Tag, You’re Not It: Notice by regular mail isn’t notice

usps_priority_mailThe law confuses the general public and invites distrust, including assumptions that it relies on arbitrary technicalities to facilitate manipulation in favor of the connected, powerful, or wealthy.  People expect the law to use common sense and reach “right” conclusions.  They also expect that the relevant “facts” and applicable “law” are obvious and indisputable, and that there is one correct result or a finite solution.  Unfortunately, human judges and juries, as well as lawyers trained to fiddle with the law and facts, all conspire to produce the infinite variety of anecdotes of injustice that fuel the popular confusion and distrust.

Here’s a tiny example of how even a basic idea — that employers need to give employees notice of important rights and deadlines — can get mighty complicated and trigger lots of slow, expensive legal proceedings.  There doesn’t seem to be any question that the employee was actually told what she needed to know — but how she was notified has become the technicality that might grant her more benefits than the law literally would otherwise allow. Continue reading

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Watching The Watchdog: State ethics committee member steals $3 million

dog tail chaseWe’ve noted before the frequency of problems with lawyers who deal with the elderly, or anyone who needs a guardian or has an estate that needs to be watched for them.  Older people often have substantial assets and may have trouble keeping an eye on them.  They are also targets for all sorts of schemes, including schemes run by lawyers they have known and trusted for decades.  We also see overbilling by these lawyers, whether it’s due to high rates or improper charges for unnecessary work or even non-legal services.

Here’s another example of how some lawyers can use their connections with the local or state bar to “vouch” for them, even as they are up to no good behind the scenes.  In this instance, a local lawyer was apparently bilking her own clients out of millions even as she took a position on a state ethics committee, by appointment of the state’s Supreme Court. Continue reading

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DIY Criminal Law: Georgia replacing prisoners’ lawyers with legal database

jail receiver

Mark Steinmetz

Picking on unpopular groups, like prisoners, is how some politicians woo votes.   Before every election there is a race to panic the public about non-existent criminal epidemics as an excuse to jack up the sentences, take away judicial discretion, lock people away for decades for trivial crimes (while ignoring thefts of millions or billions, or causing injuries to thousands of victims), punish children and the mentally ill as criminals, and so on — all while trotting out victims as props, then discarding them when the camera leaves.  Our criminal system is a political football — in shape and in practice — but one side is shackled, has no protective gear, doesn’t know the rules, and doesn’t get to appoint the referees.

Once you criminalize every imaginable “bad” activity, strip away as many legal defenses and procedural rights as you can, and jack up the sentences to several multiples of a life sentence, the real challenge isn’t to get support for “anti-crime” measures, but to find some angle that hasn’t already been exploited by some other politician.  Into this anti-criminal gap, the state of Georgia has injected a new idea, apparently predicated on the notion that anyone with access to a law book can do what a lawyer does:  Why fulfill constitutional obligations to provide legal assistance to criminal defendants, pre- and post-conviction, when you can just hand them the lawyers’ books and save the cost of having a licensed professional who understands them provide assistance?  Handing someone the tools of a lawyer is not a substitute for providing an experienced, competent lawyer: Continue reading

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Psychic-Client Privilege: Lawyer-psychic doubles as psychic-lawyer

palm signOne reason why so many clients complain about their legal fees is that, unlike mechanics, plumbers, and doctors, the value of legal services can often be hard to see — it’s ephemeral.  Even the best legal work can look like cutting and pasting of prior work coupled with hours of chit chat, all tied up with some legalistic jibber jabber.  People think that lawyers learn “the law” in law school, which includes a specific recipe for every possible legal question or problem, so they think the “answer” is obvious and lawyers are just conning them to make more money.

Even major corporations and insurance companies who deal with lawyers all the time can have a hard time seeing the value in many legal bills, too.  No two lawyers may cost the same for the same job — even the same lawyer doing more or less the same matter may cost more or less each time. Continue reading

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Chumming The Waters: Florida Bar fights $100 charge to support legal aid

In a cartoon by Bob Mankoff, of The New Yorker, three fish mankoff cartoonconsider whether the world is just:  The large fish thinks the world is just, the middle fish thinks there is some justice in the world, and the smallest fish thinks there is no justice in the world.  All three are right, but only two get eaten.

While we pretend to have a legal system of justice for all, equally available to all, that’s a fiction.  Instead of fixing the problems, some simply deny that problems exist, even to the point of rationalizing why injustice is just part of justice (blaming the victims or “life,” for example).  Another common tactic for injustice deniers is to demand that lawyers, judges, and others pretend that the system is perfect, by repressing objections or doubts, rather than striving to improve the system so it might actually be just.  Maintaining the fiction of justice — justice theater — only compounds the problem by demonstrating that the foundation is flawed, which anyone can see already, thereby undermining public as well as insider confidence that there is, ultimately, a consensus that justice must be done.

There are many problems with the system, but one of the largest, and potentially most remediable with some adjustments, is the impact of money on the system.  With enough money, you can effectively buy a favorable result simply by outlasting and outspending a poorer opponent.  While it is still controversial, the link between affording a lawyer and having any semblance of a reasonable chance in court is well-recognized, especially as a constitutional matter in criminal cases.  Those who try to sabotage such representation because they prefer the injustice of default and technicalities, passing it off as “justice,” are demonstrating their recognition that money (for lawyers) is one hallmark of justice. Continue reading

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Off The Record: Court reporters accused of billing for phantom pages

court-reportering-is-important“Court reporters” are stenographers who take down, more or less verbatim, everything said “on the record” in court or a deposition, for example.  Some use a shorthand machine that prints out a sort of standard, but also personalized, code for spoken words.  Not only do they record what is said, but other notes about who said it.  Other reporters use the “mask,” to cover their mouth while they speak their notes onto tape.  However they record the original events, court reporters typically then transcribe the recording into a text transcript, aided by software these days.  (The software tends to be proprietary and expensive.)  There have been incidents where the loss of a court reporter has created complications in trying to transcribe from their idiosyncratic records.

Back in the days of Perry Mason, many legal and other secretaries, including Della Street, were able to take down dictation, in-office meetings, and correspondence dictation using various styles of shorthand — which has become a largely lost art in the days of ubiquitous recording devices, including videotape and cell phones.

They have to be fast and accurate — especially with fast-talkers, people with accents or speech impediments, arguing lawyers registering objections, technical terms, and so on.  (Usually they make a backup audio recording, but sorting out who is talking from a tape is surprisingly difficult.) Continue reading

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Legal Locusts: Florida ADA posse makes big impression in New Jersey

Some lawyers handle all sorts of legal matters — whether it’s litigation or transactional ada-access-symbolwork — but other lawyers like to do the same thing over and over.  In the extreme, the lawyer may actually find a niche where he or she does exactly the same thing over and over.  This might happen with a certain type of case, like a case against a pharmaceutical company with a defective drug — many TV commercials by lawyers are looking for this sort of cookie-cutter litigation, where the primary variable is whether each client has been exposed to the drug and suffered damages similar to other victims.

Even if the work is terribly repetitive, it can be very lucrative.  The lawyer who is the owner of the Baltimore Orioles, for example, made his money handling asbestos cases for members of local unions.  Most of these operations even use paralegals and secretaries, even contract lawyers and staff, to push the work along, with each case following pretty much the same template — there are even stock doctors for treatment testimony — and the cases almost never go to trial once a few test cases set the template.  We get complaints from some of these clients that they never hear from the lawyer, just staff, and they get a “take it or leave it” offer to settle (often netting them barely enough to pay the lawyer’s fees and mysterious expenses), with the law firm dumping them if they want or need to hold out for more. Continue reading

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Conflict Avoidance: Clients pushing back against advance, blanket waivers of unknown conflicts

boxing ringLawyers are not supposed to represent a potential client unless they can devote their full attention, and loyalty, to that client.  Their personal and professional interest must be consistent with the client’s interest, otherwise they may have a “conflict” of interest.

Typical conflicts include situations where the lawyer has represented the opponent before or even currently, maybe even the same case — like if the lawyer used to work for the firm for the defendant, then gets hired by the opponent.  For a larger firm, with more lawyers and clients, maybe offices in many cities or countries, it can get complicated:  Firms are supposed to screen for conflicts, but names change, lawyers get lazy, and so on, so sometimes conflicts slip through.  With the right precautions, it might be possible to “screen” out the people with a conflict to avoid disqualification, but the risk is that the current lawyers might know confidential information from the old client that, under their obligation to the new client, they might be tempted to release, improperly.  So the problem with conflicts isn’t just the loyalty of the lawyer but the sanctity of privileged information. Continue reading

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Everybody Does It (Wrong): Thousands of wrongs don’t make a right

One thing that tends to cripple respect for the law and legal system is judges who fail to Wrong_Way_Go_Back_Signelevate themselves above the petty flaws that everyone can spot.  At its worst, this behavior tends to stoke popular dissatisfaction, undoing all efforts to earn respect, let alone demand it. Continue reading

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Sales Job: Reminding lawyers to appreciate their customers, er clients

customerserviceLawyers are professionals, or want special treatment as professionals, but at bottom most of them are just in the law business for the money.  Here is advice from someone who makes her living telling lawyers, especially contingent fee personal injury lawyers (the ones who run TV ads and so on), how to land more business.  (Note that she shows no recognition of the need for pro bono services — this is all about getting clients with money or valuable claims to pay a contingent fee.  Anyone else need not apply.) Continue reading

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