some portion of his facial muscles....I was never sure which. But, on the other hand, he sounded nice and sincere and he was, after all, always working.

A long time ago, in a land far away called Gainesville, I worked for a while for a lawyer who (I have heard) was disbarred a few years back for carrying a gun (or something to do with a gun). Television advertising had just been approved by the Florida Bar (the Bar figured out that the whole "free speech" thing even applied to lawyers) and this lawyer in Gainesville had a TV ad that featured him (wearing a dark pin-striped suit) riding a child-sized tricycle down the sidewalk and running into stuff. It was the first lawyer TV ad I had ever seen.

Around the office, the guy wore diamond rings on most of his fingers, so, I guess he had some success with the ad. It was with this lawyer that I learned (though I later forgot) that all young girls who had the misfortune of being bitten in the face by a dog had been on track to being models. (Amazing coincidence...or just what you told the insurance company in your demand letter? Who knows?)

Anyway, this blog entry is about career advice not diamond rings or signs of suspected Bell's Palsy. And, anybody who watches TV, looks at signs on top of taxicabs (no, not the signs for the strip clubs)...anyone who has had the chance to suck up some diesel fumes while they read the sign set between a bus' taillights...or looked at a bus bench, or a billboard, or a the signs on the walls of bowling alleys...knows that the biggest advertisers on earth after Coke and Pepsi are lawyers. So, here is the career advice:

Instead of going to dental school (as I have previously suggested), make a career out of selling advertising to lawyers. Lawyers, apparently, will advertise anywhere and the sky is the limit when it comes to their advertising budget.

(Call me...........I've got prospects.) Bob Smith

Editor's Note: Bob Smith writes for the blog from Northern Wyoming. Bob Reports: "For anybody who says there is nothing to do here in Northern Wyoming, just drive the 12 hours to the Tim Horton Donuts in Medicine Hat, Ontario (2355 Trans Canada Way SE).'ll see what good times are...."
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Tuesday, July 13, 2010, 09:46 PM
Posted by Administrator
For years, this is what I would tell criminal defendants who were out on bond and charged with un-horrible crimes. "Are you sure I am not going to jail, today?" I would be asked. "Yes, I am sure", I would say. "But are you really sure?", This is what I would say: "The only way you are going to jail today is if you make a run for the guy in the robe, dodge the bailiff, jump the bench and choke out the judge."

Some of my clients did bad enough stuff that eventually they landed up in jail. But, since nobody attacked the Judge, nobody went on a day I promised they would not go.

A teaser on Bing, today, was more or less this: "People in jail for owing $250." And, though I have written about the subject of debtor's prison before, I thought I would take another shot.

Here is how to go to jail for owing money:
1) Live in Saudi Arabia, Quatar, the UAE, Dubai and who-knows-where-else and owe money and you may go to jail.
2) Live here in Florida (and, I am betting, the rest of the U.S.) and follow these easy steps:

a) Wait to get sued.
b) Do nothing.
c) Wait until a judgment is entered against you.
d) Wait for a Subpoena for deposition or a court order directing you to answer questions under oath about your assets.
e) Ignore the subpoena...don't answer the questions.
f) Wait for a notice to go to court to explain to the judge why you ignore subpoenas and court orders.
g) Don't go to court.
h) Wait for the court to issue an Order directing you to show cause why you should not be held in contempt for not appearing for deposition or obeying the court Order.
i) Ignore the Order To Show Cause.

If you follow the steps outlined above, eventually, the Court will find you in Contempt and will issue a Writ of Bodily attachment and the Sheriff will one day haul you off to jail. You may sit in jail until your deposition gets taken or you answer those questions about your assets. Or, you can post a bond in an amount equal to the amount of the judgment against you and they'll let you go.

It is not easy to go to jail for owing money here in Florida but, if you try hard enough, you can do it.

If you change your mind about trying to go to jail, think about filing bankruptcy. Assuming you can file, the state court judge and the lawyer who got the judgment won't be able to touch you.
Just for fun......wait until you know there is a Writ of Bodily Attachment and a Deputy is looking for you....then, go see a lawyer. Life is more fun if you get your adrenaline pumping.

Editor's Note: Bob Smith is a retired South Florida lawyer who writes from the blog from his cabin in Northern Wyoming just a few miles from the border. Bob says "Who knew they had summer even in Canada."

Editor's Second Note: Child Support and Alimony being in the nature of mandatory court orders are different. You don't have to try quite so hard to get into jail.
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Monday, July 12, 2010, 08:33 PM
Posted by Administrator
Hereabouts, in beautiful Palm Beach County, Florida, if you want a divorce you've got to try to settle your case...and fail.. , before a judge will let you go to trial. It would be flippant of me to say that judges have golf to play or lego forts to build or whatever it is judges do in their spare time and that they don't much want to hear your case...unless they absolutely have to. And I am not a flippant man.

One of the things you've got to do is you've got to go to mediation before you can have your trial. Here is how it works:

1) Everyone sits in a room at a long table.
2) The mediator sits at the head of the table.
4) The husband and his lawyer sit on one side...his lawyer next to the mediator.
5) The wife and her lawyer sit across from them.
6) The mediator gives a little speech about how everything said in mediation is confidential; how he/she is not a judge and can't decide the case or offer legal advice even though he/she has tons of experience in exactly this kind of case; how each of the parties have wonderful lawyers.
7) The lawyers, in turn, give a little speech about the issues.
8) After messing around for a while, face to face a la THE WEDDING CRASHERS or (for the oldest among us) LA Law, one party stays in the room and the other party retires to another room.
9) The mediator shuttles back and forth between the two rooms, communicating offers, telling stories, killing time.
9a) While the mediator is with the other side...and this could be forty minutes at a client and I have got to entertain each other. A moment of strategy. A brief talk about the law. And then? I can do TV shows, movies and things-I-did-as-a-kid-that-didn't-land-me-in-jail. What have you got?
10) The parties settle...or not.
11) If the parties don't settle, (at least) one of the lawyers says to his/her client "Remember, you can always settle---all you have to do is give them everything they want."
12) The mediator gets paid.
13) Everyone leaves.

I have written previously about other mediation related topics:
A) The longer you spend trying to settle the case, the lower your blood sugar gets, the more you bond with the mediator and don't want them to leave without getting the case settled. So, the longer you stay, the greater the chance you will settle.
B) If you absolutely don't want to go to trial then you absolutely must settle. If the other side knows this absolute then you will have to give in to what they want.
C) Every big decision involves a moment of insanity. The next day...when logic sets will regret what you agreed to. This is normal. Reality is that you were right to take the deal...and wrong to think too much about it afterward.
D) When in doubt: mumble.
E) Don't commit until it is time to commit.
F) Don't respond to stupid offers---pretend that stupid offers never were made...ignore them and move on.
G) Remember, the other side can always settle the case anytime they want. All they have to do is........whatever YOU say.

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Monday, June 28, 2010, 01:16 PM
Posted by Administrator
Last week, I received in the mail a "COMBINED TAX STATEMENT FOR YEAR 2009" for a client of mine who died a couple of years ago at the age of 93. It came from my good friends at the Bank of America. Here, stripped of verbiage that I didn't understand, is what it said:


What happened was that George died without paying an $1,800 credit card bill. He had no estate opened with the court because he died with nothing. And, after a while, the credit card company realized they weren't going to get paid; believed they had tried hard enough to collect; wrote the bad debt off as an expense on their books; and told the IRS that George had an addition $1,880.02 income in '09. The "income" was from having his credit card debt "forgiven" Had George died with money or if the same thing happened to someone who was living, they could have to pay the IRS income tax on the $1,880.02.


If you have your debt forgiven in a bankruptcy, you WON'T (WILL NOT) get "1099'd"** for "forgiven" debt...there are, generally, no tax consequences attached to debt discharged in a bankruptcy. On the other hand, if you make a deal with a creditor to reduce your balance; if you do a short sale on a house you don't live in; if you don't pay your likely will get yourself one of these COMBINED TAX STATEMENT FOR YEAR ___whatever year it happens in__________. ...and you likely will have to pay.

This is not tax advice. I don't know enough about taxes to give advice. I am just reporting on the Statement George got...and why he got it.

I will now rejoin the living.

**pronounced: ten action verb...the act of telling the IRS (with a copy to you) that you have more income that you need to pay taxes on than you thought you did. example: "After I settled out my credit card debt with Bank of American, they ten ninety nined me." or "Oh, you got ten ninety nined, also? Me too."
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Thursday, June 24, 2010, 09:30 AM
Posted by Administrator
For some reason, some people who visit the blog expect to find stuff about legal issues. Though I can't explain why there would be this expectation, I do not want to disappoint. And, when discussing things legal, there is no way to avoid boring discussion about topics that won't interest very many.

On the other hand, if your driver license is suspended for (what we here in the Sunshine State---Florida----call) FINANCIAL RESPONSIBILITY (the "FR Suspension") or if you have filed bankruptcy within the past 8 years, READ ON. But, realize there is no way of making this subject amusing or entertaining. (And, if you don't live here in Florida, a lot of this probably doesn't apply to YOUR backwater state.)

We in Florida don't have to have liability insurance on our cars....until we get into an an fault accident. After that first accident, we need at least $10K in liability insurance. $10K in liability insurance is about enough, these days, to pay someone back for injuries to their dog. So, in any decent car accident, there is going to be more than $10K in property damage and personal injury damamges.

If you get into an at fault accident and you don't have insurance and you get a ticket and you plead guilty or are found guilty of the infraction that led to the accident, your driver license will be suspended until you:
1) Pay the person you hit (and pay back their insurance company for money it paid out) for their damages.
2) Make a deal to pay them for the damamges over time.
...if you file Bankruptcy, the DMV isn't allowed to hold the fact that you can't pay their damamges against you. And, the DMV...once you give them proof of liability insurance and do some other things...will reinstate your suspended license.

Bored yet?

What if you have some liability insurance but not enough to cover all of the damamges? Then your license won't be suspended until the other party...or their insuror...sues you and gets a judgment. Then your license will be suspended until you pay (except for the whole BANKRUPTCY thing...see above).

Is there any more information about this that I can possibly torture you with? YES!

OK, say you have filed bankruptcy the past 8 years...and you get an FR suspension....what do you do?
A) You could maybe file a Chapter 13 bankruptcy.
B) You could maybe follow options 1 or 2 in the preceding paragraph


Once you file your bankruptcy, get real good auto insurance so that if you get into that at fault accident, your license won't be suspended to begin with.

Thank you for your attention.

.........Steve Duhl
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Saturday, June 19, 2010, 04:29 PM
Posted by Administrator
It is a wonder of modern technology combined with old time driving on crappy dirt roads that results in my New York Times getting to in Northern Wyoming....on the same day it gets to the civilized world. least in the Spring and Summer. Today's right side headline (which my 6th grade teacher told me that in a newspaper having 5 or six columns of headlines was the most important) is the same as the title to this entry.
Here is some of the rest of the Times article:

-"State attorney generals from New York to California and consumer watchdogs like the Better Business Burueau say the (debt settlement industry)'s proceeds come at the direct expense of Americans who are being fleeced........"

-"The industry's own figures show that clients typically fail to secure relief. In a survey of its members, the Association of Settlement Compa ies found that three years after enrolling, only 34 percent of customers had either completed programs or were still savings for settlements."

An example the Times gives in some nice old woman who give $4,000 to her debt company, then gets sued by a creditor she thought they were taking care of, then finds out that only around $1,500 of her money is left...the rest having gone to pay the company's fee. She, according to the Times THEN filed for bankruptcy.

The above is from the Times...and is reprinted without its permission and is intended (lest the Times want to sue me for stealing their stuff) as a reminder to everyone to subscribe to the Times. It needs the readership and it is the best newspaper on earth. And not the liberal rag some make it out to be. (Heck, if it were a liberal rag, my neighbor down at the fork in the road wouldn't let the newspaper delivery man get past the barrel of his shotgun.)
Bob continues:

I'm sure there are some great debt settlement companies out there. Or, at least some that aren't ripoffs. I don't know which ones they are. And, unless I find someone who doesn't qualify for bankruptcy, I don't much care.

......wait, I forgot, I'm retired........I don't much care either way..


Editor's Note: Bob Smith is a retired South Florida lawyer who writes for the blog on those days when he wakes up on the wrong side of the bed.
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Thursday, June 10, 2010, 04:18 PM
Posted by Administrator
-Todas sus facturas de los ultimos 90 dias.
-Su declaracion de impuesto del ano pasado.
-3 meses de estados de cuenta bancarios.
-Todos los registros de sus ingresos se puede...los ultimos 6 meses.

Si usted no tiene todo esto, vienende todas formas y vamos a averiguar el siguiento paso.

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Saturday, June 5, 2010, 01:29 AM
Posted by Administrator
Editor's Note: Sherry Rabinowitz, a former South Florida lawyer who moved back North on the recommendation of her dermatologist ("Sherry, if you stay in Florida your skin will turn to leather and you will die of skin cancer before you turn 35.") writes:

We all love our houses. There is a beautiful emotional attachment to the place where we raise our children, sleep every night, eat our meals and watch our grass grow. But, nobody I know owns their house outright and an awful lot of people I know paid too much for thier homes (compared to the current value) or borrowed against the equity when times were better.

So, an awful lot of people I know the long run...going to lose their homes. There is a good and a bad to this. The bad is the obvious: having to uproot and move, change schools, maybe have to fit into a smaller place. The good is that there won't be a house to sell (difficult to impossible these days) if a sudden job opportunity arises in, for example, Seattle or, in my case, Port Jefferson Station, New York.

I stayed on for a long time in South Florida, paying my mortgage, even though the value of my house had plummeted and even though I had stopped paying my second mortgage. I would like to share my thinking on why I did this. That is, why I paid my first mortgage payment even though I knew that, in the long run, I wasn't going to be able to keep my house.

I knew that if I stopped paying my mortgage, the mortgagee (the bank that owned the mortgage) would foreclose. But, I knew that I could defend the foreclosure and stay in the house without paying for six months? a year? two years? I knew people who had defended a foreclosure case against them and there house for longer than two years and during this time they didn't pay anything on their mortgage.

But, my mortgage payment (for the 1st mortgage) was $1,125 per month. I compared the $1,125 for what I would pay for rent in any decent house or apartment in the area I wanted to live. It surprised me, but even though there were empty houses on my block and dozens of empty houses within a few miles of where I lived, I couldn't find a rental for less than $1,000 per month.

I knew that as long as I paid the $1,125 my first mortgage wouldn't foreclose. The value of my house had dropped so much that I knew I would never be able to sell my house for enough money to pay off the mortgages. So, I decided that I would view the payment on the first mortgage as kind of a "rental" payment; that I would accept that I would never be able to sell the house; and I decided to continue to pay the first mortgage.

It certainly wasn't worth the cost and trouble of moving just to save that $125 per month....even if I factored in the cost of repairs to my house while I lived there (the landlord would be responsible for these costs with a rental) it still was worth some extra money to be able to stay.

I couldn't afford to pay the second mortgage (and, as I am going to explain, there really wasn't any reason to pay it), so I had to consider what the second mortgagee was going to do. I owed so much on the first mortgage that if the second mortgage foreclosed, that lender wouldn't get any money (the money from the foreclosure sale...even if it was the second mortage foreclosing would go first to pay the first mortage because it was the "senior lien"...and there would be nothing left for the second).

The second mortgagee would know that it would receive nothing in a foreclosure, so, it would be irrational for it to hire lawyers to foreclose. It was POSSIBLE that the second mortgagee would foreclose but, in view ofthe fact that it would cost it money for lawyer's fees and costs and that it would get nothing in return (unless its foreclosure scared me into paying), it seemed extremely UNLIKELY that the second mortgage would be a problem.

The second mortgagee could ignore that it had a mortgage and sue me on "the Note" (a "mortgage" is the document that when recorded with the Clerk of Court creates a security interest in your house to secure payment of a "Promissory Note"). I wasn't worried about their suing me on the Note. I had a lot of other unsecured debt (credit cards and hospital bills), so there was a long line of other creditors who also wanted to sue me.

I figured that I would go bankrupt and get rid of the credit card debt and the hospital bills and the obligation to pay that second mortgage Note. I would move out of the house when I was ready to move without fear (since I was paying the first mortgage) that the first mortgagee would file a foreclosure and force me out sooner than I wanted to go.

If my first mortgage payment had been much more than $1,125, I would have made a different decision: I would have stopped paying the first mortgage and defended their mortgage foreclosure once they filed the case. I might have tried to get a mortgage modification...but from what I have seen, modifications that make a substantial difference are few and far between.

Had I stopped paying the first mortgage and been served with foreclosure papers, I would have a clear conscience defending the foreclosure and staying in the house as long as I could. While it would be wrong to defend a lawsuit just for the purpose of delay, so many mortgage foreclosure lawsuits I have seen make questionable claims; are legally sloppy; and ignore the basic requirements of good lawyering.

I do not mean to criticize the lawyers who prosecute these claims. They are probably overwhelmed by the number of foreclosures they must deal with. But I do believe that it is the obligation of any lawyer defending a foreclosure complaint to make sure that the foreclosing mortgagee does things the right way. And, if it takes some time....6 months? 12 months? 2 years? for them to get it right? Then it is incumbent on the homeowner to stay in the house and keep the air conditioner on so mold doesn't grow and keep vandals out and take care of the house so that when the foreclosing creditor gets the house back it is a decent house and not a house left in shambles.

Editor's Note: Ms. Rabinowitz reports that she will now be heading off the the beach to work on her tan. She stopped making her first mortgage payments as soon as she moved and she is now trying to figure out the bankruptcy law as it pertains to New York so she can go ahead and file.

Editor's Note: Your situation may be totally different from Ms. Rabinowitz's. You may have lots of assets creditors could seize. You may have a high income subject to garnishment. You may not qualify to file any kind of bankruptcy at all. Go see a lawyer....bring him/her a cup of coffee and a bagel (toasted, poppy seed, cream cheese).
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Saturday, June 5, 2010, 12:54 AM
Posted by Administrator
This morning, I hiked up North a few miles from my cabin to the exact spot where Wyoming meets up with the Southern edge of Alberta, Canada. Marking this part of the border is a small stream and, a few hunred yards upstream, a family of beavers was building a dam. As I watched their damming, I thought to myself "Just what IS the cost of good credit?"

This is what I came up with........


Paying ...on time, every time...keeps your credit good. Paying late or not at all craps up your credit. Certainly, if you can make your payments with reasonable ease, you should.

But, if you can't........... Well, here is an example:

You owe $20,000 in credit cards and, on average, you pay 15% interest. The yearly cost of good credit is $20,000 X 15%=$3,000. That is about $250 per month. $250 per month could buy you a few nice meals at a good restaurant; a $500 airplane ride to San Francisco (6 times a year); $250 worth of clothes and toys for the kids every month; two gigantic TVs.

Good credit is a great thing to have (okay, I'm getting carried away...good credit is a good thing to have----your own jet plane; a beach house in Hawaii; a starring role in a hit TV show---these are things that would be GREAT to have).

Frequently, the only bad thing about filing bankruptcy is that it is bad for your credit for a few years (not 10 years----a bankruptcy can be reported for 10 years but, typically, if you have decent income you will get credit in a few years or sooner).

I am not saying that you should file bankruptcy (heck, I don't even know who you are) or that you even could file bankruptcy. (Maybe you should just not pay and try to make a deal with your creditors a few months..or years from now. I don't know.) Really, THIS IS THE INTERNET...DON'T BELIEVE ANYTHING YOU READ HERE OR ANYWHERE ELSE ON THE INTERNET.

On the other hand, if you are having trouble making payments...your kids come first...or your wife...or your mother. Credit card companies come last. They will survive without you.

So, if you can't sleep at night, see a lawyer.

Or see 5 lawyers and take a weighted average of what they all say. (Note: I am kidding about this. Note: I am serious about a starring role in a hit TV show being a great thing to have---call me if you can help.)

I'm hiking back now to watch the beavers.

Editor's Note: Bob Smith is a retired South Florida lawyer who writes for the blog from his cabin in Northern Wyoming. Bob can be reached at

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Tuesday, May 11, 2010, 02:58 PM
Posted by Administrator
As I sat on my back porch this morning shooting BBs at an ant hill that popped up the moment the snow melted, I thought to myself: "Those bunch of ants sure seem to have a lot more on the ball then any similar size group of lawyers I've ever seen." So, I thought "Why am I shooting at 'em."

I stopped shooting, came inside, and began to write this....SOME RULES FOR SUCCESSFUL NEGOTIATION.

I remember a lawyer I had a case with a few years back. He was younger than me. A lot younger.

Anyway, we had to file this long form called a "Pretrial Stipulation" at least 10 days before "Calendar Call" (whatever that is). We were running late. I knew from my previous vast experience on account of being older than dirt that being late wouldn't matter as long as we got it done. I tried to bet the other lawyer 50 bucks that at least 3/4 of the lawyers who showed up at Calendar Call wouldn't have their's done. He wouldn't bet.

At Calendar Call it turned out that we were the only ones who had their Stipulation done. The other lawyer was unimpressed when I pointed this out to him. "But the rule says you have to do it", he said. "But, there are rules." "But, everyone should follow the rules."

Even the word "rules" gives me a headache. So, when I offer up SOME RULES FOR SUCCESSFUL NEGOTIATION, I don't really mean "rules"...I mean stuff, things, anecdotes, funny stories, cartoon characters. I don't really mean that there are rules.

a) Negotiations are a give and take. Don't give if you aren't given the opportunity to take.
b) Don't bargain against yourself. If you make an offer and get a counteroffer that is unreasonably low then it doesn't amount to a counteroffer at all. Refuse to make another offer until the other side shows they are taking your offer seriously.
c) Whoever talks first loses. In face to face negotiations, when you ask for a deal or make an offer: SHUT UP. Silence puts pressure on the other side. Silence makes people uncomfortable but YOU DON'T CARE. If you talk before the other side accepts or rejects your offer, you take the pressure off. ...and, right before you opened your yap....they were about to say "yes".
d) Don't be led by the nose. You be in control of the pace and mechanics of the negotiation. For example, if you are at a mediation, tell the mediator you don't want to sit across from the other want to be in another room. Don't be afraid to get up and head for the door. People will refuse to move away from silly positions if they are being watched. They will feel much more flexible if you aren't watching.
e) Make the other side like you (this is not easy for me but it might work great for you). If they like you, they will want to give you what you want,.
f) Every major agreement/sale/deal involves a moment of insanity. The insanity is why you will have buyer's remorse the next day. Think about it.
g) The most successfull negotiations take all day...maybe two. People are most likely to agree when their blood sugar is lowest; when they really want to leave and go home; when they have been negotiating so long that they have lost the will to live.
h) Don't be afraid to leave. You don't really care if you piss off the mediator? Do you? And the other side....they got you into this mess to begin with. There is nothing wrong in not agreeing.

But, you don't want to give them what they want (except to the extent necessary to move on with your life). You want them to do everything they can to wrap things up. And, all they have to do is agree with you. And, you can bring them to that moment of insanity when they will make the deal.

And the next day........for them: buyer's remorse.

OK....probably buyer's remorse for you, too.
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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 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.


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.


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.


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.


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.


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."

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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 ( you might 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?) 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........


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."
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THE SILLY 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.
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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 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 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.
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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 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.


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, who really knew who was driving the car?

I certainly didn't.
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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:

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

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


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 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.)


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:

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


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:

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


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Monday, March 8, 2010, 04:43 PM
Posted by Administrator
By Bob 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.

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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 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.


+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.............................

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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, I will call her "Idel".

Idel had been a bank teller in India. According to her...and I've got no reason to doubt 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 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" 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) 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.
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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 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 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.

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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 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, 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 " 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.
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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 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. 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 the 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 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.
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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 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 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 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.

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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:


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 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 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 someone 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 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 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.
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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 three major sevice is on the Sales Dept.
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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 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.
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Sunday, June 21, 2009, 06:01 PM
Posted by Administrator
I believe I have previously written about the third party bears repeating. The concept of the third party compliment is courtesy of 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 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, 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.
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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 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) 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 least the lawyer will get reported to the Florida Bar and (should) have his or her ticket pulled.

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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" 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.

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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 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 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.
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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" 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.

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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 trial, no risk, just ask and you get it. But, usually...almost 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 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.

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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?

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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 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 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 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.
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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 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.

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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.
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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 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 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.)

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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.

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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 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?" 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.

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