Paintball -- something different

I did something different last night. Some friends invited me to play (if that's the right word) paintball. This is where you run around with guns that shoot balls of paint. You shoot at the other team and they shoot at you. Well, mostly what I did was hide behind the inflatable objects that are there for that purpose. Once in a while I'd peek my head and gun out and take a few shots, and then quickly duck back down and hide. Despite my cowardly tactics, the other side still found ways to get me.

I think most paintball is done outdoors, but Albany Paintball now has an indoor paintball field in Albany.

It was fun at first, but after a few rounds, my arm felt like it was falling off due to the weight of the gun. Yes, I am out of shape. Also, I realized how much I don't like having other people shoot at me.

While I realized it wasn't for me, it seemed like those who were there really enjoyed it, and I can see why. For anyone who's interested, I encourage you to check it out. But be warned: if you're a newbie, there's a steep learning curve and the experienced players will probably get you a lot. We had the benefit of getting some time for ourselves, newbies against newbies, which was a much better learning experience.

The other warning is that this can become an expensive habit. I paid $30 for last night, but I understand regulars spend as much as $60 per week on ammo, and the guns can cost as much as $800. There's plenty of other equipment you either can or should buy, so if you get addicted, that might mean less money for paying your speeding ticket lawyer. You'll have to slow down.

More on bail

After my last post, someone posted a comment on my old criminal injustice post. The comment was:

However, if the case you cited is a Felony, CPL 530.20 requires the people to be heard on bail before a decision is made.

By PML, A local Judge

As I mentioned in a follow-up comment on that post, the comment by the Hon. PML is not correct. CPL 530.20 states, in pertinent part,

(b) No local criminal court may order recognizance or bail with respect to a defendant charged with a felony unless and until:
(i) The district attorney has been heard in the matter or, after knowledge or notice of the application and reasonable opportunity to be heard, has failed to appear at the proceeding or has otherwise waived his right to do so ...

This may seem picky to some, but it is very important in some cases. The statute does not "require the people to be heard before a decision is made," as suggested by PML, a local judge (no, I haven't figured out who this judge is, but I suspect it really is a judge and I am honored to have such a comment, even as I attack it).

It requires that the DA be heard, or that the DA either fail to appear or otherwise waive the right to be heard after notice and a reasonable opportunity. That's pretty loose language.

I will say, first of all, the statute is bunk. I see no reason why a judge should be prohibited from setting bail on minor felonies without the DA being heard. Cases involving minor felonies (the lowest level of Grand Larceny, for example) are routinely resolved with no jail time for the defendant. This rule might make more sense if it applied only to offenses of C Felony grade and up, but even then a judge should have the discretion to set bail.

But let's talk about what's really wrong with this statute, and I'll put it in the context of a couple of old cases I had.

Case #1 was a DWI case, but the police officer also charged my client with assaulting a police officer, a felony charge. I appeared in a local court at 4 am after my client had called me at 2 am. The assault charge was baloney. The officer's injuries were non-existent -- he was in the courtroom when we appeared and apparently had not bothered to go to the hospital. I have little doubt in my mind that the felony charged was tacked on because the police involved didn't like my client. In fact, I'm quite sure they beat him up. This particular department has a pattern of charging defendants with "assaulting a police officer" after they beat someone up. They did this to another client of mine -- and it's never happened to any of my clients in any other place. At this point I suspect many local defense lawyers would know which jurisdiction I'm referring to, and I'll further that along by saying that the judge who showed up was and is one of the best local judges out there. Very experienced, knows the law, and is fair.

So I asked that the judge set bail and he refused, noting the statute we're discussing. I then asked the judge to dismiss the felony charge, since the officer was obviously not injured. The judge chose not to address this. I remember someone mentioned that the DA had been called, and that there was supposed to be someone on call, but they did not respond. In retrospect I should have asked the judge to deem that notice and a reasonable opportunity to be heard. But he probably would have said no anyway. I then spent about 11 hours on a weekend trying to get someone from the DA's office to respond so we could get bail set, and finally got it. The client was, of course, completely ungrateful for my effort.

The client, by the way, was clearly not a flight risk. A successful business owner, homeowner, with wife and kids, etc. Charged with among the most minor of felonies, and yet bail was unavailable.

Case #2 is one of my favorites. Client was accused of "stealing" something from the store where he worked. The arresting officer was buddies with the boss, and really stuck it to my client. He arrested my client at night, after court was done for the night in that particular jurisdiction. So there was no DA available. The cop also manufactured evidence indicating the item "stolen" was worth more than $1000, making it Grand Larceny at the lowest level, an E felony. By timing it the way he did, my client would have sat in jail for three days until the next court night, if it wasn't for his brother finding me on the web. We got my client out the next day. The prosecution eventually dropped the charge to a petit larceny, offered an interests of justice dismissal, and we won the case at trial.

This bail rule is completely arbitrary. I had another client on a similar "stealing from the store" grand larceny case where the officer brought that client to the police station, ran his prints and did whatever else he needed to do, and then drove that client back to the client's house with an appearance ticket telling him when to be in Court. In other words, if the cops want you to spend some time in jail, they can make it happen. This is the practical effect of CPL 530.20. We were thinking of suing the cop in Case #2, but one night in jail and my relatively modest legal fees just weren't enough to make it worthwhile. And the cops know they won't get sued if they only jerk you around a little bit.

By the way, I'm not trying to pick on all cops here. Just the bad ones who abuse the system. I'd say that's far less than half of them, but there's certainly some who do it. And CPL 530.20 provides them with a way to do it.

I hope the Hon. PML will keep this rant in mind the next time this issue comes up on a low-grade felony, and use discretion to deem a phone call and no response within a half-hour as notice and a reasonable opportunity for the DA to be heard.

Bail - Its true purpose and how it is subverted

Some time ago I had a brief rant about criminal injustice and I mentioned bail at that time. The bail issue came up recently on a couple of my cases so it's in my head again.

First, the true purpose of bail -- to make sure the defendant shows up for Court. See People ex rel. Lobell v. McDonnell 296 N.Y. 109, 71 N.E.2d 423, 1947. It is particularly important where the defendant is perceived as a flight risk. OJ's drive in the Bronco is a good example of how a defendant can ensure he is denied bail.

But what about where the defendant shows no sign of being a flight risk? It is nevertheless very common for judges to set bail at a very high level in some cases. Two of my recent cases are great examples. In one, my client grew up in the area, owns a home, is married, has kids and a substantial extended family, has a stable job with the government, and faces one of the weakest prosecution cases I've ever seen on relatively minor felony charges. Bail was set at $90,000.

--Note--
If you're about to face a judge who's going to decide bail read that paragraph above again.  If you live in the area, own a home, are married, have kids, and have a job, those are all things you should say to the judge before he sets bail. It's hard to know when to say it, but at some point, say this: "Your Honor may I be heard on bail?" Wait for the judge to give you a chance to speak. He or she probably will. Then say: "Your Honor, I've lived in this area for _______ years. I own a home. I'm married and we have ___ kids. I have a steady job. These are important factors the law says you're supposed to consider in setting bail. I'm not a flight risk. This is my home. Please release me on recognizance."

However, do not talk about the strength or weakness of the prosecution's case. You don't want to speak about that in open court yet.
--

I've got another case where my client, from out-of-state, drove over four hours to appear in Court to face charges similar to the one above, and bail was set at $50,000.

Let's get this straight. The guy drove up to Court to face the charges from out of state. How is this defendant a flight risk? How is the other defendant a flight risk?

And that brings us to the improper purpose of bail. In many cases the defendant is unable to make bail and remains in jail while the case is pending. This has one very profound effect, and everyone in the system understands it. A defendant who is in jail is always looking for a deal to get out of jail. By contrast, a defendant who is not in jail is a lot less motivated to take a deal.

Prosecutors want bail set high because that makes it easier for them to make the defendant take a deal. Many judges are complicit in this. The other day I challenged this issue with a judge who had set bail rather high. The judge claimed not to have had enough information. So how did the judge choose any particular bail amount? My cynical side suggests that bail was set high with the expectation the defendant wouldn't make bail and would be stuck in jail. The defendant's family made bail anyway.

Sometimes when the defendant makes bail, it's through a bail bond. The bail bondsman charges the defendant's family a fee for posting the bond, and that fee is substantial. Typically the fee is about 10%. My client with $90,000 in bail ended up spending about $7000 on the bail bond. Even if he wins (and he will) he never gets that $7K back.

This system is particularly unfair to the poor, as they can rarely afford any level of bail. I've even heard that one local judge sets bail on alleged prostitutes (a misdemeanor offense), and by the time the police lose the evidence they've already spent a substantial amount of time in jail. The women charged with such offenses are often poor and rarely have spare money lying around for bail.

One of the unfortunate realities of being a criminal defense lawyer is that the people who call me about their family member in jail usually can't afford me. I can tell this right away because they couldn't afford to bail the person out.

Here I am, one of those heartless Republicans, and I'm complaining about how the poor are treated. Hmm. Where are the Democrats on this? But now I should be on my political blog.

Judges, policies, and the law

[Note: I did a new post about the Pringle Hearing in DWI cases.]

One of the irritating things I've been noticing more and more lately is when a judge has a policy. The way I've seen it most is where there's this notion of "quality of life" offenses. One local judge I know had a policy where offenders had to do community service on such violations. I also know of a couple judges who have policies on prostitution crimes - in this case the only deal they'd accept is "plea to the charge," often with community service as a part of the deal. Another judge I know is "tough" on DWI cases -- imposing higher fines than other judges and refusing reductions that other judges would allow.

With all due respect to these judges (and despite what you might think I do respect them - they got elected and we all know how well I do in elections), judges do not make policy. If you want to make policy, run for City Council or the State Legislature.

The job of a judge is to uphold the law, and to help resolve disputes between the parties. If the DA and the defense lawyer have reached an agreement on a plea deal, it is not the role of a judge to refuse the deal because of that judge's policy.

That's not to say judges can never reject plea deals. But the reason for the rejection should be a discretionary one based on the facts of the particular case -- the defendant has a long criminal history and a child was endangered in this particular case -- that sort of thing. It should not be rejected because the judge doesn't like this particular offense. The legislature sets policy on offenses, not judges.

This takes me on a sidetrack to another thing that bothers me about some judges. Judges should follow the law. This is a problem I see mostly in the local courts, and rarely in the higher courts (such as County Court & Supreme Court). There was a New York Times series on the town and village courts, and this is the one area where I agree that the non-lawyer judges are more prone to error, though I see similar errors with lawyer-judges as well.

A good example of this is the "prompt suspension law" regarding DWI cases. In theory, when someone is charged with a DWI offense for a BAC over 0.08, the judge is supposed to suspend the defendant's license. There are a number of problems with this law, including simple due process concerns, the whole "innocent until proven guilty" thing, imposing a DMV administrative role on someone who's supposed to be a neutral magistrate, the fact that it was poorly written and so does not apply to out-of-state drivers, and more.

On the due process issue, the Courts have ruled that a defendant is entitled to a hearing (known as a Pringle Hearing) before the suspension. The general concept is "notice and an opportunity to be heard." My experience suggests this process is just not followed in any consistent manner across the courts. In one county the judges just ignore the whole thing and don't suspend. In many courts the judges suspend without giving the defendant notice or a hearing (this is one very good reason to hire a NY DWI lawyer right away).

I was just in one local court where a lawyer-judge suspended my client's license. I asked for a Pringle Hearing and was told we could have one in a few days, but my client's license was being suspended anyway. -- You're not supposed to suffer the deprivation until after you've had your hearing.

I then asked for a hardship privilege for my client and did everything required by the law but the judge insisted that we had to apply for it in writing, and he had a number of very specific requirements we had to include that are not mentioned in the law. Then after we had done everything that was asked, the judge disappeared and my client was unable to drive for a couple extra days.

And while I appreciate all the DWI fanatics seeking to keep us all safe from this dangerous maniac, please remember that the defendant is innocent until proven guilty.

But getting to my point, this judge did not follow the law. Your job is to uphold the law. If judges don't follow the law, they send a very bad message. The defendant has rights. Judges should respect those rights.

I have an appeal pending related to a previous post involving community service on a marijuana ACOD. Unlike the case I mentioned in that post, the judge here followed the DA's approach and insisted on community service as a condition of the ACOD. I remember distinctly approaching the bench and showing the judge the statute. CPL 170.55, the regular statute for ACODs, has a specific provision for community service. CPL 170.56, the statute for ACODs on marijuana cases, does not have that provision. I remember what the judge said about it: "It doesn't say I can't require community service." Well it doesn't say you can't impose the death penalty either, but you can't. This particular case is the intersection of a judge not only having a policy, but even worse, having an illegal policy. I happen to be very fond of this judge on a personal level and enjoy practicing in that court, but I think society would be a lot better off if judges followed the law and left policy-making to the legislature.

Following Too Close (Tailgating) - The traffic law that should be enforced.

If you received a following too close ticket, please check out our New York Traffic Lawyer page.
I've complained off and on about the excessive focus on speeding and the excessive punishments for DWI. Despite what some might think of me, I do think some laws should be enforced, and in some cases more vigorously.

The biggest one that stands out in my mind is "Following Too Close," (or following too closely) a violation of section 1129(a) of the Vehicle and Traffic Law of the State of New York. This used to be commonly known as "tailgating," but that term has been taken over for parties in parking lots of football games.

Here's what I know as a traffic lawyer and a personal injury lawyer: following too closely is the most common cause of traffic accidents. You will often read statistics that say speed is a factor in some large percentage of accidents. Baloney. I was a trial lawyer for one of the largest auto insurers for over three years, then law clerk to a judge handling a number of car accident cases, and now have my own practice where I still handle car accident cases.

We do see accident cases where speed is a factor, and even some where speed is a major factor. But in most cases it's not a factor at all. You could get into semantics and say that if someone was driving slower the accident wouldn't have happened, but you could also say it wouldn't have happened if he stayed home that day, or if he'd been driving faster as he would have been further down the road and would not have encountered the other car at that intersection. Well, hopefully you get the idea.

Following too close is the cause of many, many accidents. I see people doing it all the time. But I rarely get cases where someone is charged with following too close. Why? I don't really know. Maybe if a police officer reads this blog he can explain.

I have my guesses. For one, speeding tickets are politically popular, so there's pressure on patrol officers to write speeding tickets. The government spends lots of money on radar, lasers, and related equipment so they have to justify the spending. It's easy to write speeding tickets. Just sit in a U-turn on an interstate and you can write tickets all day long.

Then there's the punishment side. Following too close is a 4-point ticket with a fairly low fine (I think total is under $200), and under Insurance Law 2335, one such offense cannot affect your insurance rates. By comparison, a speed of 16 mph over the limit has a max fine of $355, also four points, and can raise your rates (probably 30% a year for 3 years). At 21 mph over the limit it's six points $655 total, and the same problem with insurance.

Just my personal opinion, but going 86 in a 65 on an empty interstate is far less dangerous than the guy who was tailgating me this morning, one car length behind me at about 50 mph (hey, there was traffic - I really couldn't go faster). He was driving a beat-up car and I'm driving my ubervagen (Audi A4 Avant). My car does 70-0 in about 170 feet. His car probably takes over 200 feet.

As an aside, don't tailgate the Corvette Z06 -- they've got awesome brakes - I think it's 70-0 in 140 feet. I read Car and Driver, so I know such things. And I stayed at a Holiday Inn once too. :-)

I really don't think it would be that difficult for police to enforce 1129(a) of the V & T Law, and I wish they'd do it more. I do like getting paid to handle all these speeding ticket, but I'd like to be safer and some enforcement on cases of following too closely might actually make a difference.

For all those who think I'm wonderful ...

In case you think I'm wonderful, there are those who disagree. Our recently fired paralegal has posted her thoughts on us on her MySpace blog (link no longer good). I'm the "asshole" in the story, by the way.

Let's just say that I don't quite agree with everything she wrote, and in particular I didn't know a workplace was supposed to have a specific rule about being on time for work. My general sense is that when you start a new job, you should probably show up early for the first month, and maybe the first year. And you probably shouldn't ask if you can leave early on a repeated basis in that first month. And you probably shouldn't ask for days off in that first month. And you probably shouldn't ... well, you get the idea.

Seriously though, this was a difficult experience for me (I'm sure it was worse for her). Firing someone is not easy. I was thinking about waiting until after Christmas on some notion that it's cruel to fire someone so close to Christmas. It turns out that before Christmas is a good time to find a job, and after Christmas may not be such a good time.

It's also hard to tell someone directly to their face why you're firing them. Somehow it's easier to cross-examine a cop in a courtroom.

Then there's the process of making sure they get all of their stuff and get out, because you just don't want someone who's been fired hanging around or showing up again. So when I found her sweater in the kitchen after she had just left, I figured it was better to get them to her while she was still in the neighborhood than have her come back in later that day or another day.

There's also that question about how much one should blog about one's life on the web. Our former paralegal also posted about her previous job on her blog, where she mentioned she doesn't like doing personal injury work (funny, that's what we do too). You don't really want to have to explain to your new boss why you posted that you didn't like doing the same kind of work for your old boss. So inviting your new boss to be your friend on MySpace, which leads him directly to your blog, might not be the best idea.

Despite all that, I wish her well on her new job and in her life. Seems like a decent person, but just not right for our office. Hopefully she learned from this experience ... and doesn't invite her new boss to be her MySpace friend so he/she can read her blog too.

Google -- Very Good, But Not Perfect

I'm still happy with Google overall, but my latest experience wasn't what I'd hoped for. I've been concerned about the Google Checkout badge on my AdWords ads. So I sent a message into their customer service. Here was my message:

Question: While the Google Checkout badges are probably helpful for some of my cases, especially speeding tickets, some of the work I do for clients is done where payment cannot be made through Google Checkout - in particular where I work as a personal injury lawyer and get paid based on what we receive from the insurance company. I'm concerned that the Checkout badge is a negative for potential clients who would expect they would not have to pay. I would appreciate it if you would work on making it possible for us to disable the badges for some Ad Groups while keeping them active for others. This shouldn't be that hard to do.

So I got their response, and it seemed a bit like you get from other companies:

Hello Warren,

Thank you for your email. I understand you would like to display Google Checkout badges on some AdWords advertisements but not others. We greatly appreciate any feedback or suggestions for ways we can improve Google Checkout. Your comments provide us with the assistance we need to optimize our program, so please continue to give us feedback in the
future. Google Checkout does not provide the abilityy to display Google Checkout badges on some AdWords advertisements but not others, though this feature may be introduced at some point in the future. We will be taking your thoughts into account as we move forward with our product development.

Please feel free to reply to this email if you have any additional questions.

Sincerely,

Ben
The Google Checkout Team

Maybe it's just me, but I think Ben might be a computer. I don't think a real person read my e-mail and took the time to think about what I had to say, forward it to people higher up, etc. This is a legit concern. Many people using Google Checkout don't have this issue, but I doubt I'm the only one who has this concern. This would be a real easy fix for them, and they should fix it.

I'm still a Google fan, and will continue to be faithful to them. I'm not much on brand loyalty, but there are a few brands to which I am loyal -- Google, Apple, and Amazon are top examples.

Digressing, I have very strong positive feelings for Honda (and Acura) but don't own one of their cars. I did get my mom to buy a Civic. I drive an Audi A4 Avant 1.8tqm (that means it's a wagon with a 1.8 liter 4-cylinder turbo quattro (all-wheel-drive) with a manual transmission). I don't have much loyalty to the brand but I really do like my car. I kinda wanna get a Honda CR-V, but my car still drives great and the CR-V would be a step down in many ways. The downside of my Audi is that it hasn't been great on reliability. No really horrible defects, but a lot of nagging minor ones. A couple of rattles, a recurrent problem with the lumbar in the seat, and there were several other problems. But it really drives so nice. Over 26 mpg over the life of the car, 0-60 in 8 seconds, and it's a cross between a mountain goat and a snowmobile when winter hits. Plus it gets excellent safety ratings.

Another product loyalty area is cell phones. I have a Palm Treo 700p. It's my 3rd Treo. I started with the 600, then had the 650 and now have the 700. I've actually had several Treos because I had 3 or 4 of the 600 model and I think 2 of the 650. I'm about to get my 2nd 700. I'm addicted to the Palm features and the integration with the phone, but I'm just getting sick of how often the damn thing stops working right. They drop calls. They crash. I get them replaced, mostly for free or cheap (this one's going to cost me $55 after just 6 months). But I'm getting tired of dealing with this. I'll probably keep the Treo as a backup phone, but I'm likely to switch to a regular phone and a separate regular Palm handheld. Or maybe I'll use the Treo as a handheld until I see a Palm I want more.

The point here is that Palm could easily have my brand loyalty but they keep failing on reliability. I'm not the only one. I've been at the Sprint store when there were as many as 4 other Treo owners waiting to get theirs fixed, and one of the real long-timers at that store laughs when I complain about it, indicating that other people have even worse experiences with the Treo. The Treo series is consistently the best smartphone on the market. It's so good that I've been putting up with these problems for more than two years, maybe three. But now I'm getting ready to move on. All they have to do is get the quality issue settled and they'd have a million addicts. They've had three years to get it right and they keep failing.

A trip to Dallas

I'm still scratching my head about this.

My client was sued in Albany by a NY corporation which has its main office in Dallas. We counterclaimed. The original claim was dropped but our counterclaim survives.

We were getting ready to depose someone from the corporation. They decided to argue that they shouldn't have to bring their guy here. I should do the deposition by telephone or do it in Dallas. The judge ruled in their favor. I didn't agree with the ruling, but appealing that would waste a lot of time. It was easier to just go to Dallas.

So I went to Dallas. Lovely trip. Left Albany at about 70 degrees, arrived in Dallas at about 30 degrees. Yes, it was below freezing in Dallas in late November. Yes, it did snow, lightly.

We did the deposition the next morning. The other attorney also showed up. This guy is from a national law firm, and his office is in the NYC metro area. He's gotta be billing the client $400 an hour, and he probably billed 30 hours for this trip.

The witness turns out to be some minor corporate cog, three levels below a vice-president of something or other. So, to avoid having flunky boy fly to Albany, the client ended up spending in excess of $12,000 on lawyer fees alone. Meanwhile I shot more than a day on this and spent in the neighborhood of $1000 myself.

I also learned that I like traveling a lot less than I used to. I missed my family.

There were some other notable things from the trip. I stayed in the Fairmont Hotel, supposedly one of their nicest. I set up my laptop in my room only to learn they wanted me to pay $15 to use the internet. So I checked my e-mail on my cellphone instead. We stayed in LA last year and the internet usage was free, which made this more annoying.

Then I went downstairs in the morning to make some copies in the hotel's business center. This is where it gets good. In my room it indicated the copies would be 15 cents a page. High, but I can deal with it. I get downstairs and they want $2.99 to register to use the copier and, get this, $2.99 a minute for using it.

Fortunately, my cab had passed a Kinko's a block from the hotel on my way in. So I walked all of a block (yes, in 30-degree weather) and spent $10 on copies over about 30 minutes. It would have cost more than $100 if I had done it in the hotel.

I was so annoyed at these hotel rip-offs that I refused to eat breakfast there, eating at a hole in the wall nearby.

After the deposition I went to DFW and was able to get on an earlier flight. I still had to wait a few hours so I went to a different terminal for Mexican food - excellent guacamole but the fajitas were nothing special. I tried my laptop again but the airport's WiFi costs $10 a day, so I decided against it. I can afford it, but it just bothers me to pay for it. I rarely use WiFi but have gotten used to it being free when I do.

By the way, when we landed in Albany the temperature was 62 degrees, at 10:30 pm. The cold front got here the next day.

Albany judge censured

I don't know how I missed this. One of our local judges, Hon. William Carter from Albany City Court, was censured in September by the Commission on Judicial Conduct.

You can read the details here: http://www.scjc.state.ny.us/Determinations/C/carter.htm

This is one of those moments where you see a man unfairly assessed based on one or two incidents when he's had a substantial career. I've known Judge Carter for quite some time now, dating back to somewhere in the early 90s when I was an intern in the DA's office (I think that's where I first met him).

Judge Carter is a consummate professional. He knows the law better than just about any other judge out there. He is also extremely disciplined on the bench, which is why the circumstances behind the censure are so surprising. I don't know what that guy did to get Judge Carter upset, but he must have really gone over the top. Albany City Court - Criminal Part is mostly an unpleasant place to be. It has to be one of the toughest courts to be a judge because of the volume and the seriousness of what they handle.

Please don't get me wrong. While I'm saying nice things about Judge Carter here, I'm not necessarily his biggest fan. I've butted heads with him before on a case and I didn't necessarily like the way he dealt with me then. Also, he once barked at me for reading a newspaper while I was waiting in his courtroom - the big courtroom where we sit on the other side of a glass wall from the judge, prosecutors, police and court staff (How is that fair to defendants? - but I digress). He may have been right about the paper, but I still didn't like it. He's not the most pleasant judge and not my favorite judge by any stretch.

But I can't think of a time when I've seen him make an incorrect ruling. He lets us attorneys do our jobs, gives us more time if we ask for it, and he's an excellent listener (which no one could say about me). He may not be pleasant, but he has a solid temperament. Not my favorite judge maybe, but a very good judge nonetheless, and well respected by those who work in that court, on all sides.

This censure looks like one of those situations where brief moments in time are overanalyzed. One part of it was obviously a joke and the fact that this was even considered shows how far we've gone into the world of political correctness.

More NY traffic courts

Our town court directory project is moving along quite nicely. We're now over 500 courts and not all that far from 600 courts, and I think we've got all or part of 41 counties online. I even did a test court in New Jersey.

Some of the court pages getting the most attention include:

White Plains City Court
Dutchess County Court
Clarkstown Town Court (in Rockland County)
and
Farmington Town Court (in Ontario County)

The site is getting a lot of use. In the last non-holiday 7-day period there were nearly 2500 visitors. It's slowed a bit with the holiday so just under 2000 for the past 7 days, but if it's like most holidays, Monday will be a big day.

As always, we appreciate any comments or suggestions about how to improve the site.

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.

Extradition

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.

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?

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.

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.

More New York traffic courts

Our traffic court database is growing rapidly. We've got over 300 courts in the database in 32 counties. Some examples of new additions include:

Mount Pleasant Town Court and Harrison Town Court in Westchester County;

Goshen Town Court in Orange County;

Niagara Town Court and Niagara Falls City Court in Niagara County;

and both Grand Island Town Court and Evans Town Court in Erie County.

There has been a dramatic increase in traffic to the site. We're now getting over 1500 visitors a week. It was only 300 not too long ago. Come to think of it, the site has only been up in its present form since roughly March of 2006, about 6 months. The original site debuted in roughly December of 2005, but the new site is a real database implementation.

Several attorneys have mentioned to me that they like the site and have found it useful. We have gotten some surprising negative feedback about some of the more colorful comments on the site. I don't really understand that since most of the complaints are either about things that are plainly true or about a merely neutral mention of someone where something positive was said about someone else.

If you want to make an omelette, you gotta break some eggs, I guess.

A simple request

As you may know, I'm running for Congress in NY's 21st district. The media will not cover the campaign. There appears to be a deliberate policy of not covering challengers except in rare circumstances. What kind of a democracy do we have if the voters don't know who the choices are?

If you think newspapers and other media should cover challengers, please contact the appropriate people at the media outlet of your choice.

For the Albany Times Union: http://www.timesunion.com/forms/emaileditor.asp

For the Daily Gazette (Schenectady): opinion@dailygazette.com
or
LETTERS TO THE EDITOR
c/o The Daily Gazette
P.O. Box 1090
Schenectady, N.Y. 12301-1090

For the Troy Record: newsroom@troyrecord.com

For the Leader Herald (Fulton County): http://208.15.24.251/vnr/add_submission.asp?categoryID=625&publicationID=47

For the Recorder (Amsterdam): news@recordernews.com

Thanks,
Warren

Traffic Courts in Saratoga County now complete

We've managed to finish entering the traffic courts (and criminal) in Saratoga County. Total of about 225 courts in the database and growing strong.

Feedback is appreciated. If you see anything incorrect or inappropriate about a court, please enter a comment on that court's page.

Traffic Courts and Traffic Violations Bureau

Our ny traffic court directory project is going well. We now have about 200 courts in the database. We have completed all or part of 29 counties (there are 62 counties in New York State, with roughly 2000 courts). My friend Dave Cheng, who work in executive coaching for women, has helped me with his skills in Human Resources. He's put together a team that is entering data.

I'm most excited about getting the New York City traffic courts in, since that is something we get a lot of calls for but can't help with. New York City handles speeding tickets and other traffic matters in the Traffic Violations Bureau, an arm of New York State's DMV. The NYC TVBs are:

Traffic Violations Bureau - Brooklyn North
Traffic Violations Bureau - Brooklyn South
Traffic Violations Bureau - Bronx
Traffic Violations Bureau - Manhattan
Traffic Violations Bureau - Queens North
Traffic Violations Bureau - Queens South
Traffic Violations Bureau - Richmond - Staten Island

There are also TVBs in the cities of Rochester and Buffalo, as well as in parts of Suffolk County.

A good day for my speeding and marijuana clients

Had a good day the other day, handling three cases in two courts. For one speeding ticket client, I got a typical reduction from a high 6-point speed to a 3-point speed. Usually you hope for a little better but her driving record wasn't clean.

For the next client I made a big difference. I'm handling three high speeds for this particular client in three different courts. The speeds range from 95 to 101. My main concern here is getting at least one of the speeds reduced to something other than speed, even if it's a lot of points. You can save your license from points by taking defensive driving, but you can't save it from three speeds in 18 months.

My of-counsel got the 101 reduced to 80 mph a couple weeks ago. This is a big deal because a ticket at 15 over the limit should not affect insurance under Insurance Law 2335 (depending on the interpretation of "two or more violations of other statutes ..." in the last item on the list). It's also a big deal because judges and prosecutors get sticky at speeds over 100, and this reduction from 8 points to 4 is more difficult at such high speeds.

The 95 mph ticket is down the road, and has some other violations with it. Not sure we'll be able to get that one out of speed. I managed to get the 96 mph ticket out of speed by taking it to a 4-point moving violation (1129 - following too close). How? By being open and honest with both the prosecutor and the judge. A good attorney who has credibility with cops, prosecutors and judges can lay it out for them -- this is what I need, this is why I need it, and this is what we can do to get there. It helps when you're dealing with a reasonable prosecutor and a reasonable judge. This particular judge is one of the best judges around - experienced and a good listener.

It's probably surprising to see me refer to a "reasonable prosecutor". My concerns about prosecutors are mainly limited to criminal matters, especially felonies. Almost all prosecutors are reasonable when it comes to traffic cases. This is probably because of some or all of the following: (1) they speed too; (2) they've got bigger fish to fry; (3) there's too many cases and they just want to get home; and/or (4) they know it's just a revenue thing. Prosecutors are also generally reasonable on misdemeanors, mainly for reasons 2 and 3, above. When it comes to felonies some of them get more difficult. I don't like when that happens, but that's pretty much what the public wants I guess.

Turning to my marijuana client, he had a UPM (unlawful possession of marijuana violation) and a CPCS 7th (criminal possession of a controlled substance in the 7th degree) misdemeanor for psilocybin. This kind of case presents a particular problem that some defense attorneys might miss. If your client pleads guilty to any drug violation, they become ineligible for financial aid - forever (or until the law changes). This client is roughly 21, and is working now but may go to college at some point. Thanks (again) to a reasonable prosecutor and a fair judge (in a different county mind you), the client gets a disorderly conduct violation (aka dis-con).

And I handled all three cases in a span of roughly 2 hours, including a half-hour drive and an errand between courts.

Seems odd - politics in Bethlehem ?

This seemed odd to me. I went to court late yesterday on some Bethlehem speeding tickets. The parking space next to me had an official Bethlehem town vehicle. Inside it, as you can see in the picture, were some campaign signs. The picture shows the town logo on the vehicle, and the campaign signs in the back.

At first blush I thought it was inappropriate for a town vehicle to be used to carry campaign materials. However the vehicle was marked "Code Enforcement" on the back, so perhaps the code enforcement officer had removed the signs. But then, these signs were for a Republican candidate, and the Town is now run by Democrats. Are they engaging in selective enforcement of the sign laws? I believe the candidate whose signs were in the back (Martin Reid) is facing third-party primaries today. Was the timing of the sign removal related to the primary?

I'm probably thinking too much, as this isn't that big of a deal.

I remember when I worked in the Fulton County office complex how many of the cars in the government parking lot had campaign stickers on them during election season. It seemed a bit inappropriate to campaign on government property. But that's just the way the world is, I guess.

Lawyers in Albany - Courtesy

If you get lawyers in Albany talking, one thing that gets many of us going is a perception that downstate attorneys (i.e. New York City and Long Island) are unpleasant to deal with. I have actually had quite a few good experiences with downstate attorneys, but I have at times had such bad experiences. The truth is that not all attorneys here are courteous, and that's what prompted this post.

We have a case going right now where we need to depose a number of employees from the company we're suing. As a courtesy, and without being asked, we offered to depose those witnesses at the company office because that would be more convenient for them. Normally depositions are done at a law firm office or in a courthouse.

Today I spoke with the attorney for the other side. He indicated that they were only going to produce one witness at the first deposition. I was not pleased with this and he referred me to CPLR 3106(d). I am aware of that provision and understand his position, but I don't like it. I don't think it applies here because we have a scheduling order that says depositions must be completed by the end of September, and they didn't raise this issue while we were putting the scheduling order together. Since it is now September 7th and they haven't offered us dates yet (despite our efforts to get dates from them), it will be rather difficult to get further depositions from these witnesses before the end of September. And of course with all of the delays to date and further ones to come, some of the employees will no longer be employees by the time we get to them.

Anyway, the point is that we had gone out of our way to extend this courtesy to them (without being asked, mind you) of doing the depositions at their client's office. Now, with time running on the scheduling order, they're sandbagging us in a way I consider quite discourteous. This conduct will not stop us from getting the depositions we want, but it will make it a little more difficult, take more time, probably require motions, and otherwise be a pain in the ass. It will mean more billable hours for their law firm, but that is not an admirable reason for such conduct. This is the kind of behavior that just pisses me off. I spent about 15 minutes bitching about it to other attorneys in my office. Now instead of just getting the depositions done and moving on with the case, I have to think about how to deal with his discourtesy. Do I make a motion? Ask the judge for another scheduling conference? Subpoena everyone to my office shortly after the first deposition? Just a pain.

I have generally had good experiences with this particular firm, so I'm not going to blame the whole firm. They're a fairly large local office of a much larger firm based in another city (probably New York or Chicago, but I'm not sure of that). But as far as this attorney goes, I will no longer extend the courtesies I extend to other attorneys. I withdrew the offer to conduct depositions at his client's facility. On the phone he said if he wanted to he could insist on doing the deposition in the county of venue (where it was sued). That was an odd threat, since it makes little difference to me and will be less convenient for him and his client.

So in case anyone thinks that being a lawyer is always easy and never stressful, I'm afraid we have our moments. I guess that's a funny thing to say. Many people probably think the work of being a lawyer is very stressful and I suspect many lawyers feel that way. I've found that it's mostly a pleasant experience with some tough moments. I try to be courteous so I don't make life stressful for other lawyers (or for my clients or even the adversary's clients). If you're courteous to others they usually return the courtesy.

How clients see lawyers and the process

One of the toughest things for lawyers is understanding how their clients feel about the process.

For experienced lawyers, the process is what it is. We get our client through the process as best we can. There can be a number of steps, and many of them are mysterious to our clients.

Because of our experience, we are used to it and it's hard for attorneys to see how unpleasant this is for the clients.

Our clients get angry at the other side's lawyer. Usually this happens when that lawyer is doing a particularly good job as a lawyer. When this occurs I go out of my way to stress that this is a good lawyer doing his/her job. I'm afraid this often falls on deaf ears.

Our clients have quite a bit on the line. In personal injury cases they have twice as much at stake as we do, and this is their only case. As a personal injury lawyer, I've got quite a few other cases in the hopper. In criminal matters they may be looking at prison time if we lose the case. No matter how the case goes, the prosecutor and defense lawyer go home. In drunk driving cases (which are criminal) their right to drive (officially a privilege but I still consider it a right) can be suspended or revoked. The DWI lawyer drives away regardless of the result. And in election law matters, our clients may be deprived of the right to be a candidate on the ballot after they've worked hundreds of hours getting signatures.

In the end, many of our clients perceive the law, the lawyers, the judges, and the whole system to be unfair. They're right that it's not fair. No system is perfect, but experienced lawyers know that the process we have is better than any alternative we've seen.

I like to explain why lawyers are so unpopular. Figure Client A and his Lawyer B are going up against Client C and Lawyer D. There's four relationships between clients and lawyers -- client with his own lawyer (x2) and client with the other lawyer (x2). Each client is generally going to dislike, and often hate, the other side's lawyer. So just for starters, in 50% of relationships between non-lawyers and lawyers, the lawyers are hated. Now one side has to lose. That client is probably not going to like his lawyer. So we're at 3 out of 4. Last, the winning client might be happy with his lawyer, but then again, it cost a lot of money.

I do find that my clients tend to be satisfied most of the time. We do get a few dissatisfied clients, usually when we get them a good deal on a speeding ticket but they had unreasonable expectations. We got one client a parking ticket from a high speed and she complained about the $150 fine. We saved her more money on the fine alone than our fee, and the insurance savings will be about $1000. But she thought a parking ticket should have a lower fine. Welcome to New York.

I try very hard to explain to clients what usually happens with tickets, and make very clear that we can't promise or guarantee results. Most understand this. Client today called me to thank me for being a man of my word for getting him a parking ticket. I was quick to point out that I had made no such promise, and that it just worked out well. He seemed happy anyway.

Another problem comes when the client expects you to know exactly what's going on with his case at all times. Client called me today at 9 pm to see if I had received something he mailed to me a few days ago. This may shock some people, but many lawyers are not in the office at 9 pm. More important, I don't have every case in my head.

For the client, their case is the most important one they have. I'm sorry to say this, but as a lawyer, your speeding ticket case with a $300 fee is not my most important case. Not too long ago I watched a client get sentenced to nearly 20 years in state prison. I've got another client who lost his leg in an accident. Those cases are more important. But the clients do not understand this. That $300 fee is a lot of money to them. The case is on their minds. They fear that something will go wrong and they'll be arrested (doesn't happen on a speeding ticket in NY) or their license might be suspended (rare, but it can happen). The traffic stop was a dramatic intrusion into what had been a safe and secure life for them.

For the lawyer, the $300 fee on a speeding ticket is not a whole lot. Figuring a typical lawyer needs to bring in $150,000 in revenue to cover overhead and make a decent living. FYI, a full-time secretary will cost $50K/year or more including benefits. Then there's rent, etc. So to get to $150K in revenue if you only do $300 speeding tickets, you'd have to handle 500 speeding ticket cases a year -- more than one a day.

I put it another way to the traffic ticket clients: If you find a lawyer for whom your $300 speeding ticket case is their most important case, he's not a very good lawyer. By that I mean that he isn't handling more serious cases and he's probably not that experienced.

Nevertheless, it's important for lawyers to see how our world affects our clients. A little understanding goes a long way.

Respecting the police

I was deeply saddened by the death of Trooper Longobardo. He died in the line of duty attempting to apprehend an escaped criminal.

Readers of my blog will often see comments from me critical of prosecutors, and sometimes of police as well. While I will not hold back in my criticism of police or prosecutorial misconduct when I see it, that should not be misread to imply any dislike of the police.

One of my best friends is a New York State Trooper. I've known him for 20+ years, and I know that could have been him. I know his wife and his children, and I know what his loss would mean to them, not to mention what it would mean to the rest of his family and his friends - including me.

I deal with police officers more than most people. I see Troopers in Court a few times a week, and deputies once in a while. Occasionally I cross-examine police at hearings and/or trials. It's easy to perceive us as being on opposite sides. In reality we're all serving different roles with the same purpose - making sure justice is served. They are mostly good people trying to do the right thing. I disagree with them on occasion but I have little doubt that the vast majority mean well the vast majority of the time.

Police officers have very difficult and dangerous jobs. It's not that their work is that way all the time. They have easy days as well. But just about every police officer has those moments when they look death square in the face. And they have to deal with the most unsavory characters on a pretty regular basis.

My main concern related to policing is not the inevitable misconduct that goes along with putting humans in difficult spots, but rather the policies we (as a democracy) put upon our police to enforce. I'm an outspoken critic of the drug war not just because it's a failure, but also because of the situations it forces police into - situations that tempt them to lie, cheat and steal as well as situations that put them in grave danger. I serve as General Counsel, pro bono (for free), to Law Enforcement Against Prohibition, a group of primarily retired (but with some active duty) law enforcement officers who oppose the drug war for these reasons.

Meanwhile, the focus on speeding tickets and DWI enforcement is a horrendous waste of the skills and training we invest in our police - turning them into trolls under bridges.

Cops, prostitutes and the dying population centers of Central NY

Well that was interesting. I recently had the pleasure of visiting one of the population centers in Central NY. My client was charged with having something you're not supposed to have. I'm pleased to report that the case was dismissed (thanks, of course, to my fine legal work ... and a good judge, reasonable prosecutor, and some well-written laws).

Anyway, the circumstances were interesting. Client approached a woman on the street and invited her for a drink at a bar. She declined. He then asked if she'd like to try an illicit substance. She agreed, and then arrested him. She was an undercover cop, posing as a prostitute. I should note here that there's no indication my client made any attempt to seek sexual contact with our intrepid police officer.

When I was in Court, the lawyer next to me had a similar case where a different woman cop from the same police force was also posing undercover when his client offered her a substance about which the laws of the State of New York are not quite as tolerant.

What is going on in Central NY where so many women cops are doing undercover work posing as prostitutes? I've been handling criminal defense in Albany Schenectady Troy etc. for over three years now and haven't even seen one case like this. It's my impression that there is a fair amount of prostitution going on here, but maybe Central New York has us beat on this industry.

Word to the wise - don't have sex with prostitutes. So many reasons why this is a bad idea. Following the great Joycelyn Elders (our former Surgeon General) I have to suggest that sex with a prostitute can't be that much better than masturbation.

Supercop

Supercop is a police officer I see on a regular basis. For starters I should mention that he's a good guy and is reasonably pleasant, to me at least.

He writes a lot of speeding tickets and takes this more seriously than any other cop I have met. I've been told he has a nickname among his fellow officers due to his overenthusiasm (combined with a bit of a slight) but I won't mention it because that might identify him too easily. Apparently he's particularly eager with high speeds (over 90) and with motorcycles.

Some of the police we see are generally willing to give good deals on speeding ticket cases. As attorneys, we're always hoping to get our clients a parking ticket. Supercop will rarely agree to this, even when the speed is fairly low. There are a few others like him so he's not alone in this.

Recently I had a case with Supercop and he did something I'd never seen before. I show up to Court with my client's DMV record. A lot of cops will also show up with the DMV record. Supercop goes further. Apparently there's a database out there that shows not only the DMV record, but also what tickets the person had and what reduction they got. The DMV record only shows the convictions, and parking tickets don't show up. My client in this particular case had a speed reduced to a parking ticket, and Supercop knew about it -- I didn't. In this particular case it didn't affect the deal, but it was still a surprise.

I'm a little concerned about the existence of this database. Is this a secret database? Who has access to it? Can someone submit a FOIL request to find out what information the government has on them? Where would we submit the request to?

Getting back to Supercop, as with many other officers, I suspect they're somewhat hypocritical. I have the strong sense that many cops drive at high speed whenever they want, while talking on their cell phone (no hands-free set) and not wearing a seatbelt. A few weeks ago I was driving to a Court and a cop passed me going at least 80, talking on his cell. I'm pretty sure Supercop has passed me a couple of times going 80 mph or faster. The size and shape of his head and body are somewhat distinctive and he can be recognized from behind because of this. Plus I see him at the Court when I get there.

This doesn't make him a bad guy, but it always bothers me a little that they'll write tickets to people and then do the same thing themselves. Then again, the more speeding tickets they write, the more clients we get at our law firm.

Dell let-down

I've been seeing commercials for Dell Computer where they show the computer being assembled as the person is ordering it on the phone. I know it's an exaggeration, but at the moment I'm pretty pissed.

I ordered a computer, printer, and extra toner over the weekend for our new associate. The toner arrived a couple days ago. I went on the Dell site today to check on the status of the order. Neither the computer nor the printer has shipped yet. They estimate the computer will ship tomorrow. I did not expect it to go out instantly, but the next day would have been reasonable in light of the commercial. I don't believe there was any unusual customization of this computer.

Worse, the printer I ordered is estimated to ship over a week from now.

I discussed this in advance with the associate and he preferred a PC, but was willing to work on a Mac. I should have ordered a Mac.

At the moment I'm quite disappointed in Dell. I've ordered from them in the past and have been reasonably satisfied. This is probably my last order.

Lawyers and that personal touch

Had an interesting experience this morning. A couple years ago I represented a client in a traffic matter arising out of a car accident. She was recently served with papers for a personal injury lawsuit from an occupant of the other vehicle.

The plaintiff in the new case is represented by one of those firms we see advertising somewhat heavily on TV. I called the firm today to confirm that my client received the papers. That's where we get into the quality of experience one gets with different law firms.

First, the phone was answered with the same voice one hears on their TV commercials. He instructs that if you're calling with a new case, press 1. If you're calling on an existing case, please hold and someone will be with you shortly.

I held on and after a fairly short wait, someone did pick up the phone. It was a woman who not only knew nothing about the case, she didn't even understand the basics of lawsuits. I explained that I represented a defendant and told her the name of their client. I then told her my client's name and that confused her. I had to explain the concept of plaintiff and defendant, but I got the strong impression she didn't care. After a couple minutes of this I asked if I could speak with someone who might know something about the case. She responded that it was her role to take a message.

I'm sure that if I pressed 1 (for a new case), I would have gotten someone who knows what's going on. This, by the way, is the same kind of trick employed by AOL and other high-volume consumer advertising businesses. Get the customers in with good service at the beginning, and then throw them to the dogs. I recently got a new client from this firm after they ignored her requests for advice on a problem with the No-Fault aspect of her case. Their retainer specifically says they do not prosecute No-Fault cases - it doesn't say they will ignore your requests for advice.

When you call the Redlich Law Firm, a person answers the phone, not a recording. That's 24/7/365. My answering service does not know that much about how my business works (though I'm hoping to work with them on that this fall), but they do forward the calls to me when I'm available (which is most of the time), and send text messages to my cell phone otherwise. And this is true not only for new clients but also for existing clients, opposing attorneys, judges, etc.

My answering service does cost a lot, but it's still only about 1/4 of what I'd pay for a full-time receptionist, who would only cover 9-5, Monday-Friday. They also speak Spanish, which doesn't matter much in Albany, but it doesn't hurt.

No good lawyer goes unpunished

I came out of the shower this morning to find two messages from my answering service. Both were from the same person, in a distant county, indicating that it was a criminal matter and it was urgent.

I returned the call. In the process I endured one of those annoying messages people leave on their machine/voice-mail (too long and rude - "if I think your message is important, I might call you back"), and left a message. The person called me back when I was in the bathroom, and left two more messages with my answering service. Then he called my cell and I picked up.

At first he would not answer simple questions, but eventually it became clear this was not a criminal matter and was not urgent (it concerned something that occurred more than a month ago and nothing had happened since). It was a DSS matter resolved quickly in favor of the caller, who wanted to see if he could get access to the complaint that had started the matter. He was told it's confidential, and I informed him that I believe that's correct, and that it would cost a lot of money for me to try to get it and we would probably lose.

The caller was not satisfied with these responses and started making comments I didn't appreciate (not directed at me, but not my business either). I tried to end the call politely, but before I did the caller started telling me how I didn't have to be so rude. So here I am, having spent about 10 minutes of my time because of the caller's deceptive messages, and I'm the rude one. The minute I was called rude, I hung up.

My usual technique with such calls is to say at a certain point: "I'd be happy to discuss this with you further, but I charge $100 for a half-hour session," at which point I hear a click. I should have done that after about 5 minutes of the call.

Someday I'll get into the stereotyping effect such calls can have on a lawyer, when the caller is from a particular part of the state, with a name and accent that suggests a certain ethnic background. I like to think I'm above that, but it's starting to play on my mind at the moment. On the bright side, I've had many dealings with all sorts of people from all over the world and from all sorts of ethnic backgrounds, and I know there are good people within every group. Sometimes it seems like I get calls from the bad ones.

And one last thing - I have to emphasize my extreme dislike for long annoying voicemail intros (the message the caller has to listen to before leaving a message). A couple days ago I got a call and called the person back. The voicemail picked up and I was subjected to 30-45 seconds of what is presumably the person's favorite song. It was not my favorite song, and it wouldn't matter if it was. Your message should be short and to the point. "Hi, this is Joe, please leave a message." Just one lawyer's opinion.

The Fixer

While I will maintain anonymity as best I can on this profile, this person's nickname is for real and is known by many in the legal community. If I know it a lot of people must. I'm not worried about it because this will be a flattering profile.

The Fixer is a successful criminal defense lawyer. He is not a high-profile guy. You don't see him in the papers or on TV much. I've known him for some time now and can't think of a bad thing to say about him. I do have a lot of good things to say.

He's friendly and he can be a bit of a mentor to less experienced lawyers (like me). I'm not saying he lectures at seminars, but if you see him in a Court (he's in a lot of courts), you can ask him a question and he'll give helpful advice -- usually short and to the point.

He seems to work an awful lot. I go to a lot of local courts for traffic tickets and more serious criminal cases. I remember one day I went to four different courts and saw him at each one. I make it to a lot of courts as well, but he's been doing it a lot longer and I suspect he goes to more courts.

His most notable trait is where his nickname comes from. He's The Fixer. He gets deals for his clients that most other lawyers would be unable to get. I'm not referring only to plea bargains, but also to various stages of the criminal process (like bail) where he manages to get better treatment for his clients.

Now some lawyers get deals for their clients by aggressive defense work, finding any kind of hole in the prosecution's case and then using that as a reason for a better deal. The Fixer's method is a bit of a mystery. Does he know the right people? Does he use political connections? Is he just so smooth that prosecutors want to give him deals? Maybe it's all of the above, or something entirely different. He's playing that part of a game at a much higher level than the rest of us.

I don't know how he does it. But he does. I've seen the results. In one case he handled bail was set at one-tenth of what I expected. That can make a big difference to the client - it's the difference between being in jail while your case is pending and being on the outside. When you're in, you'll take any kind of deal you can get. When you're out you're not looking for a deal, so the offers tend to get better. If I was charged with a crime and I wanted the best deal I could get, he's the first person I would go to.

I'm not sure he's the lawyer I'd want if I were innocent. I don't know about that aspect of his skills, but if I woke up from a coma, was told I had been charged with a crime, and that The Fixer was my lawyer, I'd be comfortable.

Profile: The Bully

In the past 10 years I've handled cases in something like 20 counties, in traffic court, lower level criminal courts, higher level criminal courts, Family Court, Supreme Court (New York's main civil trial court, at least in the Albany area), the Appellate Division (Third Department), as well as federal courts in Manhattan, Albany and Syracuse.

I've practiced in front of quite a few judges -- well over 100, maybe as many as 500. Not all of them are pleasant, but The Bully may be the most unpleasant I've met.

Now to be clear, I'm not saying The Bully is without good qualities. For one thing, he is an excellent speaker. Like few others, he has a remarkable voice. If you are anywhere inside his courtroom, you will hear everything he says and you will be unable to claim you did not understand something he said. I'm not saying he yells. Not at all. Just a powerful, commanding, and well-controlled voice.

He also is intelligent, and knows the law rather well. Perhaps not as well as he thinks he does, but certainly better than the average judge. And at times he seems to have a heart.

But for his most distinguishing trait, we turn to the most important characteristic of a judge -- temperament. We spend much of our time in front of judges. With the pleasant ones, we enjoy being in their courtrooms. They are cordial, they respect the lawyers and allow us to do our jobs, stepping in only to resolve disputes. The best judges do not create additional disputes, nor do they abuse the lawyers.

The Bully demonstrates an utter lack of respect for the attorneys who appear before him. It's as if he's urinating on the courtroom floor to show it's his turf. This is particularly noticeable with attorneys who are unfamiliar with his court, or who are not within his circle. The Bully berates lawyers who make arguments he doesn't like. His manner turns from appropriate criticism of the arguments themselves to personal attacks on the attorney's character.

Now you have to understand something about being a lawyer. When there are two sides arguing, in the end, one of us has to be wrong. While there are many cases where it's a close call and both sides make a credible argument, there are also times where circumstances force us to argue a position that is very difficult to argue (i.e. even we think we're wrong). We do our best, but this is a very difficult position to be in. A simple example is when a client instructs us to take a position despite our firm advice against it. Good judges understand these situations, and do not abuse the lawyers who are stuck in them. The Bully takes these opportunities to belittle the lawyer.

There are certainly situations where a lawyer is unprepared, or simply clueless. Most judges let it pass. Some might even ask the offending lawyer into chambers to discuss the problem, educate the lawyer, or perhaps yell at him, but in the privacy of chambers. Abusing that lawyer in open court accomplishes little, but The Bully revels in the opportunity. It's like Mike Tyson beating up a third-grader.

The Bully also demonstrates his lack of respect for the lawyers in another way. He wastes our time. While many judges understand the demands on an attorney's time (and the fact that our clients are paying for it), The Bully conducts his courtroom in a manner which wastes attorney time. Thoughtful judges schedule appearances, so one group of lawyers might show up at 9 am, another group at 9:30, etc. The Bully has everyone show up at the same time. The insiders often (but not always) get their cases heard first, and they get out quick. But for the rest of us, what should take 15-30 minutes ends up taking 2-3 hours.

It should not surprise readers to hear that The Bully is not well liked. Even the insiders dislike him, as he will sometimes turn on them. We'll see if this matters when he comes up for reelection.

More profiles to come. A brief preview: The Fixer, The Meal Ticket, Snidely, The Slob .... Stay tuned. :-)

A new kick for the Albany Lawyer blog

I had an idea in the last couple days. To make this blog more interesting, I'm going to start doing some profiles of lawyers and others from the Albany area (and by that I mean the greater Capital Region). The profiles will not identify the person, and along the way I may create some entirely fictional profiles. Some profiles may be blends. Some profiles will be flattering. Others will be less than flattering. I will consistently make an effort to obscure the actual identity of the person profiled, though those who know that person might figure it out -- but then it will not be new information to them.

First up .... The Bully.

Life as a lawyer in Albany

As for the whole life as a lawyer in Albany thing (wasn't that the original purpose of this blog?), we expect to have our first associate starting in early August. This should free up some time for me to see my family more, get web work done (I've badly neglected the Daniel Cady website), and maybe get back to having a hobby. Regular people have hobbies, right?

Most likely I'll start doing Tai Chi and Kung Fu again. I'm in terrible shape now. I did Tai Chi and Kung Fu for a couple years and it was really good for me. For those who don't know, Kung Fu is really just ballet with a cool name, while Tai Chi is Kung Fu done really, really slow. Okay, I'm kidding, but sometimes it does seem like it. I could do other kinds of exercise, but this stuff is actually fun.

If you're into this stuff, Albany is actually a great place to be. The Capital District Tai Chi and Kung Fu Association is run by Jianye Jiang. This guy is known internationally for Chinese martial arts. He's got a wonderful program with lots of variety, and the price is very reasonable. There are classes that are good for old folks like me, and the Kung Fu is good for young whippersnappers and still allows old folks like me to give it a shot. I'm only 40, so I should stop whining.

It's at 1095 Central Ave, behind Little Anthony's Pizza. When I went it was on Colvin behind Kelty's Iron Horse Pub.

Update on town court website

I should also mention that our traffic court website is doing well. We've got well over 100 courts in the directory now, including all of the New York City traffic courts. We're also very close to 1000 visitors a week. If things go well, we'll have most of the courts in NY done by the end of the year. But I'm always an optimist.

And we've got another law-related site in the works. Hope to have that up and running by the end of the year. More when we get there.

Drug war blog post

I keep trying to avoid mentioning the campaign blog, but since this post is relevant to Criminal Defense, I'll mention it. I posted about how we're wasting money in the War on Drugs. Read it if you're interested.

I've got a criminal topic I want to post on, but there's something still going on in this case and I'll have to wait at least a week to get to it -- stay tuned. :-)

Dish Networks: Consumer griping

We're planning to upgrade our TV setup at home. We have Dish Networks satellite, mainly because I wanted Japanese programming and no one else seems to have it.

So I tried calling the number to do this. It gave me four or five choices, and none of these choices was for upgrading equipment.

So I pressed 0 for an operator.

If you're a company that sells things to consumers, your phone system should never tell a customer that the option they selected is invalid. Pressing 0 means I want to speak to a person. Not offering me that option means you don't value me as a customer. I'm trying to upgrade my equipment, and upgrade the programming as well. This means I'll be going from paying you about $300 a year to maybe $500 or $1000 a year. Or, I could switch to cable and pay you nothing.

With that in mind, doesn't it make sense to have a person answer the phone when I want to speak to someone? I'll talk to someone in India. I don't care. But don't stick me with a computer that tells me my choice is invalid.

And by the way, if you call the Redlich Law Firm (888-733-5299), you will get to speak to a person, 24/7/365. And if that person can't reach me, I'll get a text message on my cell phone and I'll call you as soon as I can. I started the firm with that approach because of past problems like I'm having now with Dish.

Sadly, it's not like cable's customer service is much better.

And how come these companies can't make their websites work better. I can't even login to Dish with Apple's main browser. How much would it cost these companies to make their websites cutting edge? $100K would buy a lot, but these companies should be throwing down $1 million or more. Looks to me like they spent maybe $20K.

Attorney advertising rules and web content #2

I'm still upset about the proposed rules on attorney web content. I'm sending a second letter to the Office of Court Administration about it, and I'm pasting the text of my letter below. I would appreciate any comments.

-----------------


Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004


Re: Proposed rules for attorney advertising


Dear Mr. Colodner:


I write to further explain the concerns I mentioned in my June 20th letter, in particular relating to the Internet. The new regulations, supposedly aimed at TV ads, will harm consumers who use the Internet.

At the moment, legal information on the web includes both lawyer websites and websites controlled by corporations. These corporate-run websites are disturbing. A good example is SWI Digital, a company that has over 50 law-related websites such as PersonalInjuryLawyer.com. Their slick websites do not tell you who is providing the information. They often refer you to an attorney by a form. You submit your information to their website and they refer your case to an unnamed attorney. With attorney websites, you know the source of the information, and you don’t submit your private information into unknown hands.

There are far too many of these corporate sites to list, but examples include LegalFish.com, TixNix.com, DUI.com, DrunkDrivingDefense.com (founded by a lawyer but owned by Legal Brand Marketing LLC), OnlineLawyerSource.com, AllLaw.com, LawInfo.com, LawyerShop.com, LawOnline.com, CasePost.com, LegalMatch.com, InjuryHelpLineAttorney.com, NewYorkLegalHelpCenter.com, YourBestLawFirm.com, Criminal-Defense.us, BankruptcyHome.com, TotalInjury.com, PersonalInjuryLawOffices.com, SelectCounsel.com, New-York-Lawyers-Attorneys.com, AutoAccidentClaims.com, LegalHelpers.com, TotalBankruptcy.com, etc.

That’s only a partial listing of law-related websites that compete with attorney websites. They compete in both the “organic” (unpaid) and paid listings. When people search for attorneys or for legal information on the web, they see some lawyer websites and some corporate websites.

The proposed rules would make impair lawyer websites in this competition. For organic listings, the regulations will make it more difficult for lawyers to “optimize” our websites. Organic listings are generally thought to be the majority of traffic on law firm websites, and this is certainly true for my website. Optimization, known in the web marketing industry as “Search Engine Optimization” or SEO, is a very complex process. The proposed disclaimers will impair keyword optimization by forcing lawyers to include content that will not be liked by the search engines (Google, Yahoo and MSN are the leaders). The record-keeping requirements will be especially difficult for lawyers who frequently update their sites. Some in the SEO community believe frequent updating improves a website’s rank on search engines.

Mandated disclaimers will also confuse consumers, make the sites appear less credible, and effectively ban attorneys from using “pay-per-click” advertising (also known as “sponsored links” or PPC). For someone with a well-optimized site, PPC is not very important. But for others, PPC can be the main source of web traffic.

The vague nature of the regulations will also cast a further chill over attorney websites, as it is unclear what might provoke the wrath of the state bar.

Corporations are not subject to the same regulations, and cannot be held accountable for deceptive content and misinformation. If lawyers have to engage in this competition with our hands tied behind our backs, corporations will dominate the provision of legal information on the web, and consumers will suffer. With lawyer websites, the bar can hold attorneys accountable for deceptive conduct -- without any new rules.

The proposed rules are motivated by lawyer ads on television. I have yet to read a single article about an attorney website that demeans the profession. I have yet to see any explanation as to why these regulations attack attorney web content. Usually government encourages or even requires sellers to provide more information to consumers. Here the court system is perversely discouraging such disclosure.

With all of the foregoing in mind, I hereby request that the rules on websites not be implemented yet. In the alternative, I request a public hearing so that I can be heard on these issues, answer questions about this if those behind the rules have questions, and so that I may ask questions of the people behind the rules, to ensure they know what they’re doing.

Thank you for your attention to this matter.


Very truly yours,
Warren Redlich

Problems with Yahoo continue

My problems with Yahoo advertising continue. See my previous post for more info on the past. After my dissatisfaction with their response about my "search" ads appearing on "content" pages, I contacted customer service to cancel my "LocalMatch" account.

I got an e-mail that said:
"We received your request to cancel your account. For security purposes, we request that you call us to cancel your account so that we can verify your information. Please call 866-YAHOO-SM (866-924-6676) or 626-685-5700 ...."

So I call, go through that whole process (maybe 10 minutes - not too bad I guess). At the end of the call, I'm told they'll send me an e-mail for verification that I want my money back. The e-mail came:

"If you would like to receive a refund for the remaining balance in your account, please respond to this email for verification."

So let me get this straight -- my initial e-mail needed to be verified by a phone call, and now the phone call needs to be verified by an e-mail. I know it could be worse (and I remember how difficult it was to cancel my AOL account some years ago), but why is this company going out of its way to annoy me, and presumably thousands of other customers like me?

Keep in mind that I came into web advertising with a very positive image of Yahoo. They keep eroding that image with a growing disregard for their customers. Shame to see it happen.

Speeding ticket post on my stop wasting money blog

I wrote an article on speeding tickets as a public policy issue on my campaign blog. I don't expect to mention my campaign blog often on this blog, but since the speeding ticket topic is one off the core elements of this blog, I figured I'd mention it.

Why Google is better than Yahoo

I advertise my law firm on Google and Yahoo. By that I mean, if you search for the right words on their search engines, my "ad" pops up in "Sponsored links".

I focus a lot more on my Google ads than my Yahoo ads. Google's ad program (called AdWords) is easier to use and more effective than Yahoo's (called Yahoo Sponsored Search).

A couple times now I have been burned by Yahoo doing something inappropriate with my ads. Today I got a call from someone who had seen me on the web. She said I was listed as an attorney on the directory for Ellenville. I don't even know where Ellenville is. So I did a search for redlich ellenville, and found the site: [something].areaguides.net. If you go to areaguides.net, you'll see that they have "guides" to many different areas.

Well, it turns out that areaguides.net is a Yahoo partner. But to be clear, the caller did not search on areaguides.net. She got to the Ellenville page (probably ellenville.areaguides.net), and there's an ad there for me.

I should be clear about something now. In this kind of advertising, there's both "search" ads and "content" ads. Search ads appear when someone does a search. If you think those words relate to what you do, you pay for your ads to appear on those searches. I find this a very effective form of advertising.

Content ads appear on sites that are "related" to keywords you choose. These ads have two major problems. First, the person who gets to that page is less likely to be looking for what you do. Second, the owner of that page has an incentive to fake clicks on your ads because they're getting a cut of the ad cost. The latter is known as click fraud. Click fraud is virtually zero on search ads, but it's a big problem with content ads.

I have content ads turned off in both AdWords and in Yahoo Sponsored Search. Apparently Yahoo figured out a way to deal with this. They decided that areaguides.net ads are search, even though they're really content ads.

I complained and here was part of their response:

>This partner is actually considered to be part of our Sponsored Search network, rather than Content Match. We understand that is can sometimes be confusing to determine whether a partner implementation is considered Sponsored Search or Content Match,<

Let me be clear about this -- a search ad should appear when someone SEARCHES for something. A content ad would appear on page that contains content perceived as relevant to something. If the user didn't do a search, it's not a search ad.

I spend about four times as much on AdWords as on Yahoo. When my account runs out of money, I will probably discontinue the Yahoo ads. I'm not saying Google is perfect, but they respect their advertisers more. I also think the search engine delivers better results, but that's another topic.