ABA Survey on Self-Help Centers

On August 22, 2014, the American Bar Association’s Standing Committee on the Delivery of Legal Services published a report titled The Self-Help Center Census: A National Survey addressing the usefulness of the country’s approximately 500 centers that help those representing themselves in the court system.

Given the ABA’s copyright, however, LPR is unable to provide any of the data or conclusions contained in the report.  But because LPR believes that the availability of assistance to litigants by these self-help centers (generally low-income litigants) is so important, we provided the link to the report above and urge legal consumers to review it.

 

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Attorney Tip #7 – Be Empathetic

Most attorneys will feel empathy for their own when they read a story about a BigLaw partner getting sued for malpractice over a botched patent application.  But LPR challenges those attorneys to see the situation from the client’s perspective.

USPTOsealDebra MacKinnon, owner of Zephyr Inc., sued her patent attorney, Bernard Codd of McDermott Will & Emery, claiming that the patent application he filed on her company’s behalf listed incorrect product dimensions despite being provided with accurate product diagrams, and as a result, other companies are selling knock-offs without having to pay royalties.  According to the August 19, 2014 New York Daily News article, Silicone bra insert inventor sues former lawyer for flawed patent-filing that has cost her millions: court papers, Ms. MacKinnon discovered the mistake when she hired another law firm to sue Victoria’s Secret and others for selling knock-offs of her product.

According to her current attorney, Joseph Gioconda, in addition to the erroneous product description, Mr. Codd waited until the day before the patent application was due to obtain Ms. MacKinnon’s approval for filing the application.

She is not a lawyer or an engineer.  She was paying top dollar to McDermott and relied on them to get it right.

Although new patent lawyers reportedly prepared a revised application, Mr. Gioconda claims that the mistakes in the original application may prevent restoration of royalty rights.  A McDermott spokesperson stated it was “unfortunate” that the client filed the lawsuit, and they are “confident that the firm will prevail.”

In light of what, at this point without the benefit of McDermott’s side of the story, appears to be a straight forward case of malpractice, LPR submits that lawyers should try to see this situation from Ms. MacKinnon’s perspective.  What if you were paying $860 an hour for a well-respected law firm to prepare a patent application with the detailed diagrams you gave them, wouldn’t you expect an accurate patent application filing?  And wouldn’t you expect more than a last-minute request for approval?  And should it be your responsibility, as the client, to double-check that your lawyer correctly described your product dimensions when you supplied them in the diagram specs?  And if this lawyer botched the application and you lost your corner on the market and any royalty rights to the tune of about $6 million, wouldn’t you seek restitution from the law firm in the form of a malpractice case?

Perhaps if more attorneys were empathetic to their clients and tried to see things from their clients’ perspectives, they could view their own attitudes and actions in a brighter light.  More empathy for your clients can result in better attorney/client relationships – and that’s a win-win.

 

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Justice Is Not Always Just – Criminal Court Edition

Twenty-one year old Baltimore, Maryland resident Tyree Threatt was picked out of photo lineup and arrested for armed robbery.  Bail was set at $75,000, which he could not afford.  The public defender’s investigation uncovered that at the time of the robbery Mr. Threatt was in prison on a separate charge (which was soon after dropped).  Shouldn’t that fact have exonerated Mr. Threatt and lead to his release?  Not in this case.

simplebanner_comboAccording to the August 13, 2014 Baltimore Sun article, Man charged with street robbery that happened while he was in jail, Mr. Threatt’s lawyer, public defender Nicholas Cooksley, produced the jail records to the court seeking to have Mr. Threatt released.  The prosecutor argued that the issue should be addressed at trial, and the judge, while reducing bail by $25,000, did not release Mr. Threatt.

It wasn’t until the Baltimore Sun staff questioned prosecutors and the police that the charges against Mr. Threatt were finally dropped and he was released from jail.  Mr. Threatt’s attorney, public defender Garland Sanderson, who handled the initial appearance, summed up what the accused face in the arrest phase of the criminal justice system:

Our system of justice depends on police and state’s attorneys fully investigating cases before someone is put in jail, rather then [sic] an innocent person having to prove their innocence from a jail cell.

LPR applauds the efforts of Messrs. Cooksley and Sanderson, and public defenders everywhere who seek to ensure justice for the accused.  It is unfortunate that despite these efforts, and in the face of irrefutable proof, justice is not always just – even when the lack of justice involves incarceration.

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Justice Is Not Always Just – Traffic Court Edition

Imagine you are riding a motorcycle through twisty mountain roads, traveling well within the speed limit, and when you brake to prepare for a sharp turn, you hit a patch of gravel, your bike slides like it’s on marbles and the back-end comes out.  The end result is a sizable flesh wound to your left knee and a ticket for reckless driving from the state trooper who responded to the scene with the ambulance.

Document1You explain to the officer that there were no road surface warning signs and that in your decades of experience, gravel is usually on the side of the road and on the double yellow, but not in the middle of the travel lane.  And that given the sun/shade from the trees, you could not see the concentration of gravel.  The officer’s response?  That motorcycles come through there all the time and don’t crash.

Now imagine the reckless driving charge is a criminal misdemeanor with a maximum sentence of 12 months in prison and a $2,500 fine requiring you to appear in court.  And imagine that the traffic court is in a small town.  Are the judge, attorneys and police all good old boys?  And if so, will that have an effect on your case if you are from out of town?

Perhaps you believe that your riding was not reckless, that you had taken every precaution.  Will the judge believe you?  Will the judge rule in your favor and against the officer?  Will you need to hire a local lawyer?  Could you really end up in jail for this?

Imagine sitting in the courtroom watching other traffic violation cases where the judge is handing out judgments in mere minutes, and those with attorneys are in the hallway discussing pleas to lesser offenses.  And it occurs to you that maybe justice isn’t always just in traffic cases where the choice is going before a judge who could be buddies with the officer or admitting to a lesser charge when you believe you are innocent.

Would would you do?

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The Supreme Court’s Role In The Judicial System

We stumbled upon Katie Couric’s recent video interview of Justice Ruth Bader Ginsburg in which she addresses (among other topics) her 35-page dissent to the recent Supreme Court’s opinion in the Hobby Lobby case.  And it got us thinking that it may be helpful to legal consumers to understand the role of the Supreme Court of the United States in the judicial system.

Ruth_Bader_Ginsburg_official_SCOTUS_portraitThe official website of the Supreme Court, supremecourt.gov, contains a wealth of information, including an address by Chief Justice Hughes about the Court’s role in the judiciary.  The site also includes information about the Court’s procedures and audio of oral arguments before the Court that are made public at the end of each week the Court is in session.

C-SPAN also has a website that contains information about the Court, supremecourt.c-span.org.  On that site, legal consumers can find judicial interviews, historical information about the Court, and commentary by Supreme Court “experts.”

To truly understand how the judicial system works, one must understand the judicial hierarchy and the Supreme Court’s role.  The above links are a good place to start.

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More On Judicial Transparency

We’ve written a number of times about the benefits of judicial transparency.  In an interview published in the July 2014 issue of the ABA Journal, U.S. Court of Appeals for the 7th Circuit Judge Richard A. Posner weighs in.  Judge Posner is a prolific, well-respected member of the federal judiciary.  His books include Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, and How Judges Think, and he has written a number of articles in journals and popular press.  He is also faculty at The University of Chicago School of Law.

In 2012, Judge Posner wrote an article in the New Republic, titled The Incoherence of Antonin Scalia, which reviewed Justice Scalia’s book Reading Law.  On the heels of that article Judge Posner explains his views on judicial transparency:

Judge Richard Posner at Harvard University - Courtesy of Chensiyuan

Judge Richard Posner at Harvard University – Courtesy of Chensiyuan

I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

But Judge Posner makes clear that judicial transparency is not “airing dirty laundry”:

[I]t’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary.

He believes that judges are good at impartiality (not holding an obnoxious lawyer against the litigant), but they are not good at preventing their own ideology and personal experiences from influencing their decisions.  According to Judge Posner, “[t]hat’s the real danger.”  And he blames the lack of information to make informed decisions (having to rely on the facts presented) for judges falling back on deciding cases based on how they “‘feel’ about the case.”

LPR applauds Judge Posner, and we hope that with the example of a senior, well-respected judge opting for transparency, more judges will follow.  Legal consumers and the public can only benefit from a more transparent judiciary.

Editor’s note: We are happy to report that U.S. District Court for the District of Nebraska Judge Richard G. Kopf, author of Hercules and the Umpire blog, has decided to resume his postings.  LPR blogged earlier about Judge Kopf’s stepping back from the blogosphere after his post suggesting the U.S. Supreme Court “stfu” and the ensuing controversy.  You can read his reasoning in his recent post, “We can easily forgive a child who is afraid of the dark. The real tragedy of life is when men are afraid of the light.”  Welcome back, Judge Kopf.

 

 

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Attorney Tip #6 – Be Upfront

When a client brings you a matter that will likely result in fees higher than the matter’s value, do you advise him/her of that fact?  If you hesitated to respond “yes,” even in the slightest, this tip is for you:

Document4I’ve seen this recycled crap too many times in my career: client is mad about a business transaction gone sour, law firm takes money to help client vent that anger through the legal system, client pays fees that accomplish nothing, and case ends with an angry client and a firm that is indignant about getting its fees paid. It should never happen if you’re giving your clients sound advice.

This comment, by “Jaded,” is in response to the abajournal.com article, Firm sues ex-client over Yelp review that claims firm will ‘take everything you’ve got.’  The article chronicles an attorney/client relationship gone bad.  The client hired the Texas law firm to handle “a simple breach of contract case” with allegedly favorable facts.  The client “let the suit go” after the attorneys billings were higher than the claim value.  The law firm sued the client for attorney fees, and the client posted a negative review on Yelp.com.

“Jaded” posed a number of questions that all lawyers should consider before taking a new matter that may have a questionable cost/benefit ratio.

Why did the law firm accept a case that incurred more legal fees than the value of the claim? This was a particularly unwise decision by someone. Did the firm explain its lack of wisdom to the client before it happened?

He also provided a good tip in these types of situations:

It’s good business practice in my opinion for a law firm to counsel such a client that their assumption [of 100% recovery plus legal fees] is flawed, that their expectation is improbable, and that hiring the firm is probably a waste of resources. At most, a good firm will advise, the client should invest only in a basic demand letter and see what happens next. The budget should be put right on the table. The retainer amount should far exceed the first month’s expected bill, so that the client’s treasurer and maybe other officers will be forcibly put on notice of the true expenses the risk adjuster has committed the company to.

He may be “Jaded,” but his words are wise indeed.  All attorneys should remember that while representing clients is a business endeavor . . .

THE LEGAL PROFESSION IS A SERVICE PROFESSION

. . . and attorneys are service providers.  Attorneys whose ethic embraces these notions are applauded by LPR.

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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STFU? Does Judicial Blogging Harm The Legal System?

Senior U.S. District Court Judge Richard Kopf and author of the blog, Hercules and the Umpire, recently made national headlines for his post titled, Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the post, Judge Kopf addressed the political side of the United States Supreme Court Hobby Lobby opinion and made the following provocative suggestion:

As the kids say, it is time for the Court to stfu.

Richard_G._Kopf_District_JudgeFor those not familiar with the vernacular, stfu means “shut the f_ up.”

In a post that shortly followed, titled Please stopJudge Kopf reprinted an email from a local lawyer urging him to stop blogging because “blogging by judges harms our [legal] system significantly.”  The numerous comments that follow the post raise the question: Does blogging by judges harm the legal system?

LPR has written extensively about the need for transparency in the law.  And we have blogged twice about Judge Kopf’s refreshing transparency and self-awareness.  For the handful of commentators who agreed that the judge should hang up his blog, there were dozens of the judge’s supporters:

  • We [young lawyers] don’t necessarily agree with everything you say, and sometimes I think I am the only one of my colleagues to get your humor, but we all believe that less transparency, less communication, less humanity can never lead to a good thing. The only thing that secrecy and rote authoritarianism engenders is resentment and closeted disrespect. (Anonymous (J. Law))
  • I was in seminary before attending law school, and the processes were remarkably the same: the inculcation of a special way of thinking, a feeling of intellectual superiority, and the desire to keep it all secret lest the plebians see that we are, indeed, merely human. In the church, this has had terrible consequences now coming to light. In the judiciary, the consequences have been comparably devastating. (Randall E. Winn)
  • In my opinion, by blogging your mind and heart on issues removes a big layer of mistrust that the public may hold for the judicial system. Judges are not meant to be infalable. If more judges could only learn from you that it is ok to sound human…. (Heath)
  • I think in modern society, it’s a good thing to be aware that courts are getting it wrong, because you can fix a system that you know is broke, but it’s impossible to fix one where everyone keeps trying to create an illusion of perfection from within. (Kenneth R. Burger)
  • I understand both sides of this argument, and objectors are arguing we should continue with the secrecy for the appearance of impartiality. In some respects it reminds me of the way people treated doctors decades ago. (traderprofit)
  • This critic appears to suffer from the same misperception that characterizes so many that are effectively a part of “the system.” They presume that the public doesn’t know any better. (nobody)
  • Your frank observations are needed and perhaps other Judges will gather the courage to follow in your footsteps. (Jay Kelligesqw)

But commentator E. Hines summed up the best:

As you are aware, I’m not a lawyer or a judge, but I am one of those members of the public about whose sensibilities your correspondent agonizes at such length.

His email is insulting. It insults my intelligence, and it insults the intelligence of my fellow Americans, whether or not they’re legal professionals . . . How does the legal profession expect us to trust a judge who hides behind the sanctity of a secret guild with its unique jargon, entering before us only to issue pronouncements?

So to the question whether blogging by judges harms the legal system, LPR poses that it does not.  And, as the multitude of positive comments indicate, it may be a way to reboot the system in the eyes of the public.

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If It Can Happen To Dan Rather . . . It Can Happen To You

In Chapter 10 of his memoir, Rather Outspoken: My Life In The News, famed news reporter Dan Rather discusses his 2007 breach of contract lawsuit against CBS for removing him from the CBS Evening News anchor chair.  Mr. Rather’s experience with the legal system is a cautionary tale for legal consumers.

110726-F-HS721-308Mr. Rather writes that his removal from the anchor chair was in response to his September 8, 2004 Sixty Minutes Wednesday broadcast about President George W. Bush’s Texas Air National Guard Service and reported “lengthy unexcused absence.”  In an effort to find the truth, Mr. Rather consulted his friend and attorney, Martin Gold, about his legal options:

I started having conversations with my friend Martin Gold, a good and decent man and an excellent attorney, to see what my opinions might be. ‘More than anything,’ I told him, ‘I want to find out what happened. Tell me how this would work.’

‘Expensively,’ he said simply.

Mr. Gold advised Mr. Rather of the enormous cost and time commitment.  When Mr. Rather asked, “Do I have a case?” Mr. Gold had the following response:

Yes, but they will have good lawyers who will mount a vigorous defense. Once you file, they will be relentless. And it won’t just be in the courtroom – it’s possible that they will delve into your personal life, and that of your family. . . . They will harness every ounce of media power they have to make you look bad. Beyond that, they will do everything they can to spend you into oblivion. It’s not that CBS has deep pockets, . . . It’s that they have bottomless pockets.”

But Mr. Rather, after much soul-searching, writes that he was clear on his motivation for filing the lawsuit:

For me, however, the suit was never about the money, and it was never about vengeance. . . . I filed the suit on principle – to find out the truth and to stand up for the importance of a truly independent free press in a democracy.

The lawsuit proved to be most of what Mr. Gold predicted.  “Documents by the tons” were exchanged, which required page-by-page redacting, copying and labeling.  “It cost a fortune.”

But in the end, right or wrong, Mr. Rather did not have a case, and he did not get his day in court.  CBS filed multiple appeals before trial challenging the trial judge’s rulings. Shortly after the trial judge indicated the case was going to trial, the appellate court ruled that because CBS paid Mr. Rather in accordance with the contract, the “pay or play” provision allowed CBS to do so without obligation to “use [his] services or to broadcast any program.”  And with that, the case was over.

Mr. Rather makes clear, however, that he didn’t regret bringing the case.

I was of course disappointed by what happened. Nevertheless, I have never second-guessed myself about the decision to go to court. It took a big whack out of my time, my psyche, and my bank balance, but even so, it was worth it. The suit accomplished much of what I set out to do.

Legal consumers should take note.  As we have stated many times before, litigation is expensive, time-consuming and emotional, and justice is not always just.  It is important to understand that the costs of litigation can outweigh the benefits.  And if you are embarking on litigation to seek the truth of a wrong, be sure the quest is worth the price of the worst case scenario.  Because, as Mr. Rather discovered, the price can be high.

 

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Time To Check Beneficiaries?

LPR does not write about the law, as we are not a law firm.  But the story of a man who reportedly intended for his retirement to be distributed to his four children after his death — which because of a mistake on his beneficiary form didn’t happen — is something we feel compelled to bring to legal consumers’ attention.

TO DOLeonard Smith enlisted the help of financial advisors and attorneys to ensure that his children received his retirement savings upon his death.  After his death, the children discovered that his IRA beneficiary form had been filled out incorrectly.  Rather than listing the children by name and designating percentages to each, the beneficiary form read: “To be distributed pursuant to my last will and testament.”  The children brought a lawsuit contesting the designation.  The result was that Mr. Smith’s spouse of two months received the retirement funds.

In an article titled “Man’s mistake cost his children $400,000 of an IRA inheritance,” certified estate planner Jean-Ann Dorrell offers the following tips:

1) Set aside time at least once a year to update your beneficiary forms. Your beneficiary forms will override your will 99% of the time so it’s important to keep these forms up-to-date and make sure your will and your designated beneficiaries on accounts don’t contradict each other. You should fill out a new form if you’ve had a birth, death, marriage, or divorce in your family. If you can’t find your beneficiary designation form, ask the financial institution for a new one. If you choose to fill out this form online, make sure to print a hard copy for your files.

2) When filling out a beneficiary form, don’t forget to designate percentages next to the names of your beneficiaries. You can also write “in equal shares” if you want the assets to be distributed equally. Also know that writing “per stirpes” which is Latin for “bloodline,” will make sure that only someone in your bloodline will get your assets.

3) If the institution where your money is held changes its name or merges with another bank, fill out a new form. Forms with old institution names may not be valid and the banks won’t go out of their way to tell you.

4) Keep hard copies of your beneficiary forms, including your “payable on death” forms and your “transfer on death” forms in your emergency file. If all of these forms are in your account online, keep hard copies on hand because computer systems change and the forms might be hard to track down, especially if the bank has merged or changed names.

These are great tips indeed, but the highlighted part of Ms. Dorrell’s next tip is near to LPR’s heart:

5) Consider hiring a certified estate planner who is licensed in your state. Many financial planners and attorneys who do not specialize in estate planning can make mistakes when filling out forms because of state-specific rules and laws, or just plain lack of experience.

The moral?  Be informed so you can protect yourself and your loved ones.  Ask lots of questions and think critically about how present decisions can affect future events.

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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