Tuesday, October 31, 2006

You're suing for how much????!!!!

People often get excited about the amount asked for in a lawsuit. In our recent suit against the Rensselaer District Attorney we asked for $52,000,000 (52 million dollars). This reminds me of when Dr. Evil threatened to destroy the world unless world leaders gave him ONE MILLION DOLLARS (which he quickly corrected after being prompted).

Some people have told me that $52 million is too high. This misses the legal meaning of the number.

It's known as an ad damnum clause (and no, that does not mean that all lawyers are damned). The amount stated in an ad damnum clause has almost no meaning in a lawsuit. The jury is not told how much is stated there.

It does have one important effect. It serves as a cap. If a jury awards more than the amount you put in your ad damnum clause, you are limited to your ad damnum clause instead of getting what the jury awarded. And you also get hit with a malpractice suit from your client because you didn't ask for enough money. Unless you make a motion to amend your ad damnum clause immediately, which will usually be granted, so even then it doesn't matter so much.

What this means is that the amount one sues for is not what you expect to get. The number is chosen to be so high that it's extremely unlikely a jury will go higher.

In most cases I don't even state a number. It's not required. Well, not unless the other side demands that you put a number down, in which case I'd put $10 billion just to show them. :-)

However, it is required in federal cases, particularly for "diversity jurisdiction" where the amount in controversy has to exceed $75,000 (last time I checked).

So next time you hear that there's a lawsuit for 97 gajillion dollars, please recognize that it could be 2 gajillion or 134 ungabungajillion and it really just doesn't matter a whole lot. The jury decides what the case is worth, not the lawyers.

Friday, October 27, 2006


Recent events prompted me to reread the standards for extradition. It has been suggested by some that the District Attorney's role in such matters is limited.

To clarify on this point, below are excerpts from the text of Section 570.54 of New York's Criminal Procedure Law. I've added boldface for emphasis.

1. When the return to this state of a person charged with crime in this state is required, the district attorney of the county in which the offense was committed ... shall present to the governor his written application ... [stating] the name of the person so charged, the crime charged against him, the approximate time, place, and circumstances of its commission, ... and certifying that, in the opinion of the said district attorney ... the ends of justice require the arrest and return of the accused to this state for trial ....

One would think that in order to state the circumstances and certify the opinion, the district attorney might need to read the file.

Sunday, October 22, 2006

Moments of stress

It's not all fun, games, and dancing in the fields.

I'm starting a DWI trial tomorrow - should be a short one, but still that gets stressful.

A few days ago I was contacted by a prospective zoning client. I was retained on Saturday (yesterday as I write) and upon review decided we need to act right away to get papers filed to seek a temporary restraining order. But I'm on trial Monday so I've asked one of my of-counsel to do all the running around that's required. I spent several hours today putting together the paperwork, and writing extremely detailed instructions because my other of-counsel, who is more experienced with such things, has to go out of town Monday.

While all this is going on, we have a new paralegal and we haven't assembled her desk yet. And we've got a whole bunch of other stuff going on. I'd really like to get to the point where the staff does most of the legal work and I run the office and cover the gaps. But it's going to take time to get there.

And of course I'm doing this silly running for Congress thing while I'm at it, and then there's that family that I'm supposed to spend time with.

Sooner or later this should all straighten out, right?

Saturday, October 14, 2006

Attorney websites and ethics

Back in July I did a post about the proposed rules for Attorney Advertising and how they affect the web. I did another post about it these ethical issues in attorney advertising in June.

So I was reading an e-mail today and noticed a sponsored link for New Jersey Traffic Tickets - the website is www -dot- NewJerseyTrafficTickets -dot- us. I use the -dot- instead of . to prevent them from getting an inbound link from this blog which might help their site's ranking. While perusing their site I ended up on another one of their sites, newyorktraffictickets -dot- us. I still haven't figured out how I got to the second site.

Anyway, these sites present ethical issues that should be dealt with regardless of the new rules. For example, the sites do not identify the names of the lawyers or law firms behind them. The sites give an address in Woodbridge NJ, but in a search I was unable to find any law firm in the listed suite (there are 2 or 3 firms in the building, but apparently not in that suite. They claim to have a team of 7 lawyers. Are all 7 lawyers admitted in both New York and New Jersey?

The page on New York DWI cases is troubling. First, they claim that: "Most criminal lawyers charge between $5000 to $10000 to defend you in court for an DUI/DWI case." I don't know how they know that. I charge $1000 up front for a first DWI offense if we're making a deal for you. I think I'm a little more expensive than most lawyers around here. The best lawyers tend to charge a little more and also tend to deliver better service. I'm told that one lawyer in the area charges $7500 up front even if it's just to make the deal. Of course they claim to have "renowned experts" though they don't name them. I would think if you were trying to sell yourself and you had renowned experts on your team, you'd name them since their renowned expert status should be demonstrable and persuasive to prospective clients.

Next they assert: "In addition to these charges, attorneys add on hundreds, or even thousands of dollars in miscellaneous (hidden) charges including postage, long distance, administrative, fax, consultation, secretarial and many more ridiculous charges. We believe this is unfair and even unethical to clients, which is why we are fully up front with all our clients."

I don't add on charges like this. I doubt many other attorneys do. Where do they get this from? Here they are disparaging other lawyers with baseless accusations, accusing them of unfair and unethical practices. I'm pretty sure that's unethical under the existing rules.

They then claim that they are able to keep their fees so low because they have such a large volume of cases. Earlier on the same page they claim that they're better than other lawyers because they have a low caseload, and that other lawyers won't do as good of a job because the other lawyers have too many cases. Hmm.

They also claim that they only accept DUI/DWI cases. The site titles include the term "traffic tickets" and the menu includes traffic tickets, speeding tickets, reckless driving, no insurance, and suspended license. I understand these fields are related, but they are not DUI/DWI cases.

They also describe how the law works, and what they do for their clients. This may be the most troubling section of all. First they refer to DWIs and DUIs as "major criminal offenses" in New York. The term DUI isn't really even a New York term. DWAI, the lowest level DWI offense, isn't even a crime. It's a violation. A first-time DWI charge is a misdemeanor, not even a felony and cannot be considered a "major" criminal offense even though it is a crime. In most of my cases I have been able to get this reduced to the DWAI violation. There are significant consequences, but jail time is quite rare.

They then say that there are no plea bargains in New York on DWI cases. This is mostly false. Even in situations where the prosecutor is not willing to reduce the charge to a lower offense, plea bargains still exist and typically reduce the consequences, such as avoiding jail time or probation, or at least lower fines.

According to a "whois" check, the site is owned by Peter Kim, 130 Church Street, Suite 280, New York, NY 10007. The address is a Copy Center, so the Suite is actually just a mailbox. I can't tell if Mr. Kim is a lawyer or not. There are two lawyers named Peter Kim in New York, but neither is listed at this address. A search on the e-mail address from the whois suggests that the relevant Mr. Kim actually lives in Toronto and works for or owns a company called Internet Solutions Network: "Internet Solutions Network is an Internet Marketing Company that specializes in meeting the online needs of corporations and businesses by implementing profitable Internet marketing strategies."

Mr. Kim also apparently owns a toronto traffic ticket website and may have another address at 10 Yonge Street in Toronto, but that's probably just another box.

I strongly suspect these sites violate the existing ethical rules in New York, New Jersey and maybe even Ontario. But they're still up on the web. It doesn't matter what rules New York chooses if the rules are not going to be enforced. And this points to another problem. If Mr. Kim is not a lawyer in New York, then he cannot be regulated by the New York courts. If New York State actually cracks down on lawyer websites with the new rules, then consumers searching the web will be stuck with people like Mr. Kim as their leading sources of information about law.

Tuesday, October 03, 2006

Grand Jury and the "No Bill" or "No True Bill"

Some time ago I did a post about a specific case I'm handling. This is a case where I was very upset by the behavior of the prosecutors.

I have very good news on this case. It was submitted to Grand Jury in the last couple of weeks. The Grand Jury returned what's known as a "No Bill" or "No True Bill". For those more interested in what that means in detail, I found a good article about Grand Jury and the No Bill.

That means the Grand Jury found no reasonable cause to believe my client committed the crime charged. As most people know, the standard for a "trial jury" is "beyond a reasonable doubt". The prosecution must prove that the defendant did commit the crime charged and must do so to such an extent that the jury has no reasonable doubt. Also, the prosecutor needs a unanimous verdict. The standard for a Grand Jury is much lower -- reasonable cause to believe is an extremely low standard, even lower than the "more likely than not" standard in a civil case. And the prosecutor doesn't need a unanimous Grand Jury -- only 12 out of 23 have to find reasonable cause.

Essentially then, a "No Bill" is a declaration of the defendant's innocence. If you haven't checked the post from before, this client spent 29 days in jail unjustly. His 5-year-old and 11-year-old daughter didn't see their father for 29 days. It's an outrage, and there will be more to come of this case.