Remember yesterday?  When I posted about the 2 different outcomes for a criminal trial?  The only difference was paid counsel or a public defender.  Well here’s a very well-respected legal “pundit” who read the opinion.  http://www.thedailybeast.com/articles/2013/10/28/the-kennedy-court-stunner-that-shouldn-t-have-been.html

Bottom line:  The judge would have employed a different set of tactics and strategic decisions than Sherman. He simply thought Sherman’s approach was wrong.

NUTS.  That’s not the grounds for reversal.  You have to show a) the lawyer screwed up big time and b) that the big-time screwup affected whether or not you were found guilty.  Do you know how hard that is to do?  Apparently it is incredibly hard to do when it’s a public defender. And incredibly easy to do when you have a lot of money.

Amazing that this happens.  I always think that, when I’m representing someone and they know I hold the keys to whatever they want, that they think I’m going to work harder if they call me names and threaten me.  Nuts!  I’m going to quit, withdraw and get out.  Then what do I do?  Well,

• Save everything for evidence;
• Do a threat assessment, including a background check, weapons check, alcohol and drug check;

o   Your client’s past behavior may give you an idea of the likelihood of him

carrying through on any threats.

§  Does he have any arrests?

§  If so, are they for violent acts?

§  Aside from inquiring with the police, is there any otherway you can search for past acts? Can you talk to the client’s neighbors or coworkers to see if he’s acted out violently before?

§  Has he been committed to a mental institution before for being a danger to himself or

others?

o   Did he lose something in his case (custody, alimony, jail) and blame you for it?

o   Does he think you abandoned him or poo-pooed his ideas on the case?

o   Does he know where you live?

o   Does he know what car is yours?

o   Has he been in your office and seen pictures of your wife and kids?

• How is this client vulnerable?

o   Does he have a life where the threats    he’s made — if discovered — could be embarrassing for him?

o   Does he really value his credit so that a judgment-lien would get his attention?

o   Does he have a job he can’t take time off from?

o   Is he on probation/parole?

o   Does he really value visitation with his kids?

o   Obviously, don’t do anything illegal, but everyone is vulnerable somehow and will respond if squeezed on

those points.

• Find out as much as you can about him, including

o   where he works,

o   what car he drives,

o   what clothing he tends to favor (e.g. a NY Knicks jacket he wears a lot, etc) so that you can keep an

eye out for anyone who happens to be following you

• Maybe tell the cops depending.
• O and check my 101 personal and Business protection tip sheets at my website, www.businessbrawls.com

Sometimes I get a client who calls or emails several times a day about whatever they are anxious about.  But there is a difference between stuff I can do something about when I get to it, stuff I should do something about right now, and stuff I don’t need to do. There is also stuff that I cannot fix.  (After all, I can’t fix either stupid or crazy.) So, what guidelines are there for you, the client:

First and foremost, I am a lawyer.  I am your advocate and the person who stands between you and the entire court system.  I am not a therapist, I am not your best friend who can listen to you for hours, and I am not able to miraculously make your life back into what it was before the other side screwed you to the wall.   I also cost money and I charge by the hour.  I have to in order to be able to make a living to feed my own family.  So, I need to give you some ground rules so that we can keep your costs down and so that you can use me most effectively.

First, what is an emergency?  An emergency is having access to your bank shut down; blood or hospital visit; missing or disappeared witness, police/FBI involvement/visit.  If it is not one of these things it is unlikely to be so critical I have to short another client to deal with this crises.

Second, think before you call or email.  Make your points using as few words as possible.  Take time to re-write the emails until you get them right.  If I don’t understand I’ll ask. Promise.  But this will save you time and therefore money.  Besides, judges like short, to the point answers  so you might as well start practicing.

Third, if I did not cause the problem, if I cannot cure the problem, or if I cannot control the problem, there is nothing I can do about it.

Fourth, once is enough. 1 call and/or 1 email is all you need.  You will get my attention but I do have other clients.  You cannot afford to be my only client—no one can.    E-mail is usually the best way to send me a message.  E-mail is often also the best way for you to practice being concise and to the point.  Someone will respond to your e-mail within 24 hours.  It may only be a quick note that says I got it and will respond in more detail later, but I will respond.  If I send you such a note, it means that I am hip deep in another case that I need to concentrate on and the problem is not one that I can solve immediately.  If I have not responded in one business day, please re-send the e-mail, because they do sometimes get lost in the Net.

Finally, I’m a trial lawyer.  That means I’m in court a lot. So a little patience is absolutely required.

I mean really pissed off. Why am I pissed off? I’ll tell you why I’m pissed off: Slate magazine ran an article by Emily Yoffe discussing overindulgence in alcohol and rape. (The Original article, The Rebuttal by Yoffe and The Response to the Rebuttal. )

Apparently the conventional wisdom is that telling women (and girls) that getting drunk is leaving yourself vulnerable to being raped is a BAD THING because it is BLAMING THE VICTIM. Instead, women (and girls) should NOT be told that drinking too much makes you vulnerable to rape because Men should JUST STOP RAPING. What a total bunch of crap. Yes Amanda Hess I’m talking to you. As a father of 2 wonderful young women. As a man. As a man who deals with showing people how to protect themselves from predators of all types—including rapists.

If this was a different crime—like, say, mugging, we would be telling everyone that if you get blasted, or even buzzed, or tipsy, and you are out late at night you are a prime target to get mugged. Rape is a crime, a vicious violent crime. But everyone, male and female, is vulnerable to crime when they are out of control drunk, blasted etc. There’s a reason why the old saw used to be “Candy is Dandy but Liquor is Quicker.” God in Heaven Amanda Hess and you other trolls, stop setting these women up for rape! At least until you change human nature give these girls the information needed to protect themselves in the real world and encourage them to do so. That’s not blaming the victim, that’s showing people how to take responsibility for themselves and protect themselves.

Oh, and by the way, those of you who will then jump to claiming that I want all women dressed in long robes or sackcloth, you are jumping to far and your jumps will carry you over the edge. Take responsibility for yourselves, protect yourselves, be yourselves. One of those responsibilities is to be able to defend yourself if you happen to run into a predator and you cannot do that if you are drunk. God in Heaven are you adults or do you need men to protect you? I hope the answer is that you are adults who will protect yourselves. That’s what my daughters have been trained to do—since they were 18 months old.

Emily Yoffe, I salute you for trying to tell your daughter the truth and helping her become an independent adult.

Here’s a recipe for disaster:

I.    Lawyer gets a call from “X” who is not the potential client.

II.   “X” says he represents the potential client.

III.  “X” says PC is dying, blind and in the hospital.

IV.   “X” says PC has no will or other estate planning mechanism.

V.    “X” takes intake forms and goes off to get information from PC and lawyer says that after forms are completed she will visit PC to do rest.

VI.   “X” returns w/ incomplete form and tells lawyer PC wants to talk to lawyer confidentially at hospital.

VII.  Lawyer says OK but “confidential” means “X” cannot be there.

VIII. Lawyer gets call from hospital that PC urgently wants to talk to lawyer. When lawyer calls PC, lawyer is told that PC does not trust “X” and that “X” was not authorized.

IX.   PC tells lawyer that “X” knows what is going on and lawyer should talk to “X” but PC does not trust “X” so “A” & “B” must also be part of the discussions.

X.    “A” & “B” don’t want to get involved because of “X”s involvement. They don’t trust “X” and believe he is trying to take advantage of PC.

XI.   PC has 2 children who are not interested.

If any part of this sounds like your family, you are very likely to be confronting estate litigation. The smartest thing you can do is call a family meeting and settle things in advance.  If not, only the lawyers are going to win.

The internet is good.  It’s full of useful information.  Sadly, it’s also full of wrong information.  Or information which is correct for someplace but not for D.C., MD or VA where I practice.  I have some very sophisticated clients who love to help.  But I’ve had to explain that it’s not that Google has NO authority, it’s simply LOW on the authority totem pole.  I have explained to one (very helpful, in fact) client that the items he finds may prove to be helpful, but that in the end, they may cost him money because I must review them, verify them, and then check them against my “real” authorities.

I generally tell my clients who want to be helpful to only send me references on government web sites (EEOC, DOL, etc.) and articles that made specific references to case names, so I’d have no problem checking them out.  (This ruled out blogs offering general discussion and the like.)  Just keep in mind that you are paying me to be sure and the information on the internet is free—you get what you pay for.

There was a recent controversy on a website I visit regularly about whether or not the attorney who prepared the will has to be there when it is signed.  Generally we agreed:  the lawyer does not have to be there but it’s a darn good idea to have her there. Why?  Because in many states (Florida is a good example as is Virginia) there are specific things which must be done or the will may be invalid.  If the attorney who prepared the will is there, you know it will be done right. So why not do it that way?  Apparently some people are penny-wise and pound-foolish.  They want to save a little money but are risking that all their plans go for naught and the State determines who gets what and how much tax they have to pay.  Wouldn’t you rather have your decisions implemented?  Or would you rather take your chances?

Since we break wills and fight over inheritances for our clients, guess which one I like?

Actually, it’s true. Eyewitnesses are regularly wrong.  In fact, eyewitness testimony is the most often cited reason for all the wrong convictions which are later reversed by DNA tests.  If you are interested in why this should be, check the web page on the subject (more precisely the links on the web page) by Gary Wells, a psychologist who’s done much of the original research on the subject. It’s at http://www.psychology.iastate.edu/~glwells//

Apparently we are much more suggestible than originally believed.

Will a corporation actually protect your assets?  Maybe yes, maybe no.  But it’s not as simple as Legal Zoom would have you think.  Why is that?  First, if a company is involved, a lot of people will expect someone to personally guarantee the contract.  So that protection is out the window.  Furthermore, in small and mid-size businesses, the owner’s going to be intimately involved in running it; making business decisions, maybe even doing the work themselves. If you or someone you hire commits a tort, they’re coming after you individually; either outright negligence for your own act, or negligent hiring/retention/supervision/entrustment for the bad act of an employee or agent.  Another lawyer I know uses the example of the guy who had drywall company incorporated.  As my friend tells the story “the owner went out and drank his lunch, gets in the company truck, and manages to schmear a guy on a golf cart all over the road.  Of course they’re suing him, individually, he’s behind the fricking wheel driving drunk, I don’t care that it was “company” truck and “company” business.”  Bottom line:  whether you incorporate, create an LLC or whatever, get insurance.  If something goes wrong you will need it.

Now I don’t do wills, trusts or estates.  I litigate the consequences of a bad set of decisions when wills are written, trusts are created and then people die.  But this is important:  First, you’re not paying just for the document.  You are paying for the lawyer to know what kind of document you need and then to supervise the execution so it gets done right.  It’s absolutely amazing how easy it is to screw up the execution of the will.  How many witnesses?  Must they be independent witnesses or not?  Must they see you sign the will?  Must the witnesses all sign at the same time?  Must their signatures be notarized?  These and many other questions will be raised if there is a will contest.  And there will be a will contest if the heirs think the will or trust is unfair.