Thursday, June 30, 2005

Sex offender myth

I had a call today from someone who is considered a sex offender under New York law (and at least one other state). I had a client in a similar situation before.

The general public perception of a sex offender is someone who preys on children. The stereotype is a 40-year-old man who has sex with 8-year-old boys.

The problem is that state law casts a much wider net. In this case and in another I handled, the "sex offender" was an 18 or 19 year old male who was caught having sex with a 14 or 15 year-old girl. This does violate state law. The age of consent in NY is 17 (I think).

For starters it seems to me that this is not the place for criminal prosecution. I know many people don't like it, but the reality is that some teenagers, including some 14-year-old girls, are sexually adventurous. Probably not a good thing, but again, not what I consider a crime. If it's forcible rape, that's another thing entirely.

Anyway, we also have to deal with the Sex Offender Registration Act (SORA), under which "sex offenders" have to register with local authorities. In some states this is a life-long thing. The supposed purpose is to protect the community from these dangerous sex offenders. But an 18-year-old who has sex with a 14-year-old is not likely to be dangerous 10 years later.

I'm just ranting now and probably a little incoherent (we have a baby home so I'm not getting enough sleep), but I'll have to come back to this topic sometime down the road.

The ACLU has taken on some cases related to all of this. You have to search their site to find relevant articles, but it's something. There is also a very recent article from Missouri on the same general topic. There's also another good article in the Detroit News.

Balancing interesting and not-so-interesting work

One of the tough things about being a lawyer is some of the work is, well, boring. Or at least not terribly interesting.

I get a lot of speeding ticket cases. I feel good about the work I do for people, helping them get better deals and saving them time in handling things for them. But it's not fascinating work. It's mostly paperwork, or a trip to a local court where you shoot the breeze with fellow lawyers for an hour or so until you get to talk to the cop or prosecutor and get things resolved. It's not bad, but not exciting either.

I do personal injury cases as well. Those can be a little more interesting, and certainly you can make good money on them, but fundamentally they're not as exciting for me as they used to be. Trials are usually fun, but most cases get settled before then. Also, in many of these cases you do learn something about some relatively obscure legal issue. For example, I have an airline case. My client fell in the aisle. I started the case claiming the airline was negligent (for creating the slippery condition, failing to clean it up, and failing to warn my client). Turns out that negligence is not an issue. Under treaties, the airline is strictly liable for accidents, but there is a cap on damages of $75,000. This case pretty clearly qualifies as an accident under recent 2nd Circuit caselaw, so we're looking good. That was a bit of learning.

But every once in a while I get something that's really interesting. For some reason I really like criminal defense. I particularly like defending drug cases, as I have long felt the drug war is a disaster. But I occasionally get cases where my client is pretty clearly not guilty, and something smells about the way my client was charged. I had one a couple years ago and I have one now. Gets me going.

Also, not too long ago I had a different kind of case. Client was working in an area hospital, and was cut with an instrument that had been exposed to a patient's blood. Patient was unable to consent to a test for bloodborne disease, essentially unconscious, and dying. Family was agreeable, but did not have the paperwork to back up their authority. I got the job done and am quite pleased with myself. I really made a difference for this client, who no longer has to take a cocktail of preventive drugs that cause severe side effects. In the process I confronted some bureaucracy and succeeded by using my experience to choose a judge with common sense. And all of this was done with the proper anonymity to protect everyone involved (hence, the details here are deliberately vague and some details may have been changed). Not only was this interesting, but it was emotionally rewarding because I really feel I did good work for my client, and made a difference in their life.

Thursday, June 23, 2005

Speeding Tickets

I've gotten a few calls recently from people who discovered the consequences of pleading guilty to speeding tickets. They did not hire lawyers for help on them. Here's what a few of them have experienced:

1. One guy received a bill from DMV for $300 (or $100/year for 3 years) as a "driver assessment". This is the first time I've gotten this call, but I suspect it will become common. It's a new law that became effective for violations on or after 11/18/2004. It happens if you get 6 or more points on your record. The caller had pled to a speeding ticket of ~25 mph over the limit, which is 6 points. Note that for DWI cases it's $750, or $250/year for 3 years.

2. A woman came in with a speeding ticket for 89 in a 55. That's an 8-point violation, but I can usually get that reduced to 3 or 4 points, maybe better. Unfortunately, she had a previous speeding ticket for 96 in a 65, and she pled guilty to that one. So she already has 8 points. If she gets 3 more points, she will probably lose her license. We advised her to take defensive driving, which should take 4 points off her license. I'm hopeful, but not positive, that this will save her license for now - as long as she slows down.
We are also considering a writ of coram nobis to see if we can vacate the earlier conviction and then try to negotiate a deal on that one with fewer points. Coram nobis is a lot of work for the lawyer, and I charge $1000 to do it. It's generally only worth it for the client if their license is in genuine jeopardy, as in this case.
Also unfortunate, her current ticket is in the Town of Chatham, where the Judge is notorious among lawyers for being tough on plea bargains. A friend of mine handled it and it was resolved with a 4-point speed and a $505 fine and surcharge. The Judge made note of the prior speeding just a few months earlier in setting the high fine.

3. One guy called me about a new speeding ticket - 79 in a 65. The big problem is he pled to a recent ticket for something like 108 in a 65, which and paid a $700 fine. That doesn't make complete sense to me because he should have had his driving privileges revoked for such a high speed, though maybe that doesn't apply to out-of-state drivers.
In his case, a lawyer probably would have gotten his ticket down to a 4-pointer or better with a fine of $300 or so. He would have saved money just on the fine by paying the lawyer's fee.

I'm surprised more people don't hire lawyers for their speeding tickets. I'm busy enough, but I feel for the people when I hear their stories.

Saturday, June 18, 2005

Good Personal Injury Blog

Noticed a good personal injury blog from Atlanta, Georgia. In addition to the blog, it has a great list of other blogs.

Thursday, June 16, 2005

Personal Injury and Insurance Defense

I used to work for Allstate, in-house, as an Insurance Defense lawyer. That means Allstate paid me a salary to work in their office, but my clients were Allstate customers.

I noticed a Georgia personal injury blog that discussed the ethical issues for insurance defense lawyers in a couple of recent posts:
One and another.

I saw these pressures in my work. A good example is when the insurance company places a low or zero value on a case when the insurance defense lawyer thinks the case value may exceed the insurance coverage. At least in theory, if the verdict comes in higher than the coverage, the company only has to pay the amount of coverage, and the customer (the lawyer's client) is left to pay the rest. In practice I've never seen a client pay out of pocket in such circumstances, but that doesn't change the lawyer's obligation to protect his client's interests.

The lawyer's obligation there is to make his concerns clear and make whatever record is necessary to protect his client. If the verdict comes in high, the client now may have a claim against the insurance company for "bad faith". The insurance company, which is paying the lawyer's bill (for outside counsel) or his salary (for in-house), does not like it very much when the lawyer advocates for the client against the company. I was nearly fired twice for doing this, and it was a major reason why I left and why I do not intend to do insurance defense work in my practice. Also, they pay crappy for outside counsel.

One thing a lot of plaintiff's lawyers don't realize is that an in-house lawyer faces less pressure than outside counsel. First, it's very easy for them to fire outside counsel. They don't fire you on that case, but they simply stop sending you new cases. Outside counsel have no protection from employment law. As in-house counsel, if you're fired for advocating for your client, you probably have a good lawsuit against the company (tortious interference with the attorney-client relationship, etc.), and the accompanying newspaper articles would be so damaging to the company ("Insurance company fires honest lawyer") that they would probably pay a good severance package to avoid such coverage. Also, a few years experience as in-house insurance defense makes one very marketable, especially to plaintiff law firms who appreciate knowledge of the inside workings of a major insurance company.

Sunday, June 12, 2005

Cheap lawyers

A few nights ago I was in Colonie Town Court for a client's speeding ticket. There's a spot where all the defense lawyers wait for their turn to talk to the prosecutors. Three different people came up to us and asked if we had seen a particular lawyer. We hadn't. That lawyer shall remain nameless, but is one of those that might be called cheap lawyers.

As lawyers, we get calls from people with whatever problem. Some people are shopping for lawyers on price. One of their first questions is how much we charge. I don't get that as much because I list my fees on my website. But I still get people asking me to reduce my fee.

Those who are looking for cheap lawyers will usually find someone cheaper than me. But as the example above shows, you get what you pay for. I like to think that the service I provide justifies the extra expense. A person answers my phone. I am often available to answer calls, and when I'm not, I return phone calls promptly. I get things taken care of. And perhaps most important, I show up for Court when I'm supposed to be there. Nobody's perfect, but when you're working for less, you take a higher volume and you'll make more mistakes.

Tuesday, June 07, 2005

DWI in New York - Out--of-state drivers

I just handled another DWI case with an out-of-state driver. It's a dramatic difference. A New York driver faces so many consequences from getting a DWI charge. Most do not apply to out-of-state drivers.

A typical first DWI will get reduced to DWAI. The driver will pay a fine in the neighborhood of $500 or a bit less. They will have to attend a victim impact panel. They will generally have to participate in the Drinking Driver Program (DDP), which is a big hassle. They will have to pay $250 per year extra to DMV for their license. None of this applies to an out-of-state driver.

Also, an New York driver will generally get whacked on insurance. I'm not sure what the odds are, but I'd bet most out-of-state drivers don't get any impact on their insurance. Total cost when you're all done can be $5000 easily.

The one penalty that does apply is that your privilege to drive in New York State is suspended for 90 days. Same thing happens with a New York driver, but the NY driver does the DDP and gets a conditional license. If you don't drive much in New York State, there's no big deal about the 90-day suspension.

I should note that Quebec and Ontario drivers probably do face similar consequences to New York drivers if they get a DWI, because there is a special arrangement there.

Verizon - disputes and collection

Not too long ago I did a post on volume businesses. This morning I got a phone call that tweaked that funny bone.

I have a dispute running right now with Verizon about my Yellow Pages advertising bill. In one of the local books they misspelled my name in the ad, and listed the wrong phone number. I sent them a letter before publication telling them to stop, and they published it anyway. After getting billed I sent them a letter refusing to pay unless someone called to discuss my account with me. Verizon did not respond to either letter. I tried calling but you go through 8 layers of voice-jail and eventually get to a person who is in the wrong department.

I had a similar problem with Verizon Wireless maybe a year ago. I switched to Sprint PCS from Verizon Wireless. I expected to pay a termination fee of $170, along with my bill of about $130. They tried to sock me for a second termination fee because I had two lines. I refused to pay for the 2nd termination fee and offered to pay the $300. They refused. I documented the dispute by sending them letters.

Every once in a while I would get a call from some collection agency. I would refuse to pay, tell them to sue me, and most of all, tell them not to call me again. They would shift it to another collection agency, which would call me once and I'd do the same thing. Eventually I got a credit report for some other reason, and saw that Verizon had marked my account as a write-off. I still got a couple calls from collection agencies and told them I knew it was a write-off, and to try some other sucker. Bottom line - I ended up not even paying them the $300 I agreed that I owed them. Their volume business practices cost them $300.

Now my dispute with the yellow pages is about $600 total, and it goes up every month. I'd probably agree to pay half to resolve the dispute, but I can't get anyone on the phone. So today I get a call from a collection agency. Of course that person isn't in a position to negotiate for my future billing, so that call went nowhere. I see us going down the same path again. And if they do actually sue me, I'm ready for them.

Now just imagine if they bothered to have a person answer their phone, or at least have someone call me after I send them a letter. How much money would they save, and how much better their public image might be. Because I'm sure I'm not the only one. Their was a fairly big story locally a couple years ago when they left 8000 businesses out of the yellow pages by mistakes.

Reminds me of an old Saturday Night Live bit - We're Verizon - We Don't Have to Care. (It was Exxon in the SNL bit).

For some other attacks on Verizon, see:

2003 gripe about Verizon DSL
Garrett Murray's gripes

Monday, June 06, 2005

Supreme Court Marijuana Decision - So much for liberals and conservatives

The US Supreme Court recently made another decision on "medical marijuana" (PDF).

California legalized marijuana for medical use. Under federal law (the Controlled Substances Act, or CSA), marijuana remains illegal. The CSA was challenged as violating the Commerce Clause (and also the Necessary and Proper Clause). This is part of a very long dispute on the Court over how much power the federal government should have vis-a-vis the state governments. The states' rights side, usually conservative, argues for more power to the states. The liberal side tends to support more federal power.

So we have a supposedly liberal issue -- medical marijuana -- and its proponents arguing a conservative position -- that in the CSA the federal government is encroaching on states' rights.

The Court ruled 6-3 holding that the CSA does not violate the Commerce Clause -- effectively ruling against medical marijuana. What is most striking is who dissented: O'Connor, Rehnquist, and Thomas. Three of the most conservative justices effectively voted for medical marijuana (O'Connor was careful to note that she would have voted against the California law if she had been a resident of the state). Meanwhile liberal justices like Breyer and Ginsburg voted against medical marijuana.

For some other blog posts and links on this topic, see:

SCOTUSblog has an extensive discussion today with several posts, including this one.

Drug Policy Alliance Blog is part of the leading and most central organization fighting against the drug war.

Last, and probably least, if anyone needs a lawyer in New York State for a marijuana-related case, they might want to check out my website's marijuana lawyer page.