One Judge’s Take on “The Secret Life of Judges” and Judicial Bias

In 2006, former Chief Judge of the U.S. Court of Appeals for the Second Circuit, Dennis Jacobs delivered a lecture at Fordham Law School titled “The Secret Life of Judges.”  In his lecture, Judge Jacobs described “the judicial mentality,” as “a habit of mind that . . . amounts to a serious and secret bias.”

This lecture is about bias, the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them . . . .

He noted that judges have an internal bias for attorney-based procedures and solutions and believe that the adversarial system yields the best results.  But Judge Jacobs acknowledged that judicial bias in favor of legal complexity often fails to consider the transaction costs for litigants in the “ceaseless turning of the legal machine.”

Considering how many of us [judges] conscientiously think hard about the economic consequences of the outcomes we adopt, it seems strange that our cases reflect an almost complete disregard and ignorance of the costs, uncertainties, and delays inflicted by the judicial process itself.

Admitting that “judges tend to assume that the adversary process assures a fair fight and a just outcome,” he noted that “adversariness” does not assure fairness.  He opined that a problem might be the lawyers’ (including judges) lack of respect for non-lawyers.

In the end, Judge Jacob questioned how to correct judicial bias and raise the legal profession, which he described as  a monopoly that is self-regulating.  He posed the following response:

Judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust . . .

This is one judge’s opinion.  Would other judges agree?

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“Is Your Lawyer’s Bill Too High?”

We have written about HALT.org (Help Abolish Legal Tyranny) in previous posts and its work for transparency in attorney discipline and reporting on state bar associations’ secrecy in the handling of attorney ethics complaints.  HALT also has a number of self-help brochures on its website.  Of particular interest is HALT’s Is Your Lawyer’s Bill Too High?  How to Avoid (and Resolve) Fee Disputes.

Questioning an attorney about your bill isn’t easy, but you should not pay inaccurate or inflated charges. If you think your lawyer is charging too much, you’re not alone. State and local bar associations across the country consistently report that fee disputes are among the most frequent complaints they receive against attorneys. This brochure contains a lot of useful information about interacting with an attorney on billing procedures and fee disputes.

The brochure addresses three types of fee arrangements (flat fee, contingent fee, and hourly fee) and offers ways to avoid fee disputes (find the right lawyer, discuss fees in advance of retention, and get a signed fee agreement).  HALT also advises consumers to confront billing problems immediately, since the issue could be “a simple math error or an unintentional mistake on a bill.”  According to HALT, addressing billing issues promptly allows the attorney to resolve the issue and can salvage and fortify the attorney/client relationship.

HALT also details “Sources of Fee Disagreements”:

  • Overstaffing – Too many lawyers to a case or project just to fulfill billable hour quotas.
  • Uncompensated staff turnover - If you discover that the lawyer handling your case has moved on, you shouldn’t have to pay extra to reeducate a new lawyer about your legal matter.
  • Unnecessary research – If you are being billed for research in an area the firm already claims expertise in, question it.
  • Redundant expert witnesses and consultants – Don’t hesitate to ask why more than one (or two) expert witnesses are needed, if that’s what your lawyer proposes.
  • Uncontrolled expenses – Keep a lid on expenses by asking the lawyer to anticipate in advance what expenses will run and by including a stipulation in your agreement that you cannot be charged over the estimate without prior written approval.
  • Excessive overhead costs - Clients should challenge charges that obviously cover a firm’s routine overhead.
  • Deluxe travel and entertainment - Specify what air class you believe is appropriate. . . Make clear in advance what you will not pay for. Some examples include in-room movies, bar bills, any expense over $5 without a receipt, and laundry and dry cleaning.
  • Bill padding or overbilling – Unfortunately, some lawyers intentionally try to rip off clients by padding their bills. . . . if your lawyer charged you for more phone call conversations in a month than you have actually participated in, you need to challenge it. You should also raise questions if you are being charged at your lawyer’s hourly rate for work that is obviously clerical, or for items that seem vague.

The HALT brochure raises real-world billing issues and possible resolutions.  Legal consumers should take note.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Judge’s “Cautionary Tale” About Online Legal Forms

Last week the Supreme Court of Florida issued an opinion interpreting a will prepared using an online form.  The opinion specifically addressed how property acquired after the will was signed was to be distributed in the absence of a residuary clause (a catch-all provision) in the will.  Even though it appeared that the deceased had intended for the after acquired property to pass in accordance with the will, the Court ruled that the after acquired property must pass to the heirs as if there were no will.

imagesThe deceased, Ann Aldrich, prepared and executed a will using an E-Z Legal Form in 2004 leaving all of her property, which was itemized, to her sister and further providing if her sister predeceased her, the property was to be distributed to her brother.  Ms. Aldrich’s sister died three years later and left Ms. Aldrich land and cash.  Then Ms. Aldrich prepared a handwritten note intending for it to be an addendum to her will, leaving the newly inherited property and cash to her brother.  The “addendum” was signed only by one witness, which was ineffective under Florida law.

When Ms. Aldrich died, her nieces contested the will and the “addendum,” arguing that the will failed to include a residuary clause that would have included the after acquired property in the bequeath to Ms. Aldrich’s brother, and therefore it should be distributed under Florida intestate law, which would include them.  Ms. Aldrich’s brother argued, among other things, that Ms. Aldrich’s intent was clear that he should receive the after acquired property and cash.

The Court, supported by a brief filed by the Real Property Probate and Trust Law Section of The Florida Bar, ruled for the nieces, finding that while the will was a clear indication that Ms. Aldrich intended to leave all of the listed property to her brother, the will made no mention of the after acquired property.  And since there was no residuary clause or a general bequest in the will and the “addendum” was ineffective, Florida law required that the after acquired property be distributed according to Florida intestate law.

One justice, writing a concurring opinion, believed this to be a cautionary tale, stating that the phrase “penny-wise and pound-foolish” came to mind.

In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form. I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.

Legal consumers should take note.  Caution and foresight are essential for those who choose not to engage an attorney when entering the legal arena.  This case is but one example of how a seeming simple legal matter can be more complicated than perceived.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Should Clients Start Acting Like Consumers?

On this blog, we often refer to clients as legal consumers.  Clients who are paying for services provided by attorneys are consumers of legal services.  Hence the term “legal consumers.”  Inherent in that terminology is the concept that the legal industry is indeed a marketplace.  Perhaps it should be approached as one.

Document2The medical field has begun a trend that has existed in the legal field for some time.   The March 2014 edition of the AARP Bulletin reports on doctors bidding for surgeries in an article titled Now You Can Get Bids for Surgery. According to the article, there is a website called MediBid.com where doctors and facilities can bid for patient services.  The article notes that MediBid advises patients to research the doctors bidding on services just as they would any potential new provider.

Of particular interest is what MediBid’s chief financial officer, Chris Hobbs, said about the benefit of patients acting like consumers:

When patients start to behave like consumers, prices come down.

Can the same be said of the legal arena?  When clients start to behave like consumers, will legal prices come down?  We believe so.

While there are a number of bidding sites for legal services, and there have been for some time (see Susan Cartier Liebel’s post Will Legal Services Bidding Sites Gain (Real) Traction?), it has not become commonplace.  But regardless of whether clients use bidding sites to obtain cost conscious legal services or employ other methods, perhaps there is wisdom in Mr. Hobbs’ statement.

Perhaps when clients think like consumers, they will approach the legal arena in a capitalist frame of mind, constantly assessing the cost/benefit of the legal matter and all steps along the way.  And perhaps by thinking like consumers, clients will be better equipped to interact with their attorneys on a more level playing field.  And a level playing field is key to a positive and mutually beneficial attorney/client relationship.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field. Call LPR today for a free consultation – (301) 351-7970.

 

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“Rake” TV Show – Surprisingly Accurate

One of LPR’s followers suggested we watch last week’s episode of Rake, a new legal drama on Fox.  In last Friday’s episode, “Staple Holes,” the lead character, Keegan Dean, leaves his solo practice to join his best friend’s white shoe law firm.  Pacing the sidewalk in front of the new firm’s offices, Keegan rationalizes joining the firm with the help of his long-time assistant, despite anticipating it to be “the worst, most soul-sucking experience of [his] life.”

RAKEWhile Keegan is a somewhat lovable mess of a character, he is a brilliant lawyer who is particularly skilled at the art of cross-examination.  On his first day at the firm, Keegan is assigned as fourth chair on the firm’s long-running corporate trial.  When the lead counsel (Keegan’s best friend) is hesitant about conducting the cross-examination of a key witness, Keegan is asked to do it the following day.  Without any preparation, and after a night of debauchery, Keegan goes on a fishing expedition on cross-examination and ultimately cracks the witness and the case.  Returning to the firm with champagne in hand to celebrate his wrapping up the case in such short order, Keegan is greeted with disdain for having wiped out the firm’s financial budget.  The managing partner chastises Keegan because the firm was relying on the revenue the case would generate slugging along for the remainder of the year.  How realistic is this storyline?  Surprisingly accurate.

The episode raises a number of real-life issues that seem better suited for the make-believe world of TV:

  • Although it is unbelievable that a senior partner in a white shoe law firm would have performance anxiety about conducting a trial, it happens more than one would expect. Because of the tendency of most high value cases (multi-millions and billions) to resolve outside of court, many high-priced lawyers have rarely seen the inside of a courtroom and many lack extensive courtroom experience.
  • That there are four (or more) lawyers appearing in court for the firm’s client is often routine in large cases.
  • After the lead attorney asks the judge to reconvene the next day because he is unprepared to cross-examine the witness, the judge questions why four lawyers billing $600/hour aren’t prepared, but then recesses for the day.  While judges will often chastise attorneys for not being prepared, usually they force the attorney to go on.
  • Truly skilled trial attorneys can successfully try a case with little preparation.
  • Law firms are businesses that operate on budgets, and when a case resolves earlier than expected, that’s a bad thing for the firm’s bottom line, and firms try to avoid it. It is in the law firm’s best interest for matters to slog on, as illustrated by the firm’s response to Keegan’s “good news.”

The Rake episode hit on two major issues facing legal consumers.  Attorney competence and over billing.  With respect to competence, you cannot judge attorneys by their appearance.  As illustrated by the show, the well dressed attorney was nowhere near as competent in the courtroom as the disheveled Keegan.  Not all lawyers have the same skills or skill levels, regardless of what their website bios say or how they appear.

As for billings (when cases are not on contingency), the simple fact is that law firms make more money the longer client matters remain active.  For some lawyers, that inherent conflict of interest compromises their ability to put their client’s best interests first. Legal consumers should understand this temptation and remain engaged in their cases to be in a better position to see the signs.

Sometimes TV shows about lawyers and law firms are a lot of fluff and detached from the real law firm world.  This episode of Rake is not.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Finally . . . A Legal Reality Show!

For some time we have been lamenting around the water cooler that there is no reality show to educate legal consumers by showcasing different legal situations and ways to resolve them, much like the show The Doctors.  What a great resource a legal reality show would be for legal consumers — being able to learn about the law and the legal process, and perhaps one’s own legal issue, by watching legal matters play out on TV.

LegalizerWell now, finally, there is a legal reality show in the works.  According to the americanbar.org website, GRB Entertainment, a Los Angeles production company, is working on a show that is based on the BBC show The Legalizer.  The Legalizer is billed by the BBC as a “consumer series in which barrister Gary Bell QC helps claimants as they take their cases through the small claims court.”  Although the first episode was long and at times repetitive and hard to watch, we learned quite a bit about pursuing a claim in The Royal Court of Justice.  Hopefully GRB’s show will be instructive and gripping.

Jean Shi, GRB’s Vice President of Development, stated that the yet-to-be named show will have a host who will discuss legal options with individuals and guide them through the legal process.  She described the show as educating the participants on their options rather than giving legal advice:

The host will look at the whole picture and advise individuals on their rights and legal options and what steps they must take to get justice.

The show sounds promising.  Even if one has or will hire an attorney to handle a legal matter, legal consumers should be as educated as possible so they can understand the process and their lawyer’s advice in order to make informed decisions.  LPR applauds GRB for providing this much-needed service.  We’ll be watching!

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Legal Consumer Tip #6 – Contract Terms Are Binding

Read all contract terms — you will be bound to them.

While this oft-stated advice seems simple enough, many legal consumers don’t read all contract terms before signing, and even fewer stop to think about how the terms will play out in different circumstances.  It is important to understand that when an unaccounted-for circumstance presents itself after the contract is signed, it’s almost always too late to alter the terms without mutual consent.

image-1The father of a law school student recently learned this lesson the hard way when the New Jersey appellate court ruled against him in an opinion dated February 20, 2014.  The father had entered into a divorce agreement with his ex-wife that provided each pay one half of their daughter’s “post-college higher education costs defined as tuition, room and board, books and school fees, with certain conditions.  When the daughter, who was estranged from her father, enrolled in a top-tier law school, with no financial aid available, the father sought to nullify his obligation to pay under the contract.

Legal consumers should note the reasoning in the Court’s opinion as it dismantles the father’s arguments one-by-one, interpreting the language of the divorce agreement and comparing it to the father’s arguments.  For example, the father argued that the daughter’s enrolling in law school three years after college relieved him of his obligation to pay because the agreement afforded her only two years.  The Court disagreed, explaining that the “hiatus (1-2 years)” language in the agreement was “neither as rigid as father contends,” nor was it a condition to the father’s obligation.

The Court’s ruling on the father’s third argument illustrates the need to think long-term when entering into a contract.  The father contended that the agreement should be interpreted as implying that he would not be obligated to pay if he and his daughter were estranged.  The Court noted that they were estranged when the father signed the contract, and that if he wanted a relationship to be a condition of his obligation to pay, that term could and should have been included in the agreement.  The Court’s rulings on the father’s two other arguments are also instructive.

The bottom line: Legal consumers should ask themselves before signing on the dotted line how each term of a contract will operate in the future and whether there are any circumstances that would require different language or additional terms.  Contracts are binding, so read carefully and consider what could happen down the road.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Council for Court Excellence – A Great Resource for Legal Consumers

The Council for Court Excellence (CCE), the “moving force” behind the “one day/one trial” jury duty system in the D.C. Superior Court, is a nonprofit organization formed in 1982, that “works to improve the administration of justice in the Washington metropolitan area and in the nation.”  CCE’s work includes a number of initiatives that help legal consumers gain better access to justice.

Logo courtesy of Council for Court Excellence

Logo courtesy of Council for Court Excellence

CCE’s initiatives in the areas of criminal justice, children in the justice system, civil justice, and community education and access to justice are accomplished by:

  • Identifying and promoting justice system reforms,
  • Improving public access to justice, and
  • Increasing public understanding and support of our justice system.

As part of their work, CCE has published a number of community education booklets that explain, in a straight forward way, certain judicial system processes and how to’s on navigating many of the different courts.  These booklets, almost all of which can be downloaded for free on CCE’s digital library, include the following titles:

  • Community Guide to the Courts
  • Compliments and Complaints Guide
  • When Someone Dies: A Non-Lawyer’s Guide to Probate in Washington, DC
  • Personal Affairs Record Book
  • Guide to the DC Juvenile Justice System
  • A Victim’s Guide to the DC Criminal Justice System

The Community Guide to the Court, as an example, introduces legal consumers to the DC metropolitan area “state” courts and the federal courts, and it provides a useful outline of the procedure for “typical” matters in civil, criminal and juvenile courts.  There is also a glossary of terms to make the “legalese” understandable.

CCE is doing much-needed work to improve justice.  The information on its website and especially in these booklets is a great resource for legal consumers indeed.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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The Client’s Paradox

In today’s times when people need a lawyer to do almost anything, the choice of which lawyer is very important.  But as the number of lawyers to choose from has increased exponentially, the choice has become infinitely more complex.  A similar “paradox” is the subject of an article about certain financial professionals in the most recent issue of Worth magazine.

ParadoxIn “The Investor’s Paradox,” hedge fund analyst Brian Portnoy detailed four “questions to ask before choosing a fund manager.”  These questions are directed toward investors choosing whom to trust with their money.  But these questions are also good examples of questions to ask when hiring a lawyer — simple, straight forward, and brutally honest.  After all, you are choosing whom to trust with your confidences, your problem(s) and your money.  Mr. Portnoy proposes the following questions:

1.     CAN I TRUST YOU?

Citing Bernie Madoff, Mr. Portnoy explains that one bad investment can be devastating to an investor’s portfolio, and that “operational due diligence” is required.  This is equally true about an attorney’s representation.  If your attorney, who holds him/herself out as an expert, files a lawsuit for you, takes it up to trial and the judge determines he/she failed to allege the correct law and dismisses your whole case, that is what Mr. Portnoy would call ” a bomb [that] can ruin” you.  So, before you hire an attorney, you should ask him/her or yourself, “can I trust you?”

2.     WHAT DO YOU DO?

Mr. Portnoy suggests that starting the conversation with this question and asking follow-up questions can help an investor learn the “core investment expectations for the fund,” and possibly learn the risks that fund manager is taking.  Likewise, when meeting an attorney for the first time, ask what they do (i.e., what kind of law do you practice?) and a series of follow-up questions so you can learn more about his/her core work expertise, experience, and ethic and the risks he/she takes.

3.     ARE YOU GOOD AT YOUR JOB?

With this question, Mr. Portnoy advises investors to inquire whether a fund manager is skillful.  He advises that a “satisfying arrangement” is more than the numbers, it is more the “social engagement of managing expectations.”  In other words, “skill is about keeping one’s promises.”  Determining whether an attorney is skillful is incredibly important, and his/her response to this question, especially his/her demeanor, can tell you a lot.

4.     ARE YOU THE RIGHT FIT FOR ME?

This is the first question Mr. Portnoy suggests investors should ask themselves: “What is my objective?”  This is also a question that every client needs to ask him/herself.  Your objective should be ever-present in your mind when thinking about hiring an attorney.  If you want, or expect, that a matter will go to trial, then you need to hire an attorney with credible trial experience.  Nothing is worse than barreling to trial with an attorney at the helm, only to discover that he/she is inexperienced and/or afraid to go to trial.

Some of these questions might be difficult to ask an attorney, but they should at least be kept in mind and considered as part of the hiring process.  Hiring a lawyer today can indeed be paradoxical.  The more informed you are the better.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Law Firm Refunds Fees . . . Voluntarily!

Imagine you hire a high-end law firm to handle a dispute for you.  The firm handles the matter to your satisfaction and, while the bill seems high, you willingly pay the fee.  Now imagine several months later you receive a check from the firm with a letter explaining that, after review of the closed matter, the firm discovered that you were overcharged.

INTEGRITY LAW FIRMHard to believe?  

Well . . . this is a true story.

Receiving a refund of fees after challenging an attorney’s billing is one thing, but a firm that reviews billings from closed cases for possible overcharging, now that’s unique.  We suspect that a number of you are thinking:

I’d hire that firm!

For many clients, just the thought of approaching their attorneys to challenge the billings is stressful.  Will the attorney be insulted?  Will he/she retaliate or be passive-aggressive going forward?  Will he/she charge for discussing the billing issue?  The prospect seems daunting to many.

This legal consumer-friendly action is to be commended.  It would be great if all law firms engaged in this after-the-fact (or during-the-fact) billing review.  And, it would be even better if law firms, especially the large firms, had customer service departments to address client concerns about billings and other issues.  Approaching someone trained in customer services would surely be more welcoming and client-friendly.

Law firms big and small should take note.  A law firm that is honest enough to realize that sometimes clients are over billed, and that has the integrity to refund the overage, would be in great demand indeed.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

Posted in Billing | Tagged , , , , , , , ,