The first time that as a young lawyer I saw a judge make a bad ruling, I stood with my mouth open. Now, not so much. But I do like to see a gifted judge do his job well.
I recently observed a small-claims case in Los Angeles. The case dealt with contracting licenses and bonds. It was complicated. But this judge seemed familiar with the law and competent at getting the facts. Under his perceptive questioning, the case unfolded until his final ruling, which was just.
Good judges can be good in different ways, just like bad judges can be bad in different ways. To focus on the good, some judges are gracious. Some judges know the law, or they are brilliant at finding the law. Some judges are good at bringing parties together. Some judges are lively. Some judges are fair.
I remember a judge in Alhambra. He ruled on a difficult legal motion. He could have framed his ruling as a finding of fact. Findings of fact rarely are disturbed on appeal; appellate judges decide cases based on a cold written record, so they just don’t second-guess the judge who heard live witnesses in open court. Judges who worry about getting reversed on appeal emphasize factual findings for that reason.
But this judge, though he could have framed his ruling as a finding of fact, framed it as a decision of law. That way, if he was wrong, the losing party could get relief in a higher court. This judge was more concerned with justice than with his vanity about getting reversed by a higher court. Stating clearly the legal basis for his ruling was for him a matter of judicial integrity. This case happened many years ago, but I remember it because I admired the judge’s statement on the record inviting judicial reversal if he was wrong on the law.
I remember a judge in Ventura. He had an uncanny ability to know when a witness was lying, and when a witness was telling the truth. Some judges stare off into space when they listen to witnesses. But this judge with great concentration studied the witness as he or she testified.
Judges are (suspenseful pause) human. I once mentioned to a judge that some judges seem better suited to their occupation than others. He readily agreed. And he would know. Lawyers need to know this, because they will then be grateful to try their case before a good judge.
And they won’t necessarily take a bad ruling to heart. Sometimes, being in a courtroom with a weak judge is like driving a car with a loose steering wheel. You can do everything possible to direct it down the center of the lane, but it still might veer into the center divider.
Not all judges are well suited to their occupation, but a lawyer should assume that at the end of the day, far and away most judges want to do justice. True, their idea of justice might differ from yours. In extreme case, their confidence in one side or the other might dictate that all of their rulings go in one direction. That doesn’t mean that they don’t care about justice; only that their view of justice is quirky.
A judiciary that wants to do justice doesn’t exist everywhere. For example, Russia’s judges are notoriously deferential to the state. God save us from judges like Russia’s that see themselves as frictionless conduits for the government’s position. We should not take our judges for granted.
Saturday, December 18, 2010
Wednesday, December 15, 2010
Police, Interrogation, and Trickery
Officers found marijuana our client’s car. And one-thousand dollars cash. And scales.
He has a medical-marijuana card, so he’s permitted to possess marijuana. The scales he says is a matter of personal caution. The money? Ten one-hundred dollar bills. He got them from his girlfriend’s brother; it was part of the brother’s tax refund. It was supposed to go toward a car for his girlfriend.
Of course, the officers want to prove possession-for-sales.
So they interrogated him.
Now, the smart thing to say when the officer starts to interrogate is: "Thank you for the opportunity to talk, officer, but I choose not to do so at this time." Because officers always tell you that they want to get your side of the story. But what they really want to do is build a case against you.
That’s why, in the taped interrogation, when our client started to say something that helped him, the officer cut him off and directed the discussion elsewhere. That’s why the officer repeatedly tried to bully our client to confess to possession-for-sales.
Officers always have a bag of interrogation tricks. They make a person feel hopeless, so he confesses. They make a person feel remorseful, so he confesses. (It is easy to feel remorseful when you’re in handcuffs, even if you haven’t done anything wrong.) They make a person think he’s helping himself when he really is hurting himself. ("Now, it wasn’t your idea to steal the rims, was it?") They just lie. ("We took DNA off the steering wheel, and it came back to you. How do you explain that?") They make a person feel desperate, to make him confess. ("You know, you’re going to get the death penalty for this. But if you confess, we’ll tell the judge you cooperated.") Or they combine these tactics.
And as up-ended as most people feel when handcuffed and in custody, they usually can’t think straight. So they are easy to lead into a confession or an admission. They stumble into the officers’ traps. That’s why false confessions and false admissions are common.
Under the circumstances, our client did relatively well. He steadfastly denied possession-for-sales – as much as he could before the officer cut him off.
But he admitted some sales in times past. I’m sure he did this against his better judgment, to mollify the aggressive officer. Officers can be very, very intimidating when you’re under arrest. It’s natural to want to get on their good side. Officers know that arrestees want to get on their good side, and they exploit this fact. They communicate that they want and expect an admission or a confession. And often, that’s what they get.
In admitting past sales, our client didn't help himself, so we have our work cut out for us. But it’s far from hopeless.
He has a medical-marijuana card, so he’s permitted to possess marijuana. The scales he says is a matter of personal caution. The money? Ten one-hundred dollar bills. He got them from his girlfriend’s brother; it was part of the brother’s tax refund. It was supposed to go toward a car for his girlfriend.
Of course, the officers want to prove possession-for-sales.
So they interrogated him.
Now, the smart thing to say when the officer starts to interrogate is: "Thank you for the opportunity to talk, officer, but I choose not to do so at this time." Because officers always tell you that they want to get your side of the story. But what they really want to do is build a case against you.
That’s why, in the taped interrogation, when our client started to say something that helped him, the officer cut him off and directed the discussion elsewhere. That’s why the officer repeatedly tried to bully our client to confess to possession-for-sales.
Officers always have a bag of interrogation tricks. They make a person feel hopeless, so he confesses. They make a person feel remorseful, so he confesses. (It is easy to feel remorseful when you’re in handcuffs, even if you haven’t done anything wrong.) They make a person think he’s helping himself when he really is hurting himself. ("Now, it wasn’t your idea to steal the rims, was it?") They just lie. ("We took DNA off the steering wheel, and it came back to you. How do you explain that?") They make a person feel desperate, to make him confess. ("You know, you’re going to get the death penalty for this. But if you confess, we’ll tell the judge you cooperated.") Or they combine these tactics.
And as up-ended as most people feel when handcuffed and in custody, they usually can’t think straight. So they are easy to lead into a confession or an admission. They stumble into the officers’ traps. That’s why false confessions and false admissions are common.
Under the circumstances, our client did relatively well. He steadfastly denied possession-for-sales – as much as he could before the officer cut him off.
But he admitted some sales in times past. I’m sure he did this against his better judgment, to mollify the aggressive officer. Officers can be very, very intimidating when you’re under arrest. It’s natural to want to get on their good side. Officers know that arrestees want to get on their good side, and they exploit this fact. They communicate that they want and expect an admission or a confession. And often, that’s what they get.
In admitting past sales, our client didn't help himself, so we have our work cut out for us. But it’s far from hopeless.
Tuesday, December 14, 2010
Kicking the Can Down the Road
Another client gets drunk and hits someone’s car. The client is off to prison (he had a prior felony DUI). Now we’re dealing with restitution.
Before the collision, the complaining party’s whole car was worth less than $2,000. It’s a 1993 Toyota Camry. Case law says that the most that the complaining party can get is replacement value. But for two dented fenders and a dented hood, the complaining party wants $3,500.
I suspect would-be theft-by-court-order.
I point out to the DA that the complaining party is seeking almost twice as much as he legally can get. The DA doesn’t care. He could investigate and save everybody a hearing. But it’s easier for him just to say "Set it for hearing". He can prepare for the hearing with virtually no effort. But now, the judge, the bailiff, the clerk, the court reporter, and I will have to devote time to this.
Some DA’s are conscientious. Others are pyromaniacs when it comes to tax dollars.
Before the collision, the complaining party’s whole car was worth less than $2,000. It’s a 1993 Toyota Camry. Case law says that the most that the complaining party can get is replacement value. But for two dented fenders and a dented hood, the complaining party wants $3,500.
I suspect would-be theft-by-court-order.
I point out to the DA that the complaining party is seeking almost twice as much as he legally can get. The DA doesn’t care. He could investigate and save everybody a hearing. But it’s easier for him just to say "Set it for hearing". He can prepare for the hearing with virtually no effort. But now, the judge, the bailiff, the clerk, the court reporter, and I will have to devote time to this.
Some DA’s are conscientious. Others are pyromaniacs when it comes to tax dollars.
Hammer Falls
The Unfair Dept Collection Practices Act is a good law. It keeps bill collectors from hounding and harassing people. The kicker in it is that a prevailing plaintiff can get the other side to pay his attorney’s fees.
The downside of it is that UDCPA mills can churn out bad lawsuits and count on settling. Because a small debt-collection shop can’t afford to litigate the case, the payout is (usually) modest, and the prospect of paying for the other side’s attorney’s fees if you lose is daunting.
A friend of ours got sued in a UDCPA case. He’s a decent Joe. And the claim that his company made frequent, harassing phone calls is nonsense. His phone records show only two calls to the plaintiff.
But as strong as our defense is, our defense is going nowhere. Our friend left the company to his business partner and went to another company. And the partner left the state. We haven’t been able to contact him.
In the meantime, the attorneys for the other side have been calling us. We had to make a joint report with him about the case to give to the judge. But that’s been difficult because we have had no contact with our client. We lacked the helpful participation of our client.
To make matters worse, the other side submitted a document to the judge that said that we have shirked our responsibilities. That’s not true. This accusation is the kind of thing lawyers do – lie to the judge to try to make the other side look bad. This happens all the time now, unlike, say, 30 years ago.
So I went to court Monday not quite knowing if things were going to go to Hell.
They did.
For the other side.
Because the judge apparently knows the other side. And she doesn’t seem to have a high opinion of them.
The judge grilled the other lawyer about the merits of his case. And he couldn’t give satisfactory answers. He ended up looking like an unprepared boob.
The hearing was continued to another day to bring in the lead trial counsel, who might be able to give better answers. Local rules required him to be present at Monday’s hearing. So the judge wants him to explain why she shouldn't punish him with a fine for not being there in the first place.
I try not to gloat when the other side get’s hammered. It’s bad to gloat. But, damn if it isn’t hard to restrain myself. Because what happened to the other side is what they intended to happen to us.
So it was a good day in court.
The downside of it is that UDCPA mills can churn out bad lawsuits and count on settling. Because a small debt-collection shop can’t afford to litigate the case, the payout is (usually) modest, and the prospect of paying for the other side’s attorney’s fees if you lose is daunting.
A friend of ours got sued in a UDCPA case. He’s a decent Joe. And the claim that his company made frequent, harassing phone calls is nonsense. His phone records show only two calls to the plaintiff.
But as strong as our defense is, our defense is going nowhere. Our friend left the company to his business partner and went to another company. And the partner left the state. We haven’t been able to contact him.
In the meantime, the attorneys for the other side have been calling us. We had to make a joint report with him about the case to give to the judge. But that’s been difficult because we have had no contact with our client. We lacked the helpful participation of our client.
To make matters worse, the other side submitted a document to the judge that said that we have shirked our responsibilities. That’s not true. This accusation is the kind of thing lawyers do – lie to the judge to try to make the other side look bad. This happens all the time now, unlike, say, 30 years ago.
So I went to court Monday not quite knowing if things were going to go to Hell.
They did.
For the other side.
Because the judge apparently knows the other side. And she doesn’t seem to have a high opinion of them.
The judge grilled the other lawyer about the merits of his case. And he couldn’t give satisfactory answers. He ended up looking like an unprepared boob.
The hearing was continued to another day to bring in the lead trial counsel, who might be able to give better answers. Local rules required him to be present at Monday’s hearing. So the judge wants him to explain why she shouldn't punish him with a fine for not being there in the first place.
I try not to gloat when the other side get’s hammered. It’s bad to gloat. But, damn if it isn’t hard to restrain myself. Because what happened to the other side is what they intended to happen to us.
So it was a good day in court.
Tuesday, December 7, 2010
Don't Punch an Old Man if You Don't Want to End Up in Court
Based on client information, my petition for a restraining order said that a 17-year-old kid threatened to "kick" another kid’s "ass". Grandpa, my client, shuts the gate on him, to keep him from doing what he threatened to do. So17-year-old smacks Grandpa on the bridge of the nose.
Today is the hearing on the petition for a restraining order. And, with Grandpa on the stand, I just can’t get him to say why 17-year-old smacked him on the bridge of the nose.
17-year-old testifies. He says that the two families – his and Grandpa’s – were confronting each other. Somebody shoved his mother, but he can’t say it was Grandpa. So he punches somebody, and he can’t say it wasn’t Grandpa.
Game over.
It bothers me a bit that Grandpa didn’t recall why the punch happened. It makes me wonder if I got a skewed picture when I wrote the petition.
But justice was done. Because a 17-year-old just doesn’t punch an old man. Just doesn’t.
My client’s family doesn’t speak English all that well. His son thought that the judge had rejected the restraining order. He asked me to step out of the courtroom so he could complain. But with my broken Spanish and his broken English, I got him to understand that we had won. Then it was a smile and a handshake.
Today is the hearing on the petition for a restraining order. And, with Grandpa on the stand, I just can’t get him to say why 17-year-old smacked him on the bridge of the nose.
17-year-old testifies. He says that the two families – his and Grandpa’s – were confronting each other. Somebody shoved his mother, but he can’t say it was Grandpa. So he punches somebody, and he can’t say it wasn’t Grandpa.
Game over.
It bothers me a bit that Grandpa didn’t recall why the punch happened. It makes me wonder if I got a skewed picture when I wrote the petition.
But justice was done. Because a 17-year-old just doesn’t punch an old man. Just doesn’t.
My client’s family doesn’t speak English all that well. His son thought that the judge had rejected the restraining order. He asked me to step out of the courtroom so he could complain. But with my broken Spanish and his broken English, I got him to understand that we had won. Then it was a smile and a handshake.
Monday, December 6, 2010
Calls Taken, Problems Solved
It was a little-happening day. A DMV hearing. An arraignment on a traffic warrant. And legal research.
And interruptions. Clients calling with problems. And that’s actually the most important thing that happened today.
Because clients often have the option of getting a public defender. Basically, anyone who asks for one gets one. But we give our clients something that they rarely get from public lawyers: scrupulous care. We don’t blow off phone calls from clients because we’re busy. When a client calls, that’s our chance to make him know that he was smart to hire a private lawyer. We’re on it.
So I welcome interruptions. Yes, sometimes I have to remind myself that the project that I was working on can wait. And it almost always can. I sometimes have to remind myself that whatever the client is calling about is important to him, or he wouldn’t call. Very few clients abuse our open-door policy.
Our clients hire us so that they don’t have to wait. Our clients hire us so that they don’t have to feel like an interruption. And we do our best to be available. They aren't interruptions. They're our livelihood.
So one client calls and has questions about his alcohol school. I take time to understand his question (his English is not great), and I give him the best answer that I can.
Another client calls and wonders why he could not visit his son in jail last weekend. We call the jail and find out that there was no barrier to his visit; he just needs to call this Friday and make an appointment for Saturday. He concludes that his ex-wife gave him bum information.
Problems solved.
And interruptions. Clients calling with problems. And that’s actually the most important thing that happened today.
Because clients often have the option of getting a public defender. Basically, anyone who asks for one gets one. But we give our clients something that they rarely get from public lawyers: scrupulous care. We don’t blow off phone calls from clients because we’re busy. When a client calls, that’s our chance to make him know that he was smart to hire a private lawyer. We’re on it.
So I welcome interruptions. Yes, sometimes I have to remind myself that the project that I was working on can wait. And it almost always can. I sometimes have to remind myself that whatever the client is calling about is important to him, or he wouldn’t call. Very few clients abuse our open-door policy.
Our clients hire us so that they don’t have to wait. Our clients hire us so that they don’t have to feel like an interruption. And we do our best to be available. They aren't interruptions. They're our livelihood.
So one client calls and has questions about his alcohol school. I take time to understand his question (his English is not great), and I give him the best answer that I can.
Another client calls and wonders why he could not visit his son in jail last weekend. We call the jail and find out that there was no barrier to his visit; he just needs to call this Friday and make an appointment for Saturday. He concludes that his ex-wife gave him bum information.
Problems solved.
Friday, December 3, 2010
Grifter
My client gets drunk and rear-ends a woman’s car. The woman – let’s call her Janet – has her two young children with her. The collision causes slight damage to the cars. The airbags don't deploy.
My client is arrested for drunk driving.
Janet immediately – immediately – claims pain and suffering. She takes her kids to the hospital and wracks up $45,000 in medical bills. They are discharged a day later with no recommendation for further treatment except over-the-counter pain medication for Janet.
Medi-Cal pays the hospital bills. Medi-Cal is government-paid medical insurance for people who can’t afford health care.
My client has to pay restitution as part of his drunk-driving probation. Restitution is payment to victims of crime for their losses caused by the crime. Restitution is appropriate in a case like this one. But Janet is trying to steal, plain and simple. Here’s why:
So I submit a brief to the judge. And I point out all of the issues that I point out here. The judge reads the brief and calls the lawyers back into her office. She tells the prosecutor bluntly that his "victim" is out of line. Bless the judge.
My client is arrested for drunk driving.
Janet immediately – immediately – claims pain and suffering. She takes her kids to the hospital and wracks up $45,000 in medical bills. They are discharged a day later with no recommendation for further treatment except over-the-counter pain medication for Janet.
Medi-Cal pays the hospital bills. Medi-Cal is government-paid medical insurance for people who can’t afford health care.
My client has to pay restitution as part of his drunk-driving probation. Restitution is payment to victims of crime for their losses caused by the crime. Restitution is appropriate in a case like this one. But Janet is trying to steal, plain and simple. Here’s why:
- Janet claims that her child was so injured that she had to stay home from work for a month to care for him. She lost wages, she said, of $8,100. Those monthly wages add up to $97,200 a year. Mighty high for somebody with government-paid health insurance.
- And it’s odd that Janet should have to stay home for a month to take care of her child. The doctors on the day of the accident did not say he needed any follow-up care. And Janet submitted no medical records for any post-day-of-the-accident treatment.
- Janet claimed that she had to get $6,500 in treatment at the Serenity Day Spa. That’s a lot of hot-stone massages.
- Janet claimed that she had to get psychological counseling for her and her children because of the accident. That’s right: psychological counseling for a bumper-tap.
- Janet has no proof or receipts for any of this. No check-stubs from work. No receipts for any of the treatments.
- Janet claimed that she had to declare bankruptcy because of the medical bills. But I checked the bankruptcy-court records. She declared bankruptcy in 2004, and her bankruptcy was discharged that same year. That was long before the accident.
So I submit a brief to the judge. And I point out all of the issues that I point out here. The judge reads the brief and calls the lawyers back into her office. She tells the prosecutor bluntly that his "victim" is out of line. Bless the judge.
The judge makes it clear that she will not order restitution for any expenses that the "victim" does not prove up with substantial evidence. In particular, the judge agrees that it’s odd that somebody with government-paid insurance claims to earn $8,100 per month.
I argue that the judge shouldn’t order any restitution, based on the "victims" fraud. But the judge won’t go that far.
So the judge says she’ll order restitution for the medical expenses. Because there is proof of that. I have case authority showing that the "victim" does not get restitution for the amount of the medical bills; only for what the insurance paid on her behalf. (I know, why shouldn’t the money go to the insurance company instead of the "victim"? It’s a quirk of the law.)
But that’s OK. Because on $46,000 billed by the hospital, Medi-Cal paid $1,800. My client easily can afford that.
All in all, this was a lot of work. It took effort to discover that this was a Medi-Cal case. It took effort to find out how little Medi-Cal paid on the substantial hospital bill. It took effort to research the law. It took effort to comb through the facts to discover discrepancies in the "victim's" claims.
But things turned out alright.
__________________________
This case was part of our criminal-law practice at Schlueter & Schlueter. Our website is http://criminal-civilrights-attorney.com/
__________________________
This case was part of our criminal-law practice at Schlueter & Schlueter. Our website is http://criminal-civilrights-attorney.com/
Tuesday, November 30, 2010
Scheduling Snafu makes for a Close Shave before Shaving
Peter and I represent a civil-defendant in federal court in New York. New York federal court is easy about permitting counsel to appear at hearings by telephone.
Today we had a 10:00 a.m. hearing. Peter is in the office at 7:00 a.m. preparing for a deposition. The court calls. "Where are you guys?" the judge’s secretary wants to know.
10:00 a.m. their time is 7:00 a.m. our time. We forgot to factor that in when we calendared the telephone appearance.
Peter knows little about the substance of the hearing. So he calls me at home. "Jon. An emergency. The court needs you to call now!" Etc.
Fine. I call the court on my cell phone. I explain the situation. I take the blame. (This is called "falling on your sword.")
The hearing goes fine.
But I wasn’t expecting to participate in the hearing until three hours later. So, when I call the court, I’m in pajama bottoms, a t-shirt, and house-slippers. I’m surprised at how natural it felt talking to a judge about impeachment rules and the law of indispensable parties while in my PJs.
I had to remind myself to use formal court-language. It’s easy to slip when you’re not dressed for court, but for morning coffee.
All in all, we caught some breaks. Peter happened to be in the office early so that he was there to take the judge's secretary's where-are-you-guys call. I just got in from getting the morning paper when Peter called me. The night before, I had fixed a problem with our password for accessing court documents on-line; so, during the hearing, I could look on-line at the court-papers we had filed, to remember the issues.
We work hard to make sure we never miss a court appearance. We very, very rarely slip. With a little luck, we didn't today.
Today we had a 10:00 a.m. hearing. Peter is in the office at 7:00 a.m. preparing for a deposition. The court calls. "Where are you guys?" the judge’s secretary wants to know.
10:00 a.m. their time is 7:00 a.m. our time. We forgot to factor that in when we calendared the telephone appearance.
Peter knows little about the substance of the hearing. So he calls me at home. "Jon. An emergency. The court needs you to call now!" Etc.
Fine. I call the court on my cell phone. I explain the situation. I take the blame. (This is called "falling on your sword.")
The hearing goes fine.
But I wasn’t expecting to participate in the hearing until three hours later. So, when I call the court, I’m in pajama bottoms, a t-shirt, and house-slippers. I’m surprised at how natural it felt talking to a judge about impeachment rules and the law of indispensable parties while in my PJs.
I had to remind myself to use formal court-language. It’s easy to slip when you’re not dressed for court, but for morning coffee.
All in all, we caught some breaks. Peter happened to be in the office early so that he was there to take the judge's secretary's where-are-you-guys call. I just got in from getting the morning paper when Peter called me. The night before, I had fixed a problem with our password for accessing court documents on-line; so, during the hearing, I could look on-line at the court-papers we had filed, to remember the issues.
We work hard to make sure we never miss a court appearance. We very, very rarely slip. With a little luck, we didn't today.
Friday, November 19, 2010
The Hero Cops a Plea
A lot of people will condemn my client. And they’ll condemn my sympathy for him.
He was an Army recruiter. He picked up a 17-year-old would-be recruit, drove her to a parking lot, and cajoled her into giving him oral sex in his car. Security guards caught them. He fully confessed. It's against the law to get oral sex from a 17-year-old.
It’s very bad what he did. No doubt about it. But while everyone else in the criminal-justice system looks at the crime, I look at the person behind the crime.
A little bit about him: He did three tours in Iraq. Each time, he did dangerous convoy duty. He has many awards and commendations from the Army.
He’s a young man: 25 at the time of the crime. Until now, he has led a blameless life. He has been very responsible. This responsibility shows in the fact that he took on a career in which he did not know from year to year if he would live or die. He did this for our freedom.
Part of his personal sacrifice has been his serial overseas deployments. Deployments disrupt relationships. He has spent much of his adult life in combat zones. It’s hard to make and keep relationships state-side under those circumstances.
That’s why soldiers can be lonely between deployments. And he committed his crime after his relationship with his closest relative suffered a setback. He was lonely and upset.
So he did something uncharacteristic of him. And because of that error in judgment, he’ll lose everything he built for himself in the Army. He'll receive a less-than-honorable discharge. All his Army benefits are gone – no paid-for school, no other benefits.
At the moment he was discovered, he knew he did wrong. He showed deep shame for his behavior. Deep shame.
I’ll admit: I’m sentimental about military people. So I wanted to do right by this guy. Even more than most cases. I wanted a misdemeanor plea. That would punish him. He would have to do time. But it would not destroy his life.
But the DA would not go below a felony plea, to be reduced to a misdemeanor after 18 months if he does alright on probation. 180 days jail on weekends. Also, he pleaded guilty to a crime that did not cause him to have to register as a sex-offender. The original charge required sex-offender registration.
The deal was decent. The case against him was air-tight. But I wish I could have done better. What made the deal acceptable was that he didn’t have to register as a sex offender and he will earn a misdemeanor by good behavior on probation. That made the deal just good enough not to risk losing it by proceeding further with the case.
I know that some will have no sympathy. That’s not me. And I don’t apologize for that. To me, my clients are flesh-and-bone human beings. Flawed, yes. But aren’t we all.
So we do our best for our clients. It’s our job to be on their side. Nobody else in the criminal justice system is. If we’re not on their side, nobody is.
Sometimes that means taking to trial a case after the judge says it’s a dead-bang winner for the DA. (We have won such cases.) And sometimes it means spending hours doing research to find the law that gives our client a chance at vindication. (We have found such law.) And with no other avenue, it means making an impassioned appeal to the humanity of to the judge, or of the DA.
Sometimes you get what you want, and sometimes you don’t. A wise old public defender once told me that one important requirement for this job is the ability to bear pain.
He was an Army recruiter. He picked up a 17-year-old would-be recruit, drove her to a parking lot, and cajoled her into giving him oral sex in his car. Security guards caught them. He fully confessed. It's against the law to get oral sex from a 17-year-old.
It’s very bad what he did. No doubt about it. But while everyone else in the criminal-justice system looks at the crime, I look at the person behind the crime.
A little bit about him: He did three tours in Iraq. Each time, he did dangerous convoy duty. He has many awards and commendations from the Army.
He’s a young man: 25 at the time of the crime. Until now, he has led a blameless life. He has been very responsible. This responsibility shows in the fact that he took on a career in which he did not know from year to year if he would live or die. He did this for our freedom.
Part of his personal sacrifice has been his serial overseas deployments. Deployments disrupt relationships. He has spent much of his adult life in combat zones. It’s hard to make and keep relationships state-side under those circumstances.
That’s why soldiers can be lonely between deployments. And he committed his crime after his relationship with his closest relative suffered a setback. He was lonely and upset.
So he did something uncharacteristic of him. And because of that error in judgment, he’ll lose everything he built for himself in the Army. He'll receive a less-than-honorable discharge. All his Army benefits are gone – no paid-for school, no other benefits.
At the moment he was discovered, he knew he did wrong. He showed deep shame for his behavior. Deep shame.
I’ll admit: I’m sentimental about military people. So I wanted to do right by this guy. Even more than most cases. I wanted a misdemeanor plea. That would punish him. He would have to do time. But it would not destroy his life.
But the DA would not go below a felony plea, to be reduced to a misdemeanor after 18 months if he does alright on probation. 180 days jail on weekends. Also, he pleaded guilty to a crime that did not cause him to have to register as a sex-offender. The original charge required sex-offender registration.
The deal was decent. The case against him was air-tight. But I wish I could have done better. What made the deal acceptable was that he didn’t have to register as a sex offender and he will earn a misdemeanor by good behavior on probation. That made the deal just good enough not to risk losing it by proceeding further with the case.
I know that some will have no sympathy. That’s not me. And I don’t apologize for that. To me, my clients are flesh-and-bone human beings. Flawed, yes. But aren’t we all.
So we do our best for our clients. It’s our job to be on their side. Nobody else in the criminal justice system is. If we’re not on their side, nobody is.
Sometimes that means taking to trial a case after the judge says it’s a dead-bang winner for the DA. (We have won such cases.) And sometimes it means spending hours doing research to find the law that gives our client a chance at vindication. (We have found such law.) And with no other avenue, it means making an impassioned appeal to the humanity of to the judge, or of the DA.
Sometimes you get what you want, and sometimes you don’t. A wise old public defender once told me that one important requirement for this job is the ability to bear pain.
Wednesday, November 17, 2010
Payback
An old, frail woman needs a temporary loan to pay a property-tax bill. She goes to her millionaire daughter. This daughter owns airplanes and vacation homes. The daughter manipulates her Mom into putting all of her money into an irrevocable trust, naming the daughter as the trustee. When Mom want to revoke the trust and get back control of her money, the daughter cuts off all payments to her.
Through family members, Mom scrapes together $10,000 to pay a lawyer to sue to get back her money. Millionaire daughter hires a big-time law firm to keep the money away from her. The law firm sues my client, Mom’s son, to get his rock-n-roll memorabilia collection added to Mom’s trust. Millionaire daughter has long hated my client, whom Mom favored. (But Mom did give the daughter the seed money that laid the foundation for her millions.)
The millionaire daughter’s legal bills are paid out of Mom’s trust. The litigation goes on until the legal bills exceed the amount in the trust. Then the daughter agrees to give back the money. But there’s nothing left.
The case is dragging on while a piece of real estate from the trust is on the market. When it’s sold, the money will pay the rest of the daughter’s legal bills.
After yesterday’s status conference, I talked to the millionaire daughter’s lawyer. I told him that his client had a moral duty to make sure that her mother isn’t buying her food in the supermarket pet-supplies aisle. It’s not my business. My client is keeping his rock ‘n roll collection, so my work is done. And I don’t represent Mom. But I can’t help myself.
The millionaire daughter’s attorney gets agitated. That pleases me. Because I think he’s a bum for eating up an old woman’s estate to keep it away from her. He should have told his client to take a hike. We keep talking. It's tense. He demands to know if I get angry about all of my cases. I say no, but that this case makes me angry.
For his sake, it’s good that my comments raised his hackles. A guilty conscience is better than no conscience.
Through family members, Mom scrapes together $10,000 to pay a lawyer to sue to get back her money. Millionaire daughter hires a big-time law firm to keep the money away from her. The law firm sues my client, Mom’s son, to get his rock-n-roll memorabilia collection added to Mom’s trust. Millionaire daughter has long hated my client, whom Mom favored. (But Mom did give the daughter the seed money that laid the foundation for her millions.)
The millionaire daughter’s legal bills are paid out of Mom’s trust. The litigation goes on until the legal bills exceed the amount in the trust. Then the daughter agrees to give back the money. But there’s nothing left.
The case is dragging on while a piece of real estate from the trust is on the market. When it’s sold, the money will pay the rest of the daughter’s legal bills.
After yesterday’s status conference, I talked to the millionaire daughter’s lawyer. I told him that his client had a moral duty to make sure that her mother isn’t buying her food in the supermarket pet-supplies aisle. It’s not my business. My client is keeping his rock ‘n roll collection, so my work is done. And I don’t represent Mom. But I can’t help myself.
The millionaire daughter’s attorney gets agitated. That pleases me. Because I think he’s a bum for eating up an old woman’s estate to keep it away from her. He should have told his client to take a hike. We keep talking. It's tense. He demands to know if I get angry about all of my cases. I say no, but that this case makes me angry.
For his sake, it’s good that my comments raised his hackles. A guilty conscience is better than no conscience.
Monday, November 15, 2010
New Prosecutors and Old Prosecutors
Today I went to Rancho Cucamonga to plea-bargain a misdemeanor case. A misdemeanor is a crime you can go to jail for, but not for more than a year.
It’s unsatisfying to plea-bargain misdemeanors in Rancho Cucamonga. The room for plea bargaining has an assembly-line feel. Defense attorneys stand in line, waiting their turn to talk to a prosecutor. When a seat opens up, they sit down.
And you deal with new prosecutors. No doubt fine people, but they usually lack the experience they need to know a good case from a bad case. So you almost always get a "standard" offer. If you want something better than that, you usually have to set the case for trial. (Even young prosecutors often get reasonable about their bad case when they’re about to lose a jury trial.) Sometimes, you can get a better deal from a supervisor.
Plea bargaining misdemeanors in Rancho Cucamonga is unlike, say, San Bernardino. In San Bernardino, the lawyers wait their turn while sitting around a table. Everyone chats and banters. The designated misdemeanor plea-bargain prosecutor is a seasoned lawyer. He usually knows a lame case when he sees one, and he usually gets rid of it for what it’s worth.
Usually. Sometimes even seasoned lawyers disagree. That’s when cases get set for trial
It’s unsatisfying to plea-bargain misdemeanors in Rancho Cucamonga. The room for plea bargaining has an assembly-line feel. Defense attorneys stand in line, waiting their turn to talk to a prosecutor. When a seat opens up, they sit down.
And you deal with new prosecutors. No doubt fine people, but they usually lack the experience they need to know a good case from a bad case. So you almost always get a "standard" offer. If you want something better than that, you usually have to set the case for trial. (Even young prosecutors often get reasonable about their bad case when they’re about to lose a jury trial.) Sometimes, you can get a better deal from a supervisor.
Plea bargaining misdemeanors in Rancho Cucamonga is unlike, say, San Bernardino. In San Bernardino, the lawyers wait their turn while sitting around a table. Everyone chats and banters. The designated misdemeanor plea-bargain prosecutor is a seasoned lawyer. He usually knows a lame case when he sees one, and he usually gets rid of it for what it’s worth.
Usually. Sometimes even seasoned lawyers disagree. That’s when cases get set for trial
Friday, November 12, 2010
The Unknown
Some clients are OK when you can’t give them a sure answer. Some aren’t.
My client has a business. He started out working for himself. Now others work for him. And he does well.
Ever since he has been in the business, he and the people he worked with considered the people who did the actual work to be independent contractors. That means a lot of things. One thing it means is that my client doesn’t have to buy expensive workers-compensation insurance for his people in case they get injured on the job.
But the State has other ideas. They are demanding that he buy workers-compensation insurance for everyone. That will cost a lot. And it will harm his business and his people in other ways that I won’t get into.
So he asks us: are his people employees or independent contractors? Should he fight this?
Yesterday and today were research days. And the answer is hard. Because the courts look at some twenty-or-so factors to decide that question. And no one factor dominates. Some factors are more important than others, but not always: what matters is the combination of factors in a given case.
So I can’t give the client a yes-or-no answer.
Clients differ in their ability to tolerate the unknown. Some go gladly into the unknown if they think that they are right. Others will take any deal, even a bad deal, just so that they know at an early time what the deal is. A trial lawyer has to know how much a client can tolerate the unknown.
My client has a business. He started out working for himself. Now others work for him. And he does well.
Ever since he has been in the business, he and the people he worked with considered the people who did the actual work to be independent contractors. That means a lot of things. One thing it means is that my client doesn’t have to buy expensive workers-compensation insurance for his people in case they get injured on the job.
But the State has other ideas. They are demanding that he buy workers-compensation insurance for everyone. That will cost a lot. And it will harm his business and his people in other ways that I won’t get into.
So he asks us: are his people employees or independent contractors? Should he fight this?
Yesterday and today were research days. And the answer is hard. Because the courts look at some twenty-or-so factors to decide that question. And no one factor dominates. Some factors are more important than others, but not always: what matters is the combination of factors in a given case.
So I can’t give the client a yes-or-no answer.
Clients differ in their ability to tolerate the unknown. Some go gladly into the unknown if they think that they are right. Others will take any deal, even a bad deal, just so that they know at an early time what the deal is. A trial lawyer has to know how much a client can tolerate the unknown.
Thursday, November 11, 2010
No Way to Treat a Human
Our client was in prison in Florida. He’s a paraplegic. And an intermittent quadriplegic.
He needs a stent to urinate. But they didn’t give him enough stents, so he had to re-use the ones he had. That caused urinary-tract infections.
He lacks control over his bowel movements. But they didn’t put grab bars in his cell so he could move himself from his wheelchair to the toilet. So he fouled himself. And when he tried to clean himself, there was no running water in the sink.
That’s the short version. The long version is worse.
We sue for violations of the Americans with Disabilities Act. Florida is fighting back hard. Because the problem is not just with our client. Cruel conditions for disabled prisoners are widespread in the Florida penal system. If they lose, they will have to make major improvements.
I know that some people think that a prisoner deserves anything he gets. But no prisoner deserves to spend years with preventable urinary-tract infections, unable to use the toilet, sitting in his own feces, unable to clean himself. If someone treated a dog that way, he would be arrested.
So I worked on that case today. Found some good law. And maybe, in the end, Florida will have to reckon their own cruelty.
He needs a stent to urinate. But they didn’t give him enough stents, so he had to re-use the ones he had. That caused urinary-tract infections.
He lacks control over his bowel movements. But they didn’t put grab bars in his cell so he could move himself from his wheelchair to the toilet. So he fouled himself. And when he tried to clean himself, there was no running water in the sink.
That’s the short version. The long version is worse.
We sue for violations of the Americans with Disabilities Act. Florida is fighting back hard. Because the problem is not just with our client. Cruel conditions for disabled prisoners are widespread in the Florida penal system. If they lose, they will have to make major improvements.
I know that some people think that a prisoner deserves anything he gets. But no prisoner deserves to spend years with preventable urinary-tract infections, unable to use the toilet, sitting in his own feces, unable to clean himself. If someone treated a dog that way, he would be arrested.
So I worked on that case today. Found some good law. And maybe, in the end, Florida will have to reckon their own cruelty.
Wednesday, November 10, 2010
Your Tax Dollars Should Find More Honest Work
My client is a young doctor finishing her internship. Cash-for-clunkers comes along, so she trades in her, well, her clunker for a beautiful new Prius.
Debt piled up in all those years of becoming a healer. So my client’s credit is poor. Her dad co-signs for her. But even with Dad as co-cosigner, the interest rate is larcenous. So her brother fronts the money to buy the Prius.
But the dealership doesn’t change the paperwork from when Dad was the co-signer. So the DMV issues title in my client’s name and Dad’s.
Here’s the problem. Her dad’s a good guy, but many years ago he got buried under an unpaid tax bill. Long story, not relevant here. Now, the Board of Equalization seizes the Prius to pay down Dad’s unpaid taxes, because he’s on the title.
We tell our story to the Board of Equalization. They don’t move. So we go to court.
At the court hearing, the Board’s lawyer argues that the car is really Dad’s. Even though Dad is crippled and cannot drive. They argue that the money for the Prius came from Dad’ hidden trove, and that the brother was only a conduit. They just forget to prove that.
After the hearing, the judge returns the Prius to the young doctor. The judge points out that if dad really intended to conceal his ownership of the Prius, he would have kept his name off the title. That’s a pretty good argument, and one that I didn’t make at the hearing.
Which goes to show: if a judge (or a jury) wants to rule in your favor, they’ll come up with their own argument to do so.
Debt piled up in all those years of becoming a healer. So my client’s credit is poor. Her dad co-signs for her. But even with Dad as co-cosigner, the interest rate is larcenous. So her brother fronts the money to buy the Prius.
But the dealership doesn’t change the paperwork from when Dad was the co-signer. So the DMV issues title in my client’s name and Dad’s.
Here’s the problem. Her dad’s a good guy, but many years ago he got buried under an unpaid tax bill. Long story, not relevant here. Now, the Board of Equalization seizes the Prius to pay down Dad’s unpaid taxes, because he’s on the title.
We tell our story to the Board of Equalization. They don’t move. So we go to court.
At the court hearing, the Board’s lawyer argues that the car is really Dad’s. Even though Dad is crippled and cannot drive. They argue that the money for the Prius came from Dad’ hidden trove, and that the brother was only a conduit. They just forget to prove that.
After the hearing, the judge returns the Prius to the young doctor. The judge points out that if dad really intended to conceal his ownership of the Prius, he would have kept his name off the title. That’s a pretty good argument, and one that I didn’t make at the hearing.
Which goes to show: if a judge (or a jury) wants to rule in your favor, they’ll come up with their own argument to do so.
Tuesday, November 9, 2010
Goliath Fights Dirty
My client got cheated by a statewide real-estate investment company. The investment company failed to pay her for her construction-management services. Two-hundred-thousand dollars they failed to pay her.
My client is a tiny business. Two-hundred-thousand dollars is a big deal to her. To give you an idea, my client kept her business records in the back of a truck, because she didn't have an office. She can’t absorb a two-hundred-thousand-dollar loss. When the investment company withheld payment, my client ran short of money.
Running short of money, my client and her associate/brother missed a payment on the truck. The truck was owned by a colleague of my client, a former friend, who had over time become thick with the owners of the investment company. The former friend took back the truck in the middle of the night, with all of my client’s business records in it.
Through a pending lawsuit, we have gotten back some of the business records. But the former friend testified that he turned them over for "safe-keeping" to the investment company’s lawyer. We never got back the written contract between my client and the investment company – the contract that entitles my client to payment of $200,000. Go figure.
We sue the investment company. We file a complaint in court. A complaint is a formal document that states who’s being sued and what for. Their lawyer files a demurrer. A demurrer objects to the adequacy of the complaint. It’s a way of kicking out un-meritorious lawsuits almost before they start.
In his demurrer, the investment company’s lawyer argues that we must attach to our complaint the written contract between my client and the investment company, or we must state the contract's terms word-for-word. He cites cases to prove this. Of course, we can’t attach the contract, and we can’t quote it word-for-word, because it seems that the investment company’s lawyer has kept the contract from us. You wonder if he was pleased with himself as he filed the demurrer.
Naturally, I oppose the demurrer. And I point out that in all likelihood, the lawyer for the investment company has our copy of the contract. And I point out that in 2002 the California Supreme Court ruled that contracts need not be attached to complaints, and that the complaint need not quote the contract word-for-word. It’s good enough if the complaint pleads the contract’s legal effect. Which we did.
So the hearing on the demurrer is today. And the attorney for the investment company yammers and carries on. The judge listens to him. Then he doesn’t even turn to me for my response. He says, "Let’s get past the pleading stage. You have ten days to answer the complaint." We win. The demurrer fails.
The case will still be a hard fight. This case truly is David versus Goliath. And Goliath fights dirty.
My client is a tiny business. Two-hundred-thousand dollars is a big deal to her. To give you an idea, my client kept her business records in the back of a truck, because she didn't have an office. She can’t absorb a two-hundred-thousand-dollar loss. When the investment company withheld payment, my client ran short of money.
Running short of money, my client and her associate/brother missed a payment on the truck. The truck was owned by a colleague of my client, a former friend, who had over time become thick with the owners of the investment company. The former friend took back the truck in the middle of the night, with all of my client’s business records in it.
Through a pending lawsuit, we have gotten back some of the business records. But the former friend testified that he turned them over for "safe-keeping" to the investment company’s lawyer. We never got back the written contract between my client and the investment company – the contract that entitles my client to payment of $200,000. Go figure.
We sue the investment company. We file a complaint in court. A complaint is a formal document that states who’s being sued and what for. Their lawyer files a demurrer. A demurrer objects to the adequacy of the complaint. It’s a way of kicking out un-meritorious lawsuits almost before they start.
In his demurrer, the investment company’s lawyer argues that we must attach to our complaint the written contract between my client and the investment company, or we must state the contract's terms word-for-word. He cites cases to prove this. Of course, we can’t attach the contract, and we can’t quote it word-for-word, because it seems that the investment company’s lawyer has kept the contract from us. You wonder if he was pleased with himself as he filed the demurrer.
Naturally, I oppose the demurrer. And I point out that in all likelihood, the lawyer for the investment company has our copy of the contract. And I point out that in 2002 the California Supreme Court ruled that contracts need not be attached to complaints, and that the complaint need not quote the contract word-for-word. It’s good enough if the complaint pleads the contract’s legal effect. Which we did.
So the hearing on the demurrer is today. And the attorney for the investment company yammers and carries on. The judge listens to him. Then he doesn’t even turn to me for my response. He says, "Let’s get past the pleading stage. You have ten days to answer the complaint." We win. The demurrer fails.
The case will still be a hard fight. This case truly is David versus Goliath. And Goliath fights dirty.
Monday, November 8, 2010
Gambling on a Would-Be Cop Killer
My last client of the day hadn’t killed anyone.
I was doing pre-hearing meetings with my clients who were trying to get paroled from their life sentences. The other clients that I met that day had killed . But this client had fired 9mm rounds at a police sergeant without hitting him.
Because he had not killed but only tried to kill, he stands a fair chance some day of getting his freedom. Parole comes easier without blood crying out from the ground.
But his chance of getting parole at this time are nil. In the last two years, he has been convicted of three serious prison-rules violations. Two were weapon possession, one was battery on another prisoner. No parole commissioner will gamble on this client in the free community.
He signed the waiver of hearing, putting off his next hearing for three years. That was a good move. If he had gone to hearing, the commissioners would have denied him parole. And they could have put off his next hearing for up to 15 years. Waiving for three years gives him time to prove he can stay out of trouble. In three years, even if he doesn’t get parole, he’s less likely to get buried under long years until his next hearing after that. As long as he stays out of trouble. I told him that waiving three years might not be enough time.
It would have been easy to take the signed waiver, turn it in, and head home. I was tired of listening, tired of talking. And clients don’t call forth my best effort when they themselves seem to make no effort. Looking in this client’s eyes, hearing him talk, I had no sense that he had left his old ways behind. His prison record condemned him, too.
But you never know. You never know when the scales will fall from a prisoner’s eyes. You never know when he’ll tire of doing wrong and start doing right. You never know when his heart will tell him that his present ways will keep him in prison until his face is toothless, his body is in tatters, and the state releases him to a bleak old age and an unmourned death.
So I spent time with him after he signed the waiver. I told him what I could think of that would make him more likely some day to get parole. I gave him the basis to turn things around, if he wants to, and to show the parole commissioners that he is a new man, if he becomes one.
No commissioner would gamble with this client in the free community. But I was not gambling with community safety, only with my time.
I was doing pre-hearing meetings with my clients who were trying to get paroled from their life sentences. The other clients that I met that day had killed . But this client had fired 9mm rounds at a police sergeant without hitting him.
Because he had not killed but only tried to kill, he stands a fair chance some day of getting his freedom. Parole comes easier without blood crying out from the ground.
But his chance of getting parole at this time are nil. In the last two years, he has been convicted of three serious prison-rules violations. Two were weapon possession, one was battery on another prisoner. No parole commissioner will gamble on this client in the free community.
He signed the waiver of hearing, putting off his next hearing for three years. That was a good move. If he had gone to hearing, the commissioners would have denied him parole. And they could have put off his next hearing for up to 15 years. Waiving for three years gives him time to prove he can stay out of trouble. In three years, even if he doesn’t get parole, he’s less likely to get buried under long years until his next hearing after that. As long as he stays out of trouble. I told him that waiving three years might not be enough time.
It would have been easy to take the signed waiver, turn it in, and head home. I was tired of listening, tired of talking. And clients don’t call forth my best effort when they themselves seem to make no effort. Looking in this client’s eyes, hearing him talk, I had no sense that he had left his old ways behind. His prison record condemned him, too.
But you never know. You never know when the scales will fall from a prisoner’s eyes. You never know when he’ll tire of doing wrong and start doing right. You never know when his heart will tell him that his present ways will keep him in prison until his face is toothless, his body is in tatters, and the state releases him to a bleak old age and an unmourned death.
So I spent time with him after he signed the waiver. I told him what I could think of that would make him more likely some day to get parole. I gave him the basis to turn things around, if he wants to, and to show the parole commissioners that he is a new man, if he becomes one.
No commissioner would gamble with this client in the free community. But I was not gambling with community safety, only with my time.
Thursday, November 4, 2010
Sharp Elbow to a Brittle Place
Call him Mr. Cross.
Mr. Cross invested with my client’s son’s national business. Then the economy collapsed. The business crumbled. And Mr. Cross lost a lot of money.
My client’s son’s fortune crumbled with his business. Cross sued him, but he realizes that he’ll never get money out of my client’s son.
So, Cross looks to my client for his money back. My client was active with his son’s business. Cross thinks he has a case against my client.
Cross’s lawyer is untrustworthy. His states facts to the judge that aren’t true. Lawyers like that make a lawsuit hard – harder than it would otherwise be. But I turn from my point.
The battle is joined. And we find out that Cross has a felony conviction for bank fraud. And we find out that Cross has against him a restitution order for $15,000,000. Plus or minus.
Not that we want to harm a lawyer or his client who look for any chance to harm us and any chance to harm our client. Not that we bear a grudge against a lawyer who is willing to lie to do that. Not that we dislike a lawyer who withholds routine professional courtesies. Not at all. But if there is any lien on Cross’s assets, of course we want to get to the right place any money that we might have to pay.
So we send a letter to the federal probation office in New York that supervised Cross. We tell them about the lawsuit. And today, only days later, we get a notice of lien. It directs us to pay no money to anybody but the U.S. Marshal’s Office.
So if we win, our client pays nothing. And if we lose, Cross’s victims get money that otherwise would go to Cross and his lawyer.
It’s grand to do good.
Mr. Cross invested with my client’s son’s national business. Then the economy collapsed. The business crumbled. And Mr. Cross lost a lot of money.
My client’s son’s fortune crumbled with his business. Cross sued him, but he realizes that he’ll never get money out of my client’s son.
So, Cross looks to my client for his money back. My client was active with his son’s business. Cross thinks he has a case against my client.
Cross’s lawyer is untrustworthy. His states facts to the judge that aren’t true. Lawyers like that make a lawsuit hard – harder than it would otherwise be. But I turn from my point.
The battle is joined. And we find out that Cross has a felony conviction for bank fraud. And we find out that Cross has against him a restitution order for $15,000,000. Plus or minus.
Not that we want to harm a lawyer or his client who look for any chance to harm us and any chance to harm our client. Not that we bear a grudge against a lawyer who is willing to lie to do that. Not that we dislike a lawyer who withholds routine professional courtesies. Not at all. But if there is any lien on Cross’s assets, of course we want to get to the right place any money that we might have to pay.
So we send a letter to the federal probation office in New York that supervised Cross. We tell them about the lawsuit. And today, only days later, we get a notice of lien. It directs us to pay no money to anybody but the U.S. Marshal’s Office.
So if we win, our client pays nothing. And if we lose, Cross’s victims get money that otherwise would go to Cross and his lawyer.
It’s grand to do good.
Wednesday, November 3, 2010
The Officer Who Had a Small Opinion of Me
My client gets arrested for drunk driving. Now, of course, the Department of Motor Vehicles wants to suspend his license. Today is his telephone hearing. The DMV calls the CHP officer to testify, and I cross-examine him.
The officer thinks highly of himself, or he thinks little of of me, because he starts out giving smart-guy answers. Fine. I love being underestimated. Especially during cross-examination.
A mistake in his report opens the way for some questions: the times of the preliminary-alcohol-screening-device tests in the DMV report don’t mesh with the time of arrest. It’s a small mistake; it's not a big deal, if only the officer just admits that he made a mistake. But no. The officer wants to be clever. He says the times are off because he used the dispatch center’s time for the time of arrest, but his wristwatch for the PAS-test times.
So I ask him, if that is the case, why the PAS-test times in his DMV report don’t match the PAS-test times in the arrest report? (The times in the arrest report mesh perfectly with the time of arrest.) He can’t explain. He should have admitted from the start that he made a careless mistake. But he didn’t. And he should have known his own reports better than I did.
When the officer gets frustrated, he pretends not to know the context of the question. If I ask about field sobriety tests, he pretends not to understand the question, unless I put the entire context into the question itself. Fine. That might confuse and frustrate a new lawyer, but this is almost my fourth decade of cross-examining witnesses. If he wants the whole context in each question, I am happy to meet his needs. ("Officer, about the second field sobriety test that you gave to my client, next to his car, on the night of his arrest, when you explained the field sobriety test, did you . . .?")
And the officer uses that most common tactic of evasion: if he thinks an answer will help my client, he answers the question he wants to answer, not the question I ask. And when he does that, I ask the question again, word-for-word. The third time I do that, he says, "Counsel, I answered that question three times. I said . . .." And I reply, forcefully, "Officer, you have not answered that question once." Because he hasn’t. I don't let go until I get a simple, truthful answer.
I won't know the result of the hearing for a few days. But I know three things. First, I had a good time. Second, my client was very pleased with the aggressive questioning of the officer. Third, when the officer goes on duty tonight, he's going to give some driver a very hard time.
The officer thinks highly of himself, or he thinks little of of me, because he starts out giving smart-guy answers. Fine. I love being underestimated. Especially during cross-examination.
A mistake in his report opens the way for some questions: the times of the preliminary-alcohol-screening-device tests in the DMV report don’t mesh with the time of arrest. It’s a small mistake; it's not a big deal, if only the officer just admits that he made a mistake. But no. The officer wants to be clever. He says the times are off because he used the dispatch center’s time for the time of arrest, but his wristwatch for the PAS-test times.
So I ask him, if that is the case, why the PAS-test times in his DMV report don’t match the PAS-test times in the arrest report? (The times in the arrest report mesh perfectly with the time of arrest.) He can’t explain. He should have admitted from the start that he made a careless mistake. But he didn’t. And he should have known his own reports better than I did.
When the officer gets frustrated, he pretends not to know the context of the question. If I ask about field sobriety tests, he pretends not to understand the question, unless I put the entire context into the question itself. Fine. That might confuse and frustrate a new lawyer, but this is almost my fourth decade of cross-examining witnesses. If he wants the whole context in each question, I am happy to meet his needs. ("Officer, about the second field sobriety test that you gave to my client, next to his car, on the night of his arrest, when you explained the field sobriety test, did you . . .?")
And the officer uses that most common tactic of evasion: if he thinks an answer will help my client, he answers the question he wants to answer, not the question I ask. And when he does that, I ask the question again, word-for-word. The third time I do that, he says, "Counsel, I answered that question three times. I said . . .." And I reply, forcefully, "Officer, you have not answered that question once." Because he hasn’t. I don't let go until I get a simple, truthful answer.
I won't know the result of the hearing for a few days. But I know three things. First, I had a good time. Second, my client was very pleased with the aggressive questioning of the officer. Third, when the officer goes on duty tonight, he's going to give some driver a very hard time.
Tuesday, November 2, 2010
A Heartbreaking Blip
I had a deadline today, but, with sadness, I let it go by.
My client gets drunk, he gets into his car, and he gets into an accident. He bumps the back of a woman’s car, and he causes minor damage to her back bumper.
The woman immediately claims grave injury to herself and her young children. She hustles herself and her children to the emergency room. On the strength of her claims, the District Attorney’s office charges my client with the crime of drunk-driving-with-injury.
I persuade the DA’s Office that neither the woman nor her children were injured. So my client pleads only to drunk-driving, not drunk-driving-with-injury.
After my client is on probation for two-and-a-half years, this woman goes to the DA’s Office and demands restitution. She shows the DA’s Office $35,000 in medical bills (from the day of the accident – there was no follow-up care). And she claims $7,000 for a month of lost wages. And she claims spa treatments, psychological counseling, and car rental. She has no receipts.
I learn that the medical bills had been paid by Medi-Cal (free medical insurance for poor people). But by a quirk of the law, the woman gets in restitution what Medi-Cal paid on her behalf. I also discover that Medi-Cal paid far less than $35,000. Also, I am puzzled that a woman who gets free medical insurance would have a month’s lost wages of $7,000. And if she can’t go to work, why is there no medical after-care after the day of the accident?
So I argue fraud. And I argue that because of the fraud, the woman should get nothing. This is a novel argument. It is grounded in law, but I never before heard of it being used in a restitution case.
One day my client asks, "When is my probation over?" I check, and his three years is up. So we point out to the judge that it’s too late to add restitution as a term of my client’s probation, because probation is over.
The judge asks for legal memos. Mine is due today.
But my research shows that the judge can after-the-fact extend probation and add restitution. I went down every research path possible, but the law is clear. Case law did not vary on this issue. The judge can order restitution, even though my client’s probation expired.
So I did not file the legal memo today. We’re skunked on the law. It’s back to arguing that this woman is a cheat and a fraud, and that for that reason she should get nothing.
Sometimes the law breaks your heart.
My client gets drunk, he gets into his car, and he gets into an accident. He bumps the back of a woman’s car, and he causes minor damage to her back bumper.
The woman immediately claims grave injury to herself and her young children. She hustles herself and her children to the emergency room. On the strength of her claims, the District Attorney’s office charges my client with the crime of drunk-driving-with-injury.
I persuade the DA’s Office that neither the woman nor her children were injured. So my client pleads only to drunk-driving, not drunk-driving-with-injury.
After my client is on probation for two-and-a-half years, this woman goes to the DA’s Office and demands restitution. She shows the DA’s Office $35,000 in medical bills (from the day of the accident – there was no follow-up care). And she claims $7,000 for a month of lost wages. And she claims spa treatments, psychological counseling, and car rental. She has no receipts.
I learn that the medical bills had been paid by Medi-Cal (free medical insurance for poor people). But by a quirk of the law, the woman gets in restitution what Medi-Cal paid on her behalf. I also discover that Medi-Cal paid far less than $35,000. Also, I am puzzled that a woman who gets free medical insurance would have a month’s lost wages of $7,000. And if she can’t go to work, why is there no medical after-care after the day of the accident?
So I argue fraud. And I argue that because of the fraud, the woman should get nothing. This is a novel argument. It is grounded in law, but I never before heard of it being used in a restitution case.
One day my client asks, "When is my probation over?" I check, and his three years is up. So we point out to the judge that it’s too late to add restitution as a term of my client’s probation, because probation is over.
The judge asks for legal memos. Mine is due today.
But my research shows that the judge can after-the-fact extend probation and add restitution. I went down every research path possible, but the law is clear. Case law did not vary on this issue. The judge can order restitution, even though my client’s probation expired.
So I did not file the legal memo today. We’re skunked on the law. It’s back to arguing that this woman is a cheat and a fraud, and that for that reason she should get nothing.
Sometimes the law breaks your heart.
Monday, November 1, 2010
Unexpected Help
Help came from an unexpected place.
I did a lifer hearing today. A lifer hearing is an effort to get parole by a prisoner in prison for life. He goes in front of two commissioners who decide whether he stays in prison or goes free. (But the governor has the last word: the governor can block parole.)
My client was helped today by the prosecutor sent from the county of his conviction. She supported parole. That almost never happens. She supported parole because a year ago my client testified against the drug kingpin who literally called the shots - ordered the murder - that sent my client to prison. My client testified against him at risk to himself and to his family.
My client was the getaway driver. He has served 21 years.
My client got parole. When the chairman said that my client was suitable for parole, my client gaped. Then he came close to breaking down.
Now his freedom goes to the governor.
Outside the small prison hearing room, there is a large room where prisoners and visitors meet. Usually, these rooms have prisoner-made artwork. This room had a single painting. The painting showed a sandy beach, and waves, and rocks with white water around them. It showed arching palm trees. It showed green plants and a blue parrot and a red parrot. It showed a small, empty boat on the sand. The painting is freedom pornography.
I did a lifer hearing today. A lifer hearing is an effort to get parole by a prisoner in prison for life. He goes in front of two commissioners who decide whether he stays in prison or goes free. (But the governor has the last word: the governor can block parole.)
My client was helped today by the prosecutor sent from the county of his conviction. She supported parole. That almost never happens. She supported parole because a year ago my client testified against the drug kingpin who literally called the shots - ordered the murder - that sent my client to prison. My client testified against him at risk to himself and to his family.
My client was the getaway driver. He has served 21 years.
My client got parole. When the chairman said that my client was suitable for parole, my client gaped. Then he came close to breaking down.
Now his freedom goes to the governor.
Outside the small prison hearing room, there is a large room where prisoners and visitors meet. Usually, these rooms have prisoner-made artwork. This room had a single painting. The painting showed a sandy beach, and waves, and rocks with white water around them. It showed arching palm trees. It showed green plants and a blue parrot and a red parrot. It showed a small, empty boat on the sand. The painting is freedom pornography.
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