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.
Thursday, December 28, 2006
Monday, December 25, 2006
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.
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.
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.
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.
Friday, December 22, 2006
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.
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.
Friday, December 15, 2006
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.
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.
Saturday, December 09, 2006
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.
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.
Saturday, December 02, 2006
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.
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.
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.
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