Wednesday, August 26, 2009

The Wedding Photo Story

Yes, the Albany Lawyer has a wedding photo story. This has been one of my favorite stories for the past six years, and I finally get to tell it. Some details have been changed to protect the innocent and perhaps the guilty too.

Back in 2003 there was a wedding. A friend of mine was starting his photography business. The bride was an acquaintance and asked him to help. New to the business, he offered to do it for a ridiculously low price (under $500) with only $200 up front. If you've heard the phrase "you get what you pay for", you've got some idea where this story is going.

My buddy did a pretty good job. But he was new to the business remember, and he did make one significant mistake. Not only did his camera battery die, but he had no backup. He got almost everything and took some great photos, but he did miss some bits at the very end of the reception.

The happy couple wasn't happy about that. The groom decided to take an aggressive approach to the situation, using harsh language, and maybe some threats and other kinds of intimidation. Perhaps this was genuine anger, or perhaps it was an attempt to extract a better bargain from my hapless amigo. He also stopped the check for the balance that was owed (or not owed if you take his side).

Well that didn't work. Turns out my friend has some gumption. Having failed at straight-up crass behavior, the groom turned to one of his wedding guests who also happens to be ... a lawyer. We'll call the lawyer Junior.

So Junior disregards Lincoln's famous advice that lawyers should discourage litigation. He sues my buddy on behalf of the bride and groom for $15,000.

$15,000? But they only lost $200. Over the course of the case Junior was never able to explain how he could possibly get any more than $200. Not to me, not to the judge in a conference, etc.

Before I get to the rest of the story, I have to ask (and answer): Why would Junior sue for $15K when the law says $200?

I see two possibilities. First, maybe Junior's not very bright. This is plausible. I'm pretty sure he had little experience with contract disputes. I didn't see much to disprove this theory, but on the other hand I didn't see enough to be sure.

Second, maybe it was deliberate, with the purpose of scaring my friend the wedding photographer. It was working until my friend came to me with the lawsuit shortly after I'd opened my own practice. And so I had my first pro bono case.

I quickly concocted a strategy, reviewed it with my client, and faithfully followed it to the very end. The strategy: Do as little as possible. The rationale was simple - any amount of work done would cost more (in terms of filing fees and attorney time) than the $200 my client might have owed the blissful twosome. Keep in mind that when you take an outside-the-box approach like this, you have to make sure your client's on board.

I prepared and served a short Answer. For non-lawyers, that's the response to the lawsuit. Then, I did nothing and waited.

Apparently Junior had more important things on his plate than a $200 civil case, so he didn't do much of anything either for some time. Eventually he got around to serving discovery demands. This is when one side asks the other to provide documents, evidence, and more.

I put the demands in the file, and waited ... and waited some more. Junior probably sent me a letter somewhere in there and I put that in the file too. And waited.

If I remember correctly, at some point the Court scheduled a conference. I told the judge the case was a waste of time but didn't say much else. Junior didn't have much to say either, other than his dissatisfaction with my non-response. So the judge told Junior to make a motion.

It took him a little while, but he did make a motion for an order of preclusion. I did not oppose the motion. The judge signed the order.

If you're wondering why I didn't respond to his demands, it's because an order of preclusion is the standard remedy - it precludes us from offering evidence regarding the things demanded. We didn't have any particular evidence and didn't intend to prove anything anyway - it's Junior's job to prove his case.

In other words, a few years have gone by and Junior has managed to win a meaningless motion. And what does he do now that he's won the motion? Nothing. For a year and a half, nothing happens.

Then that there judge schedules another darn conference. I made an oral motion to dismiss for failure to prosecute. The motion was denied, conditional on them filing a "Note of Issue" by X date, when we'd have another appearance. A note of issue is required before the Court will schedule a trial, and there's a filing fee of $70 or so. Junior wasn't sure if his client would pay the fee.

I called the Court the day before X to check and the note of issue hadn't been filed yet. So I go to Court ready to ask the Judge to dismiss. Oops ... Junior had filed it that morning, rendering the appearance unnecessary - without letting me know. So I wasted a trip to Court. Thanks Junior. I'm going to remember that one.

Now the judge schedules another conference so we can set a trial date and/or see if we can settle this thing. At the conference the judge finally asks Junior how he can get more than $200 on a case like this. The answer was less than compelling, though I think he mentioned the Rocanova case which has to do with punitive damages between an insurance company and a customer. Not even close Junior.

Meanwhile, I demonstrated a bit of pique and the judge told me not to make this a pissing contest. I told him it already was a pissing contest. Fortunately the judge has known me for a while and tolerated my attitude.

As for settlement, they wanted not only their $200, but also all the negatives. The judge seemed to agree with me that they couldn't win the negatives at trial, but he asked me to check with my client anyway. The client rejected it. So we finally had a trial date ...

It was nearly six years after the suit was filed. In the meantime my client had moved to a distant state. He's not coming for the trial. If they did actually win at trial and get a decision for $200, they'd have a heck of a time collecting. That's one reason delaying a case is not good for the plaintiff.

So I showed up for trial. My client also found a friend who had been at the wedding. She showed up as a witness ready to testify about what a good job he'd done, and how minimal the problem was. Junior showed up too.

Fortunately for us, the bride and groom did not show up. Junior had to explain the efforts he'd made to get them there, in the process revealing that he'd never talked with the bride. Um ... that's one of your clients there buddy boy. It's also possible, per the witness, that the bride is no longer with the groom. Six years is a long time.

The judge finally dismisses the case.

I'm quite pleased with the strategy. Aside from a few trips to Court there was very little work involved. The paper file is smaller than some of our traffic cases. And, of course, the case is resolved. A happy client means a happy lawyer. Plus I've got this wedding photo story I can tell.

As for Junior, well, I hope he learned something from all this.

Albany Lawyer Ages

I guess it had to happen after I turned 40 a few years ago. I'm really starting to notice the aging process.


We attended an intern's "Kegs on a Deck" party. Some attendees did "keg stands". This is a handstand (supported by others) on top of a keg while drinking from the tap. I did not do a keg stand but I did eat three chili dogs - which is probably worse. They did taste really good though.

I'm getting used to MRI machines. Had my carotid scanned today. Here's a tip by the way. It helps to find something to do while you're inside the donut so that you don't feel trapped. I think about my breathing and, thanks to all the Tai Chi and Qi Gong, visualize the chi flowing around my body. I also twiddled my fingers, and got a surprising amount of entertainment value out of that. I'm still laughing about my brain MRI result - negative.

I'm getting used to having my prostate checked too. That ain't right. On the plus side, it apparently shrank since the last one.

My body is deteriorating. I've had this chronic lumbar spasm for more than a year. Fortunately it's been better lately. I've had bad knees and ankles for a long time and recently noticed significant atrophy on one side at the knee. We'll see what my favorite orthopedist has to say in a couple days. A few weeks ago I played basketball with a friend. My heel still hurts from it. One more thing to discuss with the doctor.

I'm finally going to start taking a baby aspirin regularly, and am even thinking about whether to start taking a statin. I have never taken any medication on a consistent basis and have been reluctant to change that. If I overcome that reluctance, is that a sign of maturity or giving up? I posted a poll on Facebook about statins: Statin Poll.

I have life insurance. Not just one, but two policies. My wife still tells me I'm worth more alive. I'm pretty sure she means it.

I used to have nightmares where I was attacked. Being an outrageous optimist, I always won. But growing up has changed me. Now in my nightmares my kids are attacked. The optimism still prevails - I always save them. Maybe when I'm older they'll save themselves.

I bought a PlayStation (PS3) for my birthday a couple years ago, but I almost never play the games. A friend suggested a game for me - Kill Zone or something like that. It arrived a couple months ago and I still haven't opened the package.

During college I lifeguarded at pools in the summer. I was bored and wanted to do things. Now I am very busy with two businesses, politics, and family stuff. For vacations I sit by a pool and don't want to leave.

I'm older than some of the judges I see in Court.

I was going to buy a Porsche 911 and chose a Honda Accord instead because it's more practical.

Winter used to be fun. Now it bothers me.

Maybe the funniest thing is when I complain to people in their 70s. Apparently I don't know the half of it. But hopefully I'll find out.

Sunday, August 23, 2009

A Good Lawyer: Why Experience Matters

A conversation with a law student led to something coalescing in my mind about good lawyers. Experience matters when you hire a lawyer. I'm biased, but I think trial experience is critical. Of course it's most important when you need a trial lawyer. Even for other kinds of law, it can still matter. A good lawyer has to understand what happens when something goes to court.

When a new case comes in, a lot of lawyers just think about how they're going to settle. For criminal cases they think about how to get a good deal from the prosecutor. For personal injury they think about how to persuade the insurance company.

That kind of thinking may be fine for some cases, but you never know when the deal won't happen. What do you do for your client then?

When I get contacted about a new case, I start thinking right away about how I would present that case to a jury and how a jury would look at it. And right from the beginning I talk to the client about the whole process. That way the client knows what to expect and they're not surprised when it takes time.

There's some game theory in being a trial lawyer. It's not only how I'm going to present my case to a jury. It's often more about how the other side will present theirs, with some interaction between how you'd react to their story and their reaction to yours, etc.

In my criminal defense cases, sometimes you see a case where you know the prosecutor is going to have a tough time selling a jury on their story. One of my trials involved a DWI where the guy was sitting in his apartment parking lot listening to the radio with the engine running. Yes, technically under NY law, a judge might not dismiss it. But how does the prosecutor explain it to the jury? I know how I explained my side: "My client is charged with DRIVING while intoxicated. He wasn't DRIVING!"

The prosecutor in that case never figured out how to sell it (because it's an awfully hard sell) and the jury said "not guilty" - faster than usual. That case should have settled. My client, whose BAC was 0.32 (four times the legal limit - that's close to dead), would have taken a reduction to DWAI. But they wouldn't agree because his BAC was so high. How many lawyers would have taken that case expecting to settle and then not known what to do when the prosecutor said no? Many of them would have told the client to plead guilty to a DWI.

We have a case going right now where our disabled client was injured when someone else slammed a car door on him. It's a "good injury". I figured it would settle quick and easy. But the insurer made a lowball offer. There are plenty of lawyers who would sit on the case for three years, hoping the offer would get better, because they don't like filing suit. Or they'd tell their client to take the crappy offer. We sued it. If they're going to make an offer that low, there's no point in waiting.

Going beyond litigation, trial experience matters in other areas too. Suppose you need a lawyer to write a contract. What would a good lawyer think about when working on the contract language? It should be this: What will this language do in court if there's a problem? A lawyer with no court experience will have trouble answering that question. Maybe they read what appellate courts have said about similar situations (which is important too), but that's not the same as being in the trenches.

Whether it's contracts, wills, corporate formation, lobbying and more, it all comes down to how it will play in court if something blows up. It could even be tax shelters - how many UBS clients are wondering why their lawyers didn't tell them the bank could make a deal with the feds? A good lawyer thinks about those things in the course of their work, and explains it all to their clients.

Saturday, August 22, 2009

Joel Dykstra

Interesting website I happened upon - it's about a guy from South Dakota who ran for the US Senate: Joel Dykstra. Love the name - we were big Lenny Dykstra fans back in the 90s when he played for the Mets.

The two are probably not related, though the name suggests they have Dutch ancestry. Lenny has had some issues recently but we're still rooting for him. Meanwhile, Joel Dykstra is apparently still serving in the state legislature despite his Senate loss. Now he has a legacy campaign website.

Tuesday, August 18, 2009

San Bernardino Superior Court

Not sure why, but it seems like a lot of people are searching for the San Bernardino Superior Court. Maybe it's because of the corruption scandal in the Assessor's office: LA Times story. But we think they just write a lot of speeding tickets in the traffic court. Maybe that's a revenue measure?

For more info on the topic, see California speeding tickets and California Traffic Courts.