Sunday, January 30, 2011

FAQ for Lawyers: Questions Lawyers Should Ask

Usually an FAQ (frequently asked questions) has responses to questions regular people ask. Our law firm website has faqs for speeding tickets, DUI, personal injury and criminal law.

But today I'm writing an FAQ from a different angle. These are questions I frequently ask people who call our law firm. From a law practice management perspective, I find these questions, and the answers they prompt, helpful.

Are you thinking of hiring a lawyer to help with that?

This is the most important question I ask, from a law practice management perspective. We get many calls from people who are not interested in hiring a lawyer. From a business perspective, those calls are a waste of time for us.

There are a few different ways people respond to this question:

Of course. That's why I called you.

This is obviously my favorite answer. Now we can get right into the meat of what the problem is, what we do for clients in cases like this, how much it costs, and why we might or might not be the right law firm for this person.

No, I was trying to reach ....

We get this a lot. The caller is actually trying to reach someone else, like a public defender, a prosecutor, or a court. Asking the question early in the call saves us both a lot of time.

I just have a question.

This is often a call for free advice. We are not a free advice line. That's an awfully difficult way to make a living. It also takes time away from us doing work for the people who paid us.

The answer dodges the question, so I respond in a way that redirects back to the important point: Does your question relate to whether you might hire a lawyer?

I do appreciate that the legal system is complex and that regular people (i.e. non-lawyers) have a lot of questions. Unfortunately, as someone who runs a business, I don't have time to answer all such questions. It's not just the one person who's asking a question at this moment - on a bad day we get ten calls like this. I choose to help the people who pay me for my time.

One of my favorites is when the caller offers to pay me to sit down with them for an hour and explain to them how to do it themselves, typically on a speeding ticket. Apparently my three years of law school and 17 years of experience can be explained in one hour.

Even on a speeding ticket, there is no simple recipe for what to do. There are too many things that can happen, especially if you're going to do a trial.

We charge $X to handle a case like that. Is that a dealbreaker?

Some callers are interested in hiring the cheapest lawyer they can find. That's not us. A good example is callers from Florida and Texas on speeding tickets. Lawyers there handle tickets for very low fees, typically less than $100 and I've heard them go as low as $50. Our lowest fee for a speeding ticket is $500. For felonies we charge a minimum of $5000 and often more, so people looking for a $500 felony lawyer or a $50 traffic lawyer don't need to waste their time (or mine).

Have you spoken to any other lawyers yet?

I should ask this one more often. Some callers already have a lawyer or have shopped their case to others. If other lawyers didn't want the case, they probably had a good reason. Be careful. And if they already have a lawyer and are having problems with that lawyer, the odds are they're going to have problems with you too.

Here are some questions specific to criminal cases:

Where were you born?

This is mainly a question in criminal cases, but may apply in other areas. It is critical because criminal cases can lead to immigration consequences. Asking their immigration status does not always get you a clear answer. But if they were born outside the US, you know you have to look into it.

A related question in traffic cases is where the client is licensed. The impact of a NY ticket (or DWI) on drivers from other states can be quite different from the impact on a NY driver and it's important to know that so that you do what's in the client's best interest.

What will the police say that you did?

In some cases the question is not what the police will say, but what the tickets say. I'll ask what the person is accused of and they will say something like this:
Well, they said I did X but what really happened was ...

I stop them. For a variety of reasons, I don't necessarily want the client's story first. People want to tell their story, but I'd like to know the accusations first and we can address any defenses or explanations after we've got that settled.

Is he/she out on bail?

This is both a business and legal question. On the business end, if they can't afford bail there's a good chance they can't afford me. Second, from a legal perspective I really need to talk to the client, so the business end of the conversation needs to address whether the caller wants to pay for a jail visit.

And some personal injury questions:

What did they do wrong?

One of the essential questions in a personal injury case is whether someone else is responsible. While there are strict liability cases (where someone is responsible regardless of whether they did something wrong), most of our cases require negligence. This comes up often in slip-and-fall cases. Someone will call after they fell somewhere - for some reason it's usually supermarket parking lots. If the store didn't do anything wrong, then let's not waste everyone's time and money.

Please describe your injuries.

The other side of a personal injury case is the injuries. In car accident cases the injuries have to rise to a certain level or the case is worth nothing. This is a detailed question and you have to ask all kinds of ways. Ask about how it feels. Ask what doctors they've seen and what they've told the patient and did for them. What scans or procedures have been done.

If their neck hurts and they haven't been to a doctor yet, it's probably not a case. In some places lawyers might sign the person up as a client and send them to a doctor who will diagnose something to create a case. Our friends at the personal injury practice of Dewey Cheatham and Howe have that covered. But that's not our style. If you spend time on the bad ones, you won't have enough time for the good ones.

Those are some questions we ask people frequently. We'd love to hear other questions lawyers like to ask callers, so please post comments!

Saturday, January 22, 2011

Real World Bar Exam Questions

As I continue studying for the Florida Bar Exam, I keep coming across questions that are very rare in the real world. Few lawyers will ever deal with a separation of powers question, for example.

Here are some questions that (maybe) should be on bar exams:

1. Ethics: A client walks into your office to pay you $100 he owes you. He slaps down a $100 bill on your desk, says "here's your money you greedy bastard," and walks out. As you pick up the money, you realize that it's actually two $100 bills stuck together. You should:

a. Rush out after the client and hand him the extra $100.
b. Mail the client a check for $100 along with a letter explaining the circumstances.
c. Share the bonus money with your partner.
d. Don't tell your partner and pocket the extra $100.

2. Ethics: You realize that you accidentally wrote a check from your escrow account that should have come from your regular firm checking account. You should:

a. Replace the money immediately, and report your error to any affected clients as well as the ethics committee.
b. Replace the money when you think your escrow account might be close to a zero balance to avoid having the error reported to the ethics committee.
c. Replace the money immediately and don't tell anyone.
d. Take the rest of the money out of your escrow account and retire to Panama.

3. Law Practice Management: A prospective client called. You listened for a few minutes and then explained your fee structure for the case, including that you require $1000 up front. She explains that she is having financial difficulty right now and asks if you do payment plans. You should:

a. Give her a discount and let her make small monthly payments.
b. Give her the phone number for legal aid.
c. Hang up the phone.
d. Tell her to go to hell and then hang up the phone.

4. Criminal: You are a prosecutor conducting a trial. The arresting officer just told one of the biggest whopping lies you've ever heard and you know he's lying. You should:

a. Report the lie to the judge and the defense attorney forthwith.
b. Wait a few minutes, then act like you've got an important phone call and request an adjournment. Come back in and offer the defense lawyer a great deal because you've got to get to work on a bigger case.
c. Ignore the lie and go forward as if it was the truth.
d. Prep the other officers with the same lie.

5. Litigation: The judge is giving you a really hard time about a case, pushing you to complete discovery in a timely manner and otherwise harassing you. You should:

a. Get everything done quickly so you don't piss off the judge any more.
b. Take your time because that judge will probably retire soon and you'll get more time from the next one.
c. Call opposing counsel and see if he'll collude with you on further delays.
d. Bring your hot paralegal to the next conference to distract the judge.

6. Traffic: You secured a great deal for your speeding ticket client, getting his 120 mph speed reduced to a parking ticket. Unfortunately the client hasn't paid the $100 fine and the judge is about to reopen the case. You have already tried to communicate with the client by phone, e-mail and mail twice each. You should:

a. Search public records to see if the client moved or to locate family in a concerted effort to advise the client of the situation.
b. Pay the fine to protect the client's interest and continue to make efforts to locate him.
c. Fake a death certificate for your client and mail it to the Court.
d. Close the file.

7. Appellate: A trial judge just reversed your $1 million verdict. The appellate court has extremely complicated rules about how to file and "perfect" your appeal. You should:

a. Hire one of the many companies that barraged your office with brochures and packets describing their appellate preparation services.
b. Hand the case off to an appellate attorney who is familiar with this particular appellate court.
c. Hire one of the many out-of-work law graduates who are waiting for their bar results to do the work, pay them little or nothing and tell them that the experience will be great on their resume (hey, it's probably true).
d. Slap something together and don't worry about all those requirements, because all courts decide cases on the merits rather than the quality of the papers.

8. Torts: You've been contacted by a prospective client who has what sounds like a great medical malpractice case. You are a real estate attorney and have never done a med-mal case before. You should:

a. Refer the case to an experienced malpractice attorney in exchange for 10% of the fee.
b. Refer the case to your friend the car accident lawyer in exchange for 33% of the fee.
c. Take the case, making sure your legal malpractice insurance is up-to-date, and study hard to get yourself up to speed on how to handle a case like this.
d. Take the case and negotiate with the med-mal insurer directly so you get the full 33% fee, which will be a lot more for you even if you only get half the settlement a competent lawyer would recover.

9. Divorce: Despite telling yourself you'd never take a divorce case, a client came along and paid you a $25,000 retainer up front at a time when you really needed the money. Two years have gone by. The retainer is now exhausted, the client hasn't paid anything in over a year and she now owes you $50,000. She calls your cell phone three times a day about stupid things like who is going to get the Vanilla Ice CD. You should:

a. Make a motion to the Court to be relieved as counsel due to non-payment of fees.
b. Retire to Panama, making sure to change your cell phone number.
c. Work out a settlement with the husband's attorney and force your client to sign off on it.
d. Offer to let the client pay off the money owed the old fashioned way.

10. Law Practice Management: You've just opened your own office and after two weeks you realize that people won't just call you out of the blue and that you have to drum up business. You have $50,000 to spend. You should:

a. Take out full-page color ads in each of the area Yellow Pages at a cost of $50K for the first year.
b. Spend $50K on a mix of broadcast and cable TV.
c. Spend $50K on the strong radio stations that target your ideal demographic audience.
d. Pay back $50K of your student loans and find a job doing something outside law.

Saturday, January 15, 2011

Insurance Companies: A Personal Injury Lawyer's Opinion

With 15 years of experience in personal injury cases, I have some strong opinions about insurance companies. Most of my experience has been with car accidents, so I'll focus on that but some of the companies also cover homeowners or other types of insurance. And my opinions will center on how the companies are toward their customers, not towards plaintiffs or plaintiff attorneys.

First of all, I worked for Allstate in the late 1990s. At the time I generally had a good feeling about the company. They were tough on weak plaintiff cases but generally fair on severe injuries. As an in-house lawyer, I worked closely with the claim reps and claims managers - the Allstate staff who investigated claims and made the decisions about whether to pay and if so how much. They had a lot of experience and knowledge and were just good people. I didn't always agree with them but they had reasons for their decisions.

Their work environment was in transition. In the good old days, they'd go out into the field, like to the scene of the accident. But when I got there Allstate was changing things on them, chaining them to their computers and reducing their ability to get their hands on the meat of the cases. This helped them handle a higher volume (thus saving money) but it reduced quality. It also made the job less pleasant and accelerated retirement. That further reduced quality by removing the best staff. Some of the newer reps were good, but still didn't have the same level of experience.

Allstate was, and is, facing pressure from the newer low-cost insurers like Geico and Progressive. On the other end was the longstanding competition from State Farm, which had better numbers in customer retention.

Allstate and State Farm are so large that they're under constant pressure to keep their existing customers and bring in new ones to replace the ones they lose, while keeping costs down. I think those pressures make it very difficult to provide the best service and be fair to their customers.

At the bottom of my list is Geico. In my experience they are too aggressive on cutting costs. I've seen them refuse to pay medical bills for their customers that obviously should be paid (and I've heard complaints from doctors about Progressive doing the same). One property damage claim stands out in my mind. Our client had Geico and was hit by a State Farm driver. Her car was totaled. Geico told her that her car was worth $5000. I checked with State Farm first, and they offered our client $6500. So maybe Geico saves 15% on the price, but they screwed our client for 30% when it came time to pay a claim.

I've also seen Geico refuse to pay plaintiff claims in a way that puts the Geico customer in jeopardy. When you cause an accident and the person is really hurt, your insurance company's job is to protect you. The worst example is the case we had where our client suffered an amputation after being hit by a Geico-insured driver. We asked for the $25K policy and they refused to pay - on an amputation! In the end we went to trial and the Geico customer faced a judgment of millions of dollars filed against him - when Geico had a chance to settle the case for $25K.

I never saw an amputation when I was at Allstate. They were smart enough to pay a claim like that before anyone had to sue.

It can make sense for an insurance company to refuse to pay a claim, or even for them to hold off on settling because they're investigating something. But when all the facts are in, it's time to settle. Even though I like State Farm, they failed in this one on that same case where they were good on the property damage. Their customer was clearly at fault and our client had to undergo two shoulder surgeries. And there we were, a week before trial and they still hadn't offered a penny. This wasted everyone's time and money, and put their customer in jeopardy.

During my time I've seen that some insurers are just better all around. Good examples are Travelers, Hartford, Nationwide, and Amica (our insurance company). These companies seem to work with their customers very well, and in particular they don't do frivolous denials. I remember when we chose Amica. I was reading insurance industry numbers that showed Amica's "complaint ratio" was dramatically lower than State Farm and Allstate. I can't say they're perfect, but we've been happy with them.

One of the underlying lessons is simple: You get what you pay for. If someone's advertising that their product or service is cheap, then it probably is. I'm not a cheap lawyer and I'm happy about it. We lose some potential clients who are looking for the cheapest lawyer they can find. We do the job right and provide good service. That's what I want to do for my clients, and that's what I want my insurance company to do for me.

One other thing - don't be cheap yourself. Make sure you have enough coverage. It's rare but I've seen cases where wealthy people didn't have enough insurance. That can dramatically change your financial circumstances and even drive you into bankruptcy. Getting $100K in coverage doesn't cost that much. And an umbrella policy (usually covering up to $1 million) isn't much more. If you're not sure, go through an agent. They'll help you make the right choice.

Tuesday, January 11, 2011

Marana Municipal Court, Jared Lee Loughner and Diversion

Reports indicate that Jared Loughner's case in Marana Municipal Court was resolved through a diversion program. There's no link on the Court's official website about diversion, but it is just northwest of Tucson, and the city of Tucson's site has more about their own diversion program: Tucson Diversion Program.

In my last post about Loughner, I mentioned a concern that drug court diversion programs here in New York focus on substance abuse and may fail to address larger mental health concerns. For the Tucson program at least, this might be true. From that site:

"Participants cited with substance abuse charges attend substance abuse counseling."

And reinforcing that:

"You will be evaluated for the need and type of counseling appropriate to your offense."

In the mental health community, counseling is chosen appropriate to your mental health needs. In the so-called criminal justice system, counseling is chosen appropriate to the offense.

How about this quote:

"Treatment or education to deter offenders from committing further criminal acts."

Since when is treatment or counseling designed to deter?

I also like this quote:

"The Prosecutor’s Office determines eligibility on a case-by-case basis."

Because prosecutors, you see, are the most qualified to determine who needs mental health treatment. Okay, sarcasm off.

I have to give credit to the New York State Legislature for our new Judicial Diversion statute (Article 216 of the CPL). They took that power away from prosecutors and required a mental health evaluation upon request from the defense. In New York, "Drug Court" is available only on the prosecutor's consent. But a judge can order diversion over the prosecutor's objection.

Hopefully, the fact that Loughner's diversion failed to address his obvious mental health problems will lead these programs, and our courts, to a broader focus.

Update: A writer on Huffington Post also mentioned diversion about Loughner and the Columbine shooters.

Sunday, January 09, 2011

Jared Loughner, Mental Health and the Criminal Justice System

I just read an article in the Arizona Daily Star about Jared Loughner, the Tucson shooter.

The article indicates that Loughner completed "diversion programs" after minor criminal charges. This is just another example of how our so-called criminal justice system fails to deal with mental health problems.

We have a relevant case pending right now. We applied for the new Judicial Diversion program for drug felonies in New York. The normal approach is that the Court orders an evaluation.

We like to go a step ahead of that, and apparently a step beyond. Before seeking diversion we have our client get a thorough mental health evaluation from a trusted professional. The psychologist we send people to is a respected professor. He does a complete evaluation and provides us with a detailed report, addressing the total mental health picture as well as the specific legal questions we ask him.

In our pending case, the Court did not accept our psychologist's report as sufficient and ordered an evaluation from the court's own staff. I have that evaluation. While I agree with its ultimate conclusion (that our client should be admitted to the diversion program), I find the overall quality of the report disturbing.

The evaluator is a social worker with far less education and training than a psychologist. He filled out a boilerplate questionnaire with very short handwritten answers - rarely full sentences and often one word. There was no discussion, no analysis of our client, his life, the incident that led to his arrest, etc.

Relevant to Jared Loughner, what stands out is that the court evaluation only addressed the substance use/abuse issues and did not address other mental health concerns. Our psychologist identified a number of other DSM-IV diagnostic codes, and the major concern was not substance abuse but rather a severe form of a fairly common mental health problem. According to our psychologist this is the underlying cause of most of our client's other problems (including the recently developed substance abuse, a collapse in school grades and family issues).

Did that happen with Loughner in Tucson? Did the diversion programs ignore other mental health problems and address only substance abuse? I'm not sure if we'll ever know, but I know it happens here.

Mental health problems are one of the biggest causes of crime. We see it a lot in our DWI cases and petit larceny (shoplifting) too. The criminal justice system should pay more attention to overall mental health problems. Let's hope the Jared Loughner story pushes in that direction.