Halloween is coming up, so it's time for a ghost story:
Thursday, October 15, 2009
Friday, October 09, 2009
DWI Story: Listening to the Radio While Intoxicated
For a new kick, I'm starting a series of stories about past cases I've handled. This one's a DWI story, from a few years ago. As part of my pattern for stories about cases, some elements will be fictionalized mainly to protect the client. In this case there was a trial, so the truth is really a matter of public record, though practically it would be difficult to find the record if you don't know where to look.
Client was accused of DWI. His BAC (blood-alcohol content) was reported to be 0.32, four times the legal limit. This occurred before the Aggravated DWI law, so it was only the regular DWI charges under 1192(2) and 1192(3). Due to the high BAC, the prosecutor would not agree to a reduction to DWAI. I would not have recommended my client take that deal, but he would have if it had been offered because he did not want the fight.
I would not have recommended it because he was not guilty. The client had an argument with his teen daughter. She wanted him to drive him somewhere. He refused because he was too drunk. To get away from the argument, he went out to the parking lot, got in his car, started it, and turned on the radio. He did not move the car. He was not going anywhere in the car and hadn't driven it in hours. At the time the police arrived, his wife was sitting in the back seat with the door open.
A neighbor heard the argument and called the police. An officer arrived at the scene, and went to the apartment. The daughter answered the door and said there was no problem. Asked where her parents were, she said they were outside.
The officer then went outside, met up with another officer arriving at the scene, and they went over to the client's car. Seeing that the car was running and that he was intoxicated (we did not dispute that), they arrested him for DWI. Yes, my client was arrested for listening to the radio while intoxicated.
So we fought the case. The first major step was the suppression hearing. This is where the prosecution has to show that the stop and arrest were proper. If not, the evidence is suppressed, and that makes it hard to prove anything.
The big issue is whether the police had "reasonable suspicion" for the stop. Well, actually, there's even the question of whether this was a stop. The car wasn't moving.
The police clearly had a reason to come to the door of the apartment - a civilian complaint. But once they talked to the daughter, who said everything was fine, what was the reason for approaching a car sitting in a parking lot? Now I guess if it wasn't a traffic stop, then maybe you don't need reasonable suspicion for a stop. But if it's not a stop, then how can you say the defendant was driving?
But before we get to that, there was another problem. The time for the hearing arrived and there was no police officer. After about 15 minutes the prosecutor said he was on his way. He showed up a half-hour later in an undershirt and gym shorts, looking like he'd just woken up. The hearing went ahead. The officer - I'll call him Officer A - testified that he arrived, went to the apartment, talked to the girl, and Officer B arrived as A was walking out to the parking lot.
After the hearing I argued that it was either a traffic stop without reasonable suspicion, or if it wasn't a stop that he wasn't driving and then the arrest was without probable cause. Some judges find such logic irrelevant to their main job of doing whatever the prosecutor and police want, so suppression was denied. I'm being a little cynical on that. I like this judge very much for a variety of reasons, but I did not agree with the decision.
So we went to trial. It'd take too long to tell the whole trial story, so I'll just hit some highlights. First, my associate knew one of the jurors - said that the juror got hammered at a wedding and then drove home. That's the kind of juror the defense wants. The juror did disclose that he knew my associate.
Second, Officer B testified that he went to the apartment, talked to the girl, and Officer A arrived as B was walking out to the parking lot. They did not get their stories straight. Also, B testified that my client was walking out as he was walking to the apartment. One juror later told me that he thought it was significant B did not notice the client was intoxicated while passing him in the hallway. I didn't see that as important, but that's one of the things about juries - you never know what will grab their attention.
Third, my client and his wife testified well. The prosecutor's cross-examination did not go well. This is a very difficult thing for a prosecutor in a criminal case. They have no idea what the defendant will say and have difficulty preparing.
In a civil case, like our personal injury cases, both sides testify at a deposition well before trial. So the lawyers all know what everyone's story is. When you cross-examine someone, you know the answers to your questions before you ask them. There's a "rule" about cross - never ask a question if you don't know the answer. Much tougher for a prosecutor who doesn't know the defendant's story.
Two or three times during cross, the prosecutor asked what he thought was a winning question and each time the client nailed the answer. He'd explain what happened and the jurors nodded their heads like what he'd said made perfect sense (because he did make perfect sense - helps to have a good client).
Throughout the trial I focused on one thing with the jury - my client was accused of DRIVING while intoxicated. He wasn't driving. It is true that under NY law judges say you can technically be guilty. Judges are one thing, but it's pretty heavy lifting for a prosecutor to sell that one to a jury.
The jury came back with "not guilty" pretty quickly.
I just remembered one of the funnier moments in the trial. During jury selection there was an older man with a strong European accent. The prosecutor started asking him questions and the man said: "You're not going to like me. He (pointing at me) gonna like me." He went on to explain that he did not like the DWI laws. The prosecutor asked if he drinks and drives. "Of course." He provided details too. Asked about the holidays, he said: "I go to family. I have 5 or 6 drinks, put the kids in the car, and drive home. No problem." I wish I could remember that better because there was more and it was hilarious. The whole courtroom was laughing. The prosecutor decided to exclude him from the jury. I consented.
Oh, and one more detail. I was a little worried about one thing. I like trials where the jury is likely to identify with my client. Here it was an all-white and mostly blue-collar jury. My client was foreign, from a continent that is often accused of stealing blue-collar jobs, and he had a strong accent. I'm pleased to report the jury seemed to have no problem identifying with him.
Client was accused of DWI. His BAC (blood-alcohol content) was reported to be 0.32, four times the legal limit. This occurred before the Aggravated DWI law, so it was only the regular DWI charges under 1192(2) and 1192(3). Due to the high BAC, the prosecutor would not agree to a reduction to DWAI. I would not have recommended my client take that deal, but he would have if it had been offered because he did not want the fight.
I would not have recommended it because he was not guilty. The client had an argument with his teen daughter. She wanted him to drive him somewhere. He refused because he was too drunk. To get away from the argument, he went out to the parking lot, got in his car, started it, and turned on the radio. He did not move the car. He was not going anywhere in the car and hadn't driven it in hours. At the time the police arrived, his wife was sitting in the back seat with the door open.
A neighbor heard the argument and called the police. An officer arrived at the scene, and went to the apartment. The daughter answered the door and said there was no problem. Asked where her parents were, she said they were outside.
The officer then went outside, met up with another officer arriving at the scene, and they went over to the client's car. Seeing that the car was running and that he was intoxicated (we did not dispute that), they arrested him for DWI. Yes, my client was arrested for listening to the radio while intoxicated.
So we fought the case. The first major step was the suppression hearing. This is where the prosecution has to show that the stop and arrest were proper. If not, the evidence is suppressed, and that makes it hard to prove anything.
The big issue is whether the police had "reasonable suspicion" for the stop. Well, actually, there's even the question of whether this was a stop. The car wasn't moving.
The police clearly had a reason to come to the door of the apartment - a civilian complaint. But once they talked to the daughter, who said everything was fine, what was the reason for approaching a car sitting in a parking lot? Now I guess if it wasn't a traffic stop, then maybe you don't need reasonable suspicion for a stop. But if it's not a stop, then how can you say the defendant was driving?
But before we get to that, there was another problem. The time for the hearing arrived and there was no police officer. After about 15 minutes the prosecutor said he was on his way. He showed up a half-hour later in an undershirt and gym shorts, looking like he'd just woken up. The hearing went ahead. The officer - I'll call him Officer A - testified that he arrived, went to the apartment, talked to the girl, and Officer B arrived as A was walking out to the parking lot.
After the hearing I argued that it was either a traffic stop without reasonable suspicion, or if it wasn't a stop that he wasn't driving and then the arrest was without probable cause. Some judges find such logic irrelevant to their main job of doing whatever the prosecutor and police want, so suppression was denied. I'm being a little cynical on that. I like this judge very much for a variety of reasons, but I did not agree with the decision.
So we went to trial. It'd take too long to tell the whole trial story, so I'll just hit some highlights. First, my associate knew one of the jurors - said that the juror got hammered at a wedding and then drove home. That's the kind of juror the defense wants. The juror did disclose that he knew my associate.
Second, Officer B testified that he went to the apartment, talked to the girl, and Officer A arrived as B was walking out to the parking lot. They did not get their stories straight. Also, B testified that my client was walking out as he was walking to the apartment. One juror later told me that he thought it was significant B did not notice the client was intoxicated while passing him in the hallway. I didn't see that as important, but that's one of the things about juries - you never know what will grab their attention.
Third, my client and his wife testified well. The prosecutor's cross-examination did not go well. This is a very difficult thing for a prosecutor in a criminal case. They have no idea what the defendant will say and have difficulty preparing.
In a civil case, like our personal injury cases, both sides testify at a deposition well before trial. So the lawyers all know what everyone's story is. When you cross-examine someone, you know the answers to your questions before you ask them. There's a "rule" about cross - never ask a question if you don't know the answer. Much tougher for a prosecutor who doesn't know the defendant's story.
Two or three times during cross, the prosecutor asked what he thought was a winning question and each time the client nailed the answer. He'd explain what happened and the jurors nodded their heads like what he'd said made perfect sense (because he did make perfect sense - helps to have a good client).
Throughout the trial I focused on one thing with the jury - my client was accused of DRIVING while intoxicated. He wasn't driving. It is true that under NY law judges say you can technically be guilty. Judges are one thing, but it's pretty heavy lifting for a prosecutor to sell that one to a jury.
The jury came back with "not guilty" pretty quickly.
I just remembered one of the funnier moments in the trial. During jury selection there was an older man with a strong European accent. The prosecutor started asking him questions and the man said: "You're not going to like me. He (pointing at me) gonna like me." He went on to explain that he did not like the DWI laws. The prosecutor asked if he drinks and drives. "Of course." He provided details too. Asked about the holidays, he said: "I go to family. I have 5 or 6 drinks, put the kids in the car, and drive home. No problem." I wish I could remember that better because there was more and it was hilarious. The whole courtroom was laughing. The prosecutor decided to exclude him from the jury. I consented.
Oh, and one more detail. I was a little worried about one thing. I like trials where the jury is likely to identify with my client. Here it was an all-white and mostly blue-collar jury. My client was foreign, from a continent that is often accused of stealing blue-collar jobs, and he had a strong accent. I'm pleased to report the jury seemed to have no problem identifying with him.
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.
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.
Examples:
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.
Examples:
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.
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.
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