Here’s an interesting question for the lawyers among us.  What if the Judge in your case goes off on her own path?  What if the Judge decides your case on totally surprising grounds that neither you nor the other side ever argued?  Is that appealable?  Is it a violation of some ethical obligation?  How to deal with it?

First, as I understand the judge’s ethical obligations, she is absolutely required to apply the cases and law as she knows it regardless of what the attorneys might argue (or don’t argue).  But (there’s always a but with lawyers) it is a good idea to ask the lawyers to supplement their arguments so she fully understands the facts and how those facts apply (or don’t apply) to the legal theory she is espousing.

Second, lawyers make mistakes.  We don’t like to admit it, but we do.  Sometimes lawyers just don’t find a key case.  This can happen for many reasons including the fact that a recent decision has just been published.  (That’s why, if you were wondering, my clients will see me doing last minute research just before a major hearing.  Once in a while it pays off.)

Third, just because the Judge goes off on her own without asking you to argue her theory does not mean that you will automatically win.  You will have to show that a) you didn’t get a chance to argue your point and b) that given the facts of the case, the Judge was wrong

When this happens, I get the chance to do on appeal what should have happened in front of the trial judge: show why I win under the Judge’s theory or, alternatively, why the Judge didn’t have enough facts to rule.  It’s not easy to fix this problem but, fortunately, it doesn’t happen too often.  Judges hate being reversed so they almost always will ask you to come back to brief and argue their own pet theories if you didn’t do it the first time.

It’s easy to know when to speak up in court.  Attorneys do it all the time.  We speak up to make objections, to make arguments that might win but might not, to build and preserve a record in case of appeal, to impress our clients and the other lawyers in the room.  We also speak up to make sure the judge knows that we are not a “potted plant” and will fight for out client.  These are all good reasons to speak out.

But sometimes the better role is to just shut up.  When is that?  Like so many things about the law, it depends.  It depends on who the judge is, on your reputation with that judge, on how the other side has behaved and many other factors that are hard to enunciate or describe.  Almost intuition.  But there are clearly some times for the lawyer to sit down and shut up.  Some of them are:

• when you have won;

• when your argument is merely frivolous;

• when whatever you say will just irritate the judge;

• when you have no good reason to object but are doing it just because the other side wants it;

• when it violates the unwritten rules of the court you practice in;

• when your argument is contradicted by settled law (unless you have a really good reason to ask the judge to overturn the settled law).

Normally the court will not hire its own expert. That’s for the 2 sides to do. But sometimes the court will do just that.  Then you get the report and it’s completely against your position.  O Dear.  Court’s tend to listen very hard to their own experts.  It’s very very hard to get a judge to ignore what his own people are telling him.  So, What to do?

I. Don’t attack the expert.  That makes the expert defensive and the judge (who picked the expert) will want to defend the expert.  This does not bode well for you or your client.

II. Treat the expert’s report as “incomplete.”  That is, what factors did the expert NOT consider?  Why not?  What do these missing factors have to do with the report’s conclusions?

III. What evidence do you have on the missing factors?  Do they help you?  How much?  Shouldn’t the expert have considered the missing evidence?  How would the missing evidence change the results?

With a little luck you can get the expert to admit that the new evidence on the factors not previously considered would change their conclusions towards what you want.

http://www.forbes.com/sites/amyanderson/2013/06/04/nothing-is-more-expensive-than-a-cheap-lawyer/

Anyone who watches a cop show on TV and certainly anyone who is reading this blog, knows that you DO NOT TALK TO THE POLICE.  You simply don’t.  Especially not without a lawyer there  to protect you in any criminal case.  But what about in a civil case?

First, be aware that you do not have an obvious 5^th amendment right not to incriminate yourself if you are being sued for money by another person or company.  You might, however, have a right not to testify if your testimony might open you up to criminal charges.  So it’s a little tricky and you should talk to a lawyer before testifying to be sure you aren’t opening yourself up to more trouble than you think.

Second, what happens if you DO invoke your 5^th Amendment right not to testify.  You don’t have to tell them why you don’t want to testify.  So what happens?  Generally, in a civil lawsuit the other side can read the question and your refusal to answer on 5^th Amendment grounds to the jury.  Then they ask to jury to keep this refusal in mind as they consider the evidence.  The result is, Yes, You Got It, the jury will think the worst of you.  Still, that may be better than admitting to a crime.

True life story:

I had a case many years ago where my client had been arrested for Murder One.  The Big Show.  But he also had been in a car accident case. So they wanted to take his deposition.  Have you guessed what the first question was yet?  “Tell me [John] where are we?” Me:  Object on 5^th Amendment grounds.  Her: “John, why are you in jail?”  Me: “Ditto!”  Her: “John are you going to answer my questions?” John: “I’m going to listen to my lawyer.”  Her: “John this is a civil case, you don’t have a 5^th Amendment right not to answer my questions.”  Me: “WHAT? [paraphrased] That’s absolutely and completely wrong!  This deposition is over!”  Her: “We’ll see what the Judge says.”  Me: “Darn right we will.”  Guess what?  I won.  Guess what else?  She tried to use this exchange in court.   Fortunately, since I had terminated the deposition, John had never answered any relevant questions and that helped a lot.

Most people, and many attorneys, don’t know that there is a growing “speciality” of appeals lawyers that only do appeals.  Particularly they only do appeals to the US Supreme Court or State Supreme Courts.  Sometimes, if the case is prestigious enough, they will even take the case pro bono (free).  But should the client take advantage of that?  Should I, the lawyer, suggest to the client that they should get a different attorney to handle the appeal?

Rule 1:  the client comes first.  So I have to put my own ego aside and consider what is best for the client.  Ultimately, it is the client’s decision and I have to cooperate with it.  And I have the obligation to properly inform the client of the pros and cons.

Rule 2:  If it were a purely legal issue, maybe I would refer it to a specialist who would let me work with them.  But maybe not too.  If it turned heavily on the facts, I would probably not refer it out.  I believe that only I know the facts and where they appear in the record.  Note please: I have never been all that impressed with biglaw specialists.  Everyone is a beginner in the beginning and Alan Gura, who argued Heller and the Chicago Second Amendment case is a small firm layer who appeared before the U.S. Supreme court for the first time in that case and won it. (full disclosure—I used to know him and we litigated a couple of cases together many years ago).  So were several others.

Rule 3:  If I did keep the case I would certainly hire a specialist to consult with me and advise me on proper procedures (they can be very esoteric) and in preparation.  Remember what I said about ego—I can’t afford one if I am going to win. So I will certainly get all the help the client can afford and then probably try to talk my friends into helping for free (or pizza and beer). Anything to do it better for the client.

Honesty is only one factor that controls whether or not I will take a client.  Some outrageous liars have made great clients and some dedicated truth-tellers have been really bad clients.  Lying to me is not a good sign but it’s not completely destructive either.  My bigger problem is with clients who don’t tell me things. They don’t lie, they just don’t keep me in the loop.

Part of a litigator’s job is to go after the facts which are likely to come out at trial.  This is what I’ve been known to tell clients:

• The judge doesn’t care what you think happened.
• The judge doesn’t care what they think happened.
• The judge doesn’t care what actually happened.
• The only thing the judge cares about is what he thinks happened and the only way the judge will decide what happened is by looking at the evidence I can show him at trial.

So what evidence do we have that I can show the judge?  What evidence to they have to show the judge?  How did that happen?  Strange stuff will happen on occasion and my job is to show that it did.

One thing I can do to uncover the evidence and the story is to ask the client to write down the story.  Give me the complete story from your point of view.  Don’t leave out anything.  I never know what I’ll need so give it all to me and if I get surprised by a missing fact or detail they are the ones who will have to pay  Once I have the full story from the client I can survey it and ask questions.   Only if I cannot reconcile things to I explain the ethical options and obligations to the court that I will face.

If you have fired an employee for cause and the ex-employee has filed for unemployment compensation, you will find that the process is fairly simple and most people can represent their own company.  But,

1. Know your state’s rules before you hire someone. In Virginia, unemployment comes from the last 30-day employer. Make your review process on day 29 or earlier so you won’t be on the hook.  Each state is different so check your rules and modify this principal carefully.

2. If you don’t have a written employee handbook, create one.  If you can’t point to written policies and procedures it is harder to show that they were violated.

3. Document problems in writing. Even though you prefer informality, don’t do it.  Create a process of formal reviews and, when there is a violation, formal write-ups.  That way you can show that you notified the employee of their errors and told them to shape up.

4. If you do fire someone, list each and every reason why.  Then if there is a hearing, discuss each and every reason.  You never know—what you think is the most important reason may not strike the hearing examiner as important and vice-versa.

Shot 16 times by officers: Innocent man files $20M suit

We, the lawyers and citizens, need to put a stop to this uncontrolled behavior by the police. In case you think this is unusual, see also Militarized police overreach: “Oh, God, I thought they were going to shoot me next”

I know the facts of Calvo’s case are correct.

Well, here’s another post about the Zimmerman trial for martial artists.

Question:  If Zimmerman had not had a weapon, would he have followed Martin?  Dunno.

Question:  If Zimmernan had not had a weapon, would he have gotten out of the truck? Dunno.

Question:  If Zimmernan had not had a weapon, what would he have done when he started losing the fight?  Dunno.

But Zimmerman did have a weapon. And he used it.

What’s the moral of the story?  Don’t let having a weapon induce you into doing something you wouldn’t do otherwise.  Weapons can give you a false sense of confidence.  The knowledge that you have a weapon can lead you to do things you wouldn’t do otherwise.  This is dumb beyond belief.  Having a weapon is to protect yourself, not to let you do things you wouldn’t otherwise do.

What would have happened if the prosecution had argued that, because Zimmerman was armed, he was unduly aggressive in following Martin and getting out of the truck?  And that that undue aggression, fueled by the weapon was what led to the confrontation and to the shooting?  Dunno again.

Martial artists beware.  Don’t let your knowledge of martial arts make you unduly aggressive.  And, if you start to win a fight, be sure that the other guy doesn’t panic and kill you because HE has a weapon and is unduly aggressive.