Jump to content
Fantasy Football - Footballguys Forums

The Lawyer Thread Where We Stop Ruining Other Threads


Recommended Posts

Question for the law-type people; a little background first:

Last Summer my house was struck by lightning and burned down. I hired a GC to do the repairs. After several months of delays, lies, and bull####, he flat out quit, after taking a significant portion of the insurance claim. It's been determined that many of the items that he billed for were not performed, and he has ignored my requests for receipts to support the supplements that he claims he performed.

I do have an attorney ready to roll, but in the interest of saving time, I would like to avoid suing him if possible. I would like to send him a certified letter detailing what I feel that he owes me (including additional incurred cost since our insurance provided living expenses run out next month and our house won't be liveable by then).

In the letter, I would detail the steps that I will take if he doesn't comply, up to and including reporting him to the state insurance commissioner. He also tried to get me to commit fraud by lying on a police report to inflate the value of some items that were stolen.

My question- what is the line between a legitimate threat of the actions that I will pursue and blackmail/extortion?

Also look into whether your state requires builder/home improvement licensing and if so, go after his license. I did that to a home improvement guy who ripped off my former partner to the tune of $50K, and the guy has never been able to work in the state again.

Link to post
Share on other sites
  • Replies 6.7k
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

Popular Posts

I don't know if there's a real pinnacle to this profession. Some times it really seems like there isn't one. But I do now know that when you're standing there waiting and hoping for two words instead

Made partner today. 

Big news for The_Son - just found out he got the Rubenstein Scholarship from Chicago! Full tuition + a $20,000 per year stipend. Last week he was fortunate enough to be offered a full-tuition scholars

Question for the law-type people; a little background first:

Last Summer my house was struck by lightning and burned down. I hired a GC to do the repairs. After several months of delays, lies, and bull####, he flat out quit, after taking a significant portion of the insurance claim. It's been determined that many of the items that he billed for were not performed, and he has ignored my requests for receipts to support the supplements that he claims he performed.

I do have an attorney ready to roll, but in the interest of saving time, I would like to avoid suing him if possible. I would like to send him a certified letter detailing what I feel that he owes me (including additional incurred cost since our insurance provided living expenses run out next month and our house won't be liveable by then).

In the letter, I would detail the steps that I will take if he doesn't comply, up to and including reporting him to the state insurance commissioner. He also tried to get me to commit fraud by lying on a police report to inflate the value of some items that were stolen.

My question- what is the line between a legitimate threat of the actions that I will pursue and blackmail/extortion?

There's a whole line of cases on that in California. Generally, making a threat to sue is not extortion, but threatening to do something else if the recipient doesn't settle up may be.

Better idea: keep your demand letter focused on the relief yo would be asking for in the action that you're threatening to bring and avoid extracurriculars.

Best idea: just skip demand letters entirely in situations like yours (where litigation seems pretty inevitable), as Christo and Yankee said. When I put on my plaintiff's attorney hat, I typically find them utterly and totally useless, and indeed, they can even harm your case by making you look eager to compromise. Just my two cents as to this paragraph, though; I know loads of practitioners who think demand letters before suing are indispensable.

Link to post
Share on other sites

Question for the law-type people; a little background first:

Last Summer my house was struck by lightning and burned down. I hired a GC to do the repairs. After several months of delays, lies, and bull####, he flat out quit, after taking a significant portion of the insurance claim. It's been determined that many of the items that he billed for were not performed, and he has ignored my requests for receipts to support the supplements that he claims he performed.

I do have an attorney ready to roll, but in the interest of saving time, I would like to avoid suing him if possible. I would like to send him a certified letter detailing what I feel that he owes me (including additional incurred cost since our insurance provided living expenses run out next month and our house won't be liveable by then).

In the letter, I would detail the steps that I will take if he doesn't comply, up to and including reporting him to the state insurance commissioner. He also tried to get me to commit fraud by lying on a police report to inflate the value of some items that were stolen.

My question- what is the line between a legitimate threat of the actions that I will pursue and blackmail/extortion?

Also look into whether your state requires builder/home improvement licensing and if so, go after his license. I did that to a home improvement guy who ripped off my former partner to the tune of $50K, and the guy has never been able to work in the state again.

Going after his license is definitely on the agenda.

Question for the law-type people; a little background first:

Last Summer my house was struck by lightning and burned down. I hired a GC to do the repairs. After several months of delays, lies, and bull####, he flat out quit, after taking a significant portion of the insurance claim. It's been determined that many of the items that he billed for were not performed, and he has ignored my requests for receipts to support the supplements that he claims he performed.

I do have an attorney ready to roll, but in the interest of saving time, I would like to avoid suing him if possible. I would like to send him a certified letter detailing what I feel that he owes me (including additional incurred cost since our insurance provided living expenses run out next month and our house won't be liveable by then).

In the letter, I would detail the steps that I will take if he doesn't comply, up to and including reporting him to the state insurance commissioner. He also tried to get me to commit fraud by lying on a police report to inflate the value of some items that were stolen.

My question- what is the line between a legitimate threat of the actions that I will pursue and blackmail/extortion?

There's a whole line of cases on that in California. Generally, making a threat to sue is not extortion, but threatening to do something else if the recipient doesn't settle up may be.

Better idea: keep your demand letter focused on the relief yo would be asking for in the action that you're threatening to bring and avoid extracurriculars.

Best idea: just skip demand letters entirely in situations like yours (where litigation seems pretty inevitable), as Christo and Yankee said. When I put on my plaintiff's attorney hat, I typically find them utterly and totally useless, and indeed, they can even harm your case by making you look eager to compromise. Just my two cents as to this paragraph, though; I know loads of practitioners who think demand letters before suing are indispensable.

Interesting. I'll be speaking with my attorney on Monday, so I'll see what he says.

Thanks to all who responded.

Link to post
Share on other sites
Lawyer Sues for Overtime, Claims Doc Review Isn't Legal Practice
By Casey C. Sullivan, Esq. on June 2, 2015 9:09 AM

It's not exactly the glamorous legal work shown on "The Good Wife" -- or even "Night Court" -- but document review makes up a fair share of many attorneys' work. In fact, document review is one of the great unifiers of the legal profession. Highly paid associates at BigLaw firms often slog through tedious document review just like their poorly paid contract attorney counterparts.

But is document review even the practice of law? Not according to one lawyer, who is arguing that his year plus of doc review for Skadden was so rote and mechanical it couldn't possibly be considered legal work -- and thus, he should be entitled to significant overtime pay.

A Human Ctrl + F

Before suing for overtime pay, attorney David Lola worked for fifteen months doing document review for Skadden. He was making $25 an hour putting in 45 to 55 hours a week without ever receiving overtime. (Think about that the next time an associate complains about their bonuses.) Under the Fair Labor Standards Act, he would be entitled to time and a half for those extra hours, except that "bona fide professional" work, such as the practice of law, is exempt from the Act's requirements.

Lola's doc review position was fairly typical. His work involved, in its entirety, looking at for predetermined search terms in discovery documents, placing documents in predetermined categories and sometimes redacting sections. The work sounds more like a professional "ctrl + f" than the practice of law, but it was legal enough for the Southern District of New York, who ruled against him.

The Worst of Both Worlds

There's a surprising amount of debate as to whether document review is actually the practice of law. On the one hand, some view the practice of law as flexible enough to encompass both high level legal problem solving and more administrative tasks. The district court in Lola's case came down on this side, noting the simplistic nature of his work but describing it as "unequivocally the practice of law."

Many attorneys have taken issue with the rote nature of the work, however. Solo practitioner Mirriam Seddiq, who once worked in document review, attests that "there is no actual lawyering involved in document review," according to the ABA Journal.

For lawyers such as Lola, however, neither answer can be fully satisfying. On the one hand, if doc review is not the practice of law, Lola will be entitled to a fair amount of back pay. For doc review lawyers who aren't already getting overtime, that may be the closest they get to an annual bonus. On the other hand, if document review is not the practice of law, there's no reason to hire those contract lawyers in the first place. Heck, why not have high school students do it? Or robots?

Link to post
Share on other sites
Lawyer Sues for Overtime, Claims Doc Review Isn't Legal Practice
By Casey C. Sullivan, Esq. on June 2, 2015 9:09 AM

It's not exactly the glamorous legal work shown on "The Good Wife" -- or even "Night Court" -- but document review makes up a fair share of many attorneys' work. In fact, document review is one of the great unifiers of the legal profession. Highly paid associates at BigLaw firms often slog through tedious document review just like their poorly paid contract attorney counterparts.

But is document review even the practice of law? Not according to one lawyer, who is arguing that his year plus of doc review for Skadden was so rote and mechanical it couldn't possibly be considered legal work -- and thus, he should be entitled to significant overtime pay.

A Human Ctrl + F

Before suing for overtime pay, attorney David Lola worked for fifteen months doing document review for Skadden. He was making $25 an hour putting in 45 to 55 hours a week without ever receiving overtime. (Think about that the next time an associate complains about their bonuses.) Under the Fair Labor Standards Act, he would be entitled to time and a half for those extra hours, except that "bona fide professional" work, such as the practice of law, is exempt from the Act's requirements.

Lola's doc review position was fairly typical. His work involved, in its entirety, looking at for predetermined search terms in discovery documents, placing documents in predetermined categories and sometimes redacting sections. The work sounds more like a professional "ctrl + f" than the practice of law, but it was legal enough for the Southern District of New York, who ruled against him.

The Worst of Both Worlds

There's a surprising amount of debate as to whether document review is actually the practice of law. On the one hand, some view the practice of law as flexible enough to encompass both high level legal problem solving and more administrative tasks. The district court in Lola's case came down on this side, noting the simplistic nature of his work but describing it as "unequivocally the practice of law."

Many attorneys have taken issue with the rote nature of the work, however. Solo practitioner Mirriam Seddiq, who once worked in document review, attests that "there is no actual lawyering involved in document review," according to the ABA Journal.

For lawyers such as Lola, however, neither answer can be fully satisfying. On the one hand, if doc review is not the practice of law, Lola will be entitled to a fair amount of back pay. For doc review lawyers who aren't already getting overtime, that may be the closest they get to an annual bonus. On the other hand, if document review is not the practice of law, there's no reason to hire those contract lawyers in the first place. Heck, why not have high school students do it? Or robots?

It pays my bills.

Edited by TheAristocrat
Link to post
Share on other sites

Ok, stupid lawyer question time.

Is there a statute of limitations when a person is demanding reimbursement(s) for costs or fees during a partition action?

For example. Partition complaint filed because 4 people owned a house for well over a decade. One of the parties brings forth a check for a significant amount of money that is at least 10 years old and probably witten when they all took title. Never anything in writing as to an agreement for reimbursement for that. But of course, now that there is a partition, the person wants 3/4 of the check back. Of all the partitions I've dealt with this has never come up.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

  • Like 6
Link to post
Share on other sites

Ok, stupid lawyer question time.

Is there a statute of limitations when a person is demanding reimbursement(s) for costs or fees during a partition action?

For example. Partition complaint filed because 4 people owned a house for well over a decade. One of the parties brings forth a check for a significant amount of money that is at least 10 years old and probably witten when they all took title. Never anything in writing as to an agreement for reimbursement for that. But of course, now that there is a partition, the person wants 3/4 of the check back. Of all the partitions I've dealt with this has never come up.

Okay, stupid lawyer question in response. What does the check have to do with costs and fees?

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead. Edited by NCCommish
Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

In the theoretical sense, I understand the sentiment that plea bargaining in a bad thing. Heck, I wrote my college thesis on the issue (Albert Alschuler is probably the leading scholar on the issue and wrote some nice articles on the topic) and while I ultimately concluded that plea bargaining is a "necessary evil", there were several compelling reasons why abolishing plea bargaining seemed like a "just" idea. Now, that I'm practicing, I've had plenty of clients get frustrated with the situation where the state has made them an offer that, when compared to the much harsher trial ranges they face is too good to pass up, feel like the state is "forcing" them into taking a plea instead of caring about whether or not they are guilty and giving them their day in court.

But that said, at least in my experience, in practice plea bargaining is an invaluable tool and does promote justice and fairness. Concerning this particular prosecutor, it's an absolutely terrible thing, at least in my opinion, that she refuses to "deal" (I put that in quotations because she does actually give plea offers, it's just that they often are very probably the same for the same punishment/amount of prison time that a defendant would get in trial so there's no incentive to accept the plea deal). I say this for two reasons, both practical yet greatly distinct from one another.

1. In theory, and as you put it, the tendency is to view cases as people being either guilty or innocent. In reality, most cases are hardly ever that black and white. Generally, the facts of a case are this: person x does some pretty stupid/wrong and the state charges that person with crimes x, y, z. Charge z carries with it some pretty darn harsh consequences and, on its face, seems like a bit of a stretch. Person x certainly isn't "innocent" in the situation, but it's questionable whether the state can actually prove z and it's also questionable whether the consequences charge z carry fit the person's stupid actions. My trial that I referenced above is the perfect example: my client was caught with over one-half ounce of meth on him and made a really dumb statement to the arresting officer that he was just a "drop off" guy. The state charges him with possession but they also then charge him with the additional counts of transporting for sale and possession with the intent to sell (based on the quantity). Why this has a huge practical impact for my client is because mere possession, while still a felony, likely gets him probation whereas the sales charges require a mandatory 5-15 in prison with no chance for good time. That difference is huge. So, in this case, the state's evidence on sales isn't great and my client isn't innocent (heck, at trial I called my client "guilty" and "stupid" in my closing argument -- we had conceded the possession charge) so we are basically gambling 5-10 years in prison on whether a random set of eight people think my client was selling. We were fortunate enough that the jury saw it our way and concluded he wasn't selling, but they certainly could have gone the other way based on the weight and admissions. This gamble is usually avoided by plea bargaining.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

  • Like 1
Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

We are on our way on the drug thing. And while I understand that plea bargains grease the wheels that is the opposite of how justice should be dispensed. The wheels are supposed to move slowly and with consideration. What we have crafted is a twisted Let's Make a Deal brand of justice where police and prosecutors hold every card and only give you two doors to choose from Door A bad but wait there is door b which is real bad. Only people with money can work this system everyone else gets steamrolled. Your client was ready to make a deal rather than face door b. But today he is a free man instead.

I want to make clear this isn't an indictment of defense lawyers. Or all prosecutors. Or even all judges. I just think we have lost the path and too many people seem fine with it. We have gotten so draconian and cavalier.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

We are on our way on the drug thing. And while I understand that plea bargains grease the wheels that is the opposite of how justice should be dispensed. The wheels are supposed to move slowly and with consideration. What we have crafted is a twisted Let's Make a Deal brand of justice where police and prosecutors hold every card and only give you two doors to choose from Door A bad but wait there is door b which is real bad. Only people with money can work this system everyone else gets steamrolled. Your client was ready to make a deal rather than face door b. But today he is a free man instead.

I want to make clear this isn't an indictment of defense lawyers. Or all prosecutors. Or even all judges. I just think we have lost the path and too many people seem fine with it. We have gotten so draconian and cavalier.

Again, in theory, I totally get where you're coming from. But we're going to have to just agree to disagree. In my opinion some of the most "just" results I have seen have come from plea bargaining. It's an invaluable piece of this imperfect but well-intentioned process.

Link to post
Share on other sites

Just got contacted by an out of state firm in my field that wants to open an office here and is looking for someone to head it up.

Meeting the managing partner for drinks on Friday.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

We are on our way on the drug thing. And while I understand that plea bargains grease the wheels that is the opposite of how justice should be dispensed. The wheels are supposed to move slowly and with consideration. What we have crafted is a twisted Let's Make a Deal brand of justice where police and prosecutors hold every card and only give you two doors to choose from Door A bad but wait there is door b which is real bad. Only people with money can work this system everyone else gets steamrolled. Your client was ready to make a deal rather than face door b. But today he is a free man instead.

I want to make clear this isn't an indictment of defense lawyers. Or all prosecutors. Or even all judges. I just think we have lost the path and too many people seem fine with it. We have gotten so draconian and cavalier.

Again, in theory, I totally get where you're coming from. But we're going to have to just agree to disagree. In my opinion some of the most "just" results I have seen have come from plea bargaining. It's an invaluable piece of this imperfect but well-intentioned process.

I take issue that NCC states the wheels of justice should move slowly. I feel waiving time is far too prevalent, especially for low-level offenses.

There's a big issue in NYC about people who have been in jail for a year plus without being convicted, all because they waived their right at some point, generally on advice of counsel.

These guys would have been out already had they been convicted, let alone if they bargained for a lesser offense.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

We are on our way on the drug thing. And while I understand that plea bargains grease the wheels that is the opposite of how justice should be dispensed. The wheels are supposed to move slowly and with consideration. What we have crafted is a twisted Let's Make a Deal brand of justice where police and prosecutors hold every card and only give you two doors to choose from Door A bad but wait there is door b which is real bad. Only people with money can work this system everyone else gets steamrolled. Your client was ready to make a deal rather than face door b. But today he is a free man instead.

I want to make clear this isn't an indictment of defense lawyers. Or all prosecutors. Or even all judges. I just think we have lost the path and too many people seem fine with it. We have gotten so draconian and cavalier.

Again, in theory, I totally get where you're coming from. But we're going to have to just agree to disagree. In my opinion some of the most "just" results I have seen have come from plea bargaining. It's an invaluable piece of this imperfect but well-intentioned process.

I take issue that NCC states the wheels of justice should move slowly. I feel waiving time is far too prevalent, especially for low-level offenses.

There's a big issue in NYC about people who have been in jail for a year plus without being convicted, all because they waived their right at some point, generally on advice of counsel.

These guys would have been out already had they been convicted, let alone if they bargained for a lesser offense.

I have no idea what you mean. If they are uncharged and in jail then there are rules on how long that can go. If they are charged they should gonto trial within a reasonable time. Again that is settled law.

If we really want to talk about keeping people in jail with no trial lets talk the overuse of bail and how it keeps the poor in jail for relatively minor offenses for long periods of time.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

We are on our way on the drug thing. And while I understand that plea bargains grease the wheels that is the opposite of how justice should be dispensed. The wheels are supposed to move slowly and with consideration. What we have crafted is a twisted Let's Make a Deal brand of justice where police and prosecutors hold every card and only give you two doors to choose from Door A bad but wait there is door b which is real bad. Only people with money can work this system everyone else gets steamrolled. Your client was ready to make a deal rather than face door b. But today he is a free man instead.

I want to make clear this isn't an indictment of defense lawyers. Or all prosecutors. Or even all judges. I just think we have lost the path and too many people seem fine with it. We have gotten so draconian and cavalier.

Again, in theory, I totally get where you're coming from. But we're going to have to just agree to disagree. In my opinion some of the most "just" results I have seen have come from plea bargaining. It's an invaluable piece of this imperfect but well-intentioned process.

I take issue that NCC states the wheels of justice should move slowly. I feel waiving time is far too prevalent, especially for low-level offenses.

There's a big issue in NYC about people who have been in jail for a year plus without being convicted, all because they waived their right at some point, generally on advice of counsel.

These guys would have been out already had they been convicted, let alone if they bargained for a lesser offense.

I have no idea what you mean. If they are uncharged and in jail then there are rules on how long that can go. If they are charged they should gonto trial within a reasonable time. Again that is settled law.

.

My understanding is that the laws that provide for a speedy trial can be waived/postponed for a variety of reasons in some states, NY included.

Link to post
Share on other sites

So a couple years ago this up and coming, gung-ho prosecutor in my jurisdiction got put in charge of the drug prosecution division. Prior to her being there that practice area was smooth: prosecutors were reasonable, plea offers with incentives were made, and some nod towards rehabilitation was considered. However, she changed all that and instituted cross the board policies where all plea offers were essentially "trial offers" and has turned that area of criminal law practice into an essential nightmare. She's also not incredibly nice about it and she'll openly laugh at plea offers and scoff at particular trial defenses. She did so in this case. So we had trial this week.

Jury was out for twenty minutes. Not guilty. :pickle:

Congrats and it seems like it's a good thing she doesn't like to deal. In fact given what keeps coming to light about the "justice" system perhaps a few less deals are in order. I wonder if as many innocents would have records if a jury decided instead.

2. The practical costs of eliminating plea bargaining are HUGE. While most people understand that death penalty trials are costly, for those same reasons doing regular criminal trials also cost a lot of money. The more trials means more judges, prosecutors, and public defenders are needed. If a defendant goes to trial and loses there is no reason not to appeal so the state will need to pay for appellate attorneys and our appellate courts will be flooded. In my jurisdiction, this prosecutor's new plea policy has costs the small, rural county over 100k in additional expenses on appellate attorney appointments alone. And, of course, county and state administrators don't want to either raise taxes or allocate the appropriate funding, so such a system cannot support itself.

Maybe if we abolished plea bargains, it would get so prohibitively costly that the state would ONLY prosecute actions that were serious and our prisons wouldn't be flooded with nonviolent offenders.

Well, to do that we'd probably have to do things like stop criminalizing drugs, get rid of repetitive offender laws, and explain to victims of lesser crimes (like assault, theft of under like 1k, etc.) why we aren't punishing the people who have wronged them.

Highly suspect this wouldn't fly.

We are on our way on the drug thing. And while I understand that plea bargains grease the wheels that is the opposite of how justice should be dispensed. The wheels are supposed to move slowly and with consideration. What we have crafted is a twisted Let's Make a Deal brand of justice where police and prosecutors hold every card and only give you two doors to choose from Door A bad but wait there is door b which is real bad. Only people with money can work this system everyone else gets steamrolled. Your client was ready to make a deal rather than face door b. But today he is a free man instead.

I want to make clear this isn't an indictment of defense lawyers. Or all prosecutors. Or even all judges. I just think we have lost the path and too many people seem fine with it. We have gotten so draconian and cavalier.

Again, in theory, I totally get where you're coming from. But we're going to have to just agree to disagree. In my opinion some of the most "just" results I have seen have come from plea bargaining. It's an invaluable piece of this imperfect but well-intentioned process.

I take issue that NCC states the wheels of justice should move slowly. I feel waiving time is far too prevalent, especially for low-level offenses.

There's a big issue in NYC about people who have been in jail for a year plus without being convicted, all because they waived their right at some point, generally on advice of counsel.

These guys would have been out already had they been convicted, let alone if they bargained for a lesser offense.

I have no idea what you mean. If they are uncharged and in jail then there are rules on how long that can go. If they are charged they should gonto trial within a reasonable time. Again that is settled law.

.

My understanding is that the laws that provide for a speedy trial can be waived/postponed for a variety of reasons in some states, NY included.

Learn something new daily. Not sure why anyone would do that. I hear Rikers isn't much fun.

Link to post
Share on other sites
I have no idea what you mean. If they are uncharged and in jail then there are rules on how long that can go. If they are charged they should gonto trial within a reasonable time. Again that is settled law.

.

My understanding is that the laws that provide for a speedy trial can be waived/postponed for a variety of reasons in some states, NY included.

Learn something new daily. Not sure why anyone would do that. I hear Rikers isn't much fun.

Speedy trial rights are waived a ton. And there are several reasons for that, some of them obvious:

1. It takes quite a bit of time to properly work a case and prep a trial. You likely need to get an investigator, interview witnesses, gather and prepare evidence, and litigate out a myriad of pre-trial issues (e.g. whether the Defendant's statement can be used against him, whether some evidence needs to be throw out because of an illegal search, whether the Defendant's priors can be used against him, etc.). All this stuff needs to get done. So, in cases where a defendant may be look at a long prison sentence and is getting credit for the time he's sitting in the county jail awaiting trial, it's worth spending a few dozen or so more days in county if it means a better chance of not spending years in prison.

2. When a defendant is out of custody pending trial and therefore is more than happy to delay potential doom, sometimes it is very favorable to the defendant for the trial to be delayed. While ethical rules prevent the defense from intentionally delaying the trial, the longer the trial is pending the more likely a state's witness may move away or memories get shoddy. There's also the chance that the case could change from one prosecutor to another and a new prosecutor is a new opportunity for a better plea offer. So, it's often good defense strategy to not push a trial date being set or doing anything to make the prosecutor start to get antsy to try the case. Note: the downside to this is that this does provide the defendant more time and opportunity to get new charges.

3. If a defendant is in custody for a long time pending a trial, oftentimes that is because the defendant has blown through several different attorneys. It is unfortunately not horribly uncommon for a defendant to be rather choosy about his attorney -- whether court appointed or retained. Generally, the court will look to appease a defendant as much as possible (especially if the defense attorney is indicating that the attorney-client relationship is strained or combative) but getting a new attorney means the new attorney needs time to get caught up on the case. So usually a defendant will have to agree to delay his trial in order to get a new attorney.

4. You won't like this reason as it paints plea bargaining in a bad light, but there are many prosecutors who have a "if you set for trial or file any substantive motions (e.g. motion to suppress, or even a demand for speedy trial) then all plea negotiations are off" policy. If that's the case, defending the case may take a lot longer since the process gets broken into two informal phases: 1) spend a few months trying to negotiate the best deal possible; 2) if and when that doesn't work, only then can you begin the trial prep process as I described above. Accordingly, since generally there are going to be plea options that are far more favorable than the statutorily required potential sentencing outcomes if the defendant gets convicted, the defendant and his attorney are likely going to forego speedy trial rights to try to take as much advantage as possible of the plea bargaining process.

Edited by Zow
Link to post
Share on other sites

Speedy trial rights are waived a ton. And there are several reasons for that, some of them obvious:

1. It takes quite a bit of time to properly work a case and prep a trial. You likely need to get an investigator, interview witnesses, gather and prepare evidence, and litigate out a myriad of pre-trial issues (e.g. whether the Defendant's statement can be used against him, whether some evidence needs to be throw out because of an illegal search, whether the Defendant's priors can be used against him, etc.). All this stuff needs to get done. So, in cases where a defendant may be look at a long prison sentence and is getting credit for the time he's sitting in the county jail awaiting trial, it's worth spending a few dozen or so more days in county if it means a better chance of not spending years in prison.

2. When a defendant is out of custody pending trial and therefore is more than happy to delay potential doom, sometimes it is very favorable to the defendant for the trial to be delayed. While ethical rules prevent the defense from intentionally delaying the trial, the longer the trial is pending the more likely a state's witness may move away or memories get shoddy. There's also the chance that the case could change from one prosecutor to another and a new prosecutor is a new opportunity for a better plea offer. So, it's often good defense strategy to not push a trial date being set or doing anything to make the prosecutor start to get antsy to try the case. Note: the downside to this is that this does provide the defendant more time and opportunity to get new charges.

3. If a defendant is in custody for a long time pending a trial, oftentimes that is because the defendant has blown through several different attorneys. It is unfortunately not horribly uncommon for a defendant to be rather choosy about his attorney -- whether court appointed or retained. Generally, the court will look to appease a defendant as much as possible (especially if the defense attorney is indicating that the attorney-client relationship is strained or combative) but getting a new attorney means the new attorney needs time to get caught up on the case. So usually a defendant will have to agree to delay his trial in order to get a new attorney.

4. You won't like this reason as it paints plea bargaining in a bad light, but there are many prosecutors who have a "if you set for trial or file any substantive motions (e.g. motion to suppress, or even a demand for speedy trial) then all plea negotiations are off" policy. If that's the case, defending the case may take a lot longer since the process gets broken into two informal phases: 1) spend a few months trying to negotiate the best deal possible; 2) if and when that doesn't work, only then can you begin the trial prep process as I described above. Accordingly, since generally there are going to be plea options that are far more favorable than the statutorily required potential sentencing outcomes if the defendant gets convicted, the defendant and his attorney are likely going to forego speedy trial rights to try to take as much advantage as possible of the plea bargaining process.

Good thoughts. Point 2 is the stand-alone reason as to why folks should waive.

Point 1 I fully understand on felonies, but there are too many folks who can't make bail and end up doing more time than if they were found guilty on all charges when it comes to public intoxication, possession and other small misdemeanors.

Point 3 is ridiculous. Attorneys make appearances for others all the time. There are a bunch of TTT JDs begging for work. Press them into service.

Point 4 feels unethical. Waiving your Constitutional rights is OK for a cell phone contract, but it'd be nice if there was a slightly higher standard of professionalism.

I'd also like to point out that motion practice is where a ton of money is spent and hours are billed. Pre-trial motions limitations reduce fees.

Link to post
Share on other sites

Speedy trial rights are waived a ton. And there are several reasons for that, some of them obvious:

1. It takes quite a bit of time to properly work a case and prep a trial. You likely need to get an investigator, interview witnesses, gather and prepare evidence, and litigate out a myriad of pre-trial issues (e.g. whether the Defendant's statement can be used against him, whether some evidence needs to be throw out because of an illegal search, whether the Defendant's priors can be used against him, etc.). All this stuff needs to get done. So, in cases where a defendant may be look at a long prison sentence and is getting credit for the time he's sitting in the county jail awaiting trial, it's worth spending a few dozen or so more days in county if it means a better chance of not spending years in prison.

2. When a defendant is out of custody pending trial and therefore is more than happy to delay potential doom, sometimes it is very favorable to the defendant for the trial to be delayed. While ethical rules prevent the defense from intentionally delaying the trial, the longer the trial is pending the more likely a state's witness may move away or memories get shoddy. There's also the chance that the case could change from one prosecutor to another and a new prosecutor is a new opportunity for a better plea offer. So, it's often good defense strategy to not push a trial date being set or doing anything to make the prosecutor start to get antsy to try the case. Note: the downside to this is that this does provide the defendant more time and opportunity to get new charges.

3. If a defendant is in custody for a long time pending a trial, oftentimes that is because the defendant has blown through several different attorneys. It is unfortunately not horribly uncommon for a defendant to be rather choosy about his attorney -- whether court appointed or retained. Generally, the court will look to appease a defendant as much as possible (especially if the defense attorney is indicating that the attorney-client relationship is strained or combative) but getting a new attorney means the new attorney needs time to get caught up on the case. So usually a defendant will have to agree to delay his trial in order to get a new attorney.

4. You won't like this reason as it paints plea bargaining in a bad light, but there are many prosecutors who have a "if you set for trial or file any substantive motions (e.g. motion to suppress, or even a demand for speedy trial) then all plea negotiations are off" policy. If that's the case, defending the case may take a lot longer since the process gets broken into two informal phases: 1) spend a few months trying to negotiate the best deal possible; 2) if and when that doesn't work, only then can you begin the trial prep process as I described above. Accordingly, since generally there are going to be plea options that are far more favorable than the statutorily required potential sentencing outcomes if the defendant gets convicted, the defendant and his attorney are likely going to forego speedy trial rights to try to take as much advantage as possible of the plea bargaining process.

Good thoughts. Point 2 is the stand-alone reason as to why folks should waive.

Point 1 I fully understand on felonies, but there are too many folks who can't make bail and end up doing more time than if they were found guilty on all charges when it comes to public intoxication, possession and other small misdemeanors.

Point 3 is ridiculous. Attorneys make appearances for others all the time. There are a bunch of TTT JDs begging for work. Press them into service.

Point 4 feels unethical. Waiving your Constitutional rights is OK for a cell phone contract, but it'd be nice if there was a slightly higher standard of professionalism.

I'd also like to point out that motion practice is where a ton of money is spent and hours are billed. Pre-trial motions limitations reduce fees.

Thanks, I think. But since I think all my points are valid, i'll respond to some of your comments.

1. I agree with you in theory and definitely agree that the arguable overuse of bail sometimes "forces" a defendant to accept a plea just so he can get out, but the issue we are discussing is whether a defendant should waive his speedy trial rights. Realistically you'd have to have a total dolt of an attorney if that attorney is waiving speedy trial when his client is sitting in custody on something small like a misdemeanor, and it's blatant malpractice to waive speedy trial and cause one's client to sit in longer than statutorily possible for a charge (e.g. six months on a class 1 misdemeanor in my jurisdiction). I have simply never seen this happen. As for the scenario where an in-custody defendant is demanding trial yet the attorney knows that sitting for trial will likely cause the client to sit in longer than he'd get if he just straight pled to the court (e.g. a defendant could sit in custody held on bond for 120 days before going to trial on a .08 DUI, yet just straight pleading would get him a likely maximum of ten days), I'm sure that 1) the attorney has advised him of such; and 2) would never push that trial out past the deadline for speedy trial. Again, this is a criticism of the bail system -- not the right to speedy trial and reasons why a defendant would waive that right.

3. I genuinely have no idea where you're coming from and certainly disagree that my point is ridiculous. In fact, your comment is so far out there that I'm figuring that I likely poorly phrased or explained my point. My point, hopefully made more succinctly, is that defendants will sometimes demand new attorneys of record on their cases. They will oftentimes do this pretty close to trial. So the court will grant a new attorney, but obviously that new attorney needs time to get caught up on the case. This situation is totally created by the defendants. This isn't an issue of attorneys not being "pressed into service". Also, obviously attorneys can cover non-substantative hearings for each other, but no attorney is going to cover a full blown trial for another (for a myriad of reasons) and the situation I'm talking about is when a defendant is essentially attorney shopping (or, is just do damn unrealistically demanding and difficult or is just trying to mess with the system).

4. I don't horribly disagree with you here. It does feel unethical and as a defense attorney I loathe having to explain to a client that I cannot file the potentially winning motion to suppress just yet because there's a reasonable plea offer out there and he's facing decades if we don't take it. But, there's just simply no constitutional right to a plea offer. So, at least in my jurisdiction, this prosecutorial practice passes ethical muster.

5. I frankly believe that not enough pre-trial motion practice is done in criminal court, but that's neither here nor there. Regardless, I cannot imagine how limiting the pre-trial motion practice of a defendant could ever be constitutional.

Edited by Zow
Link to post
Share on other sites

Well, nothing like having a multi-year client (with whom you developed a friendship to boot) insist on a course of action that is in defiance of your advice, leading to the client cutting off communication and forcing a motion to withdraw as counsel.

Ugh. Sickening.

  • Like 1
Link to post
Share on other sites

Well, nothing like having a multi-year client (with whom you developed a friendship to boot) insist on a course of action that is in defiance of your advice, leading to the client cutting off communication and forcing a motion to withdraw as counsel.

Ugh. Sickening.

Very sorry, GB.

Link to post
Share on other sites

Well, nothing like having a multi-year client (with whom you developed a friendship to boot) insist on a course of action that is in defiance of your advice, leading to the client cutting off communication and forcing a motion to withdraw as counsel.

Ugh. Sickening.

Very sorry, GB.

Aww. Thank you! That sincerely makes me feel much better. :hifive:

Link to post
Share on other sites

i am considering a move to a different firm. As I have never been in this position before, I was unclear on the ethics of taking clients.

Clearly if I brought the client to the firm, they can join me.

But my question is this, if there was a client that joined the firm before I got here, but with who I am the exclusive contact and have an excellent relationship, am i permitted to contact that client to inform them of the move? Is this unethical poaching? Also, when may this letter be sent?

Link to post
Share on other sites

Questions for anyone who does and trusts and estates work. Here's the scenario: a friend's parents wants to do their estate planning. They have two biological adult children, and they're in the process of completing the adoption of a 5-year-old niece. The parents want to split their assets something like 40-40-20, with the 20% going to the not-yet-adopted niece. They also want to put the 20% in a trust for the 5 year old.

For whatever reason, they've decided that they don't want to hire a lawyer; instead, they got a Suze Orman DIY estate-planning kit. I've convinced them to talk to a lawyer, but they're firm in their belief that they only want to go to a lawyer who will give the proposed documents a quick glance, because they don't want to pay for more than that. So, here are my two questions.

1. What are the odds that they'll be able to create their ideal estate plan by using a DIY kit? My thought was that this was a recipe for disaster, particularly because it's not a straightforward and even dispersal.

2. Would any lawyer be willing just to glance over a DIY document, or are they going to say that they need to write the whole thing from scratch?

Link to post
Share on other sites

i am considering a move to a different firm. As I have never been in this position before, I was unclear on the ethics of taking clients.

Clearly if I brought the client to the firm, they can join me.

But my question is this, if there was a client that joined the firm before I got here, but with who I am the exclusive contact and have an excellent relationship, am i permitted to contact that client to inform them of the move? Is this unethical poaching? Also, when may this letter be sent?

You're not just permitted to tell them, you're required to tell them if you have anything currently going on with that client. You have an ethical obligation to give them the opportunity to decide what they want to do. They aren't "your" clients or "the firm's" clients. You or your firm are "their" attorney(s).

Even if you don't have an active matter, if you have significant personal contact with those clients (and it sounds like you do) you should inform the client of the move.

Ideally, a joint letter should be issued by the firm and by you that explains that you are leaving the firm and will continue to handle the same sorts of cases at this other firm. If the firm won't do that with you, each of you should send a separate letter.

Key points:

1) Never say anything bad about one another in these letters;

2) Never solicit their business in the letter.

Tell them you are leaving to join firm B, and that you will continue to practice in the areas you have been practicing. Tell them you have enjoyed your time representing them. Give them your new contact information and let them know you are available to speak about the move if they have any questions.

  • Like 1
Link to post
Share on other sites

Questions for anyone who does and trusts and estates work. Here's the scenario: a friend's parents wants to do their estate planning. They have two biological adult children, and they're in the process of completing the adoption of a 5-year-old niece. The parents want to split their assets something like 40-40-20, with the 20% going to the not-yet-adopted niece. They also want to put the 20% in a trust for the 5 year old.

For whatever reason, they've decided that they don't want to hire a lawyer; instead, they got a Suze Orman DIY estate-planning kit. I've convinced them to talk to a lawyer, but they're firm in their belief that they only want to go to a lawyer who will give the proposed documents a quick glance, because they don't want to pay for more than that. So, here are my two questions.

1. What are the odds that they'll be able to create their ideal estate plan by using a DIY kit? My thought was that this was a recipe for disaster, particularly because it's not a straightforward and even dispersal.

2. Would any lawyer be willing just to glance over a DIY document, or are they going to say that they need to write the whole thing from scratch?

Any lawyer who is well versed in trusts and estates work has his/her own forms. Those forms exist because that lawyer has spent years working out the kinks and making them as close to perfect as possible.

If you pay for an hour of a lawyer's time to look over documents, you get the kind of lawyer who only cares about those documents for an hour.

Link to post
Share on other sites

So I won a trial at the end of May. The other party refuses to comply with the judgment. So I file a motion seeking to hold him in contempt. He files a notice of appeal. I remind his attorney that a notice of appeal does not stay enforcement of the judgment. So he files a motion to stay pending appeal. Attached is a five page, thirty five paragraph affidavit from his client listing a multitude of reasons the court should have ruled in his favor. None of which he raised at the trial. It references multiple documents. None of the documents were produced during discovery or introduced at trial. It references statements made by several parties supporting his position. None of the people were disclosed during discovery or put on the stand at trial. And no affidavits from those people were attached to his motion. I'm going to bury this guy and his attorney. :lmao:

  • Like 2
Link to post
Share on other sites

So I won a trial at the end of May. The other party refuses to comply with the judgment. So I file a motion seeking to hold him in contempt. He files a notice of appeal. I remind his attorney that a notice of appeal does not stay enforcement of the judgment. So he files a motion to stay pending appeal. Attached is a five page, thirty five paragraph affidavit from his client listing a multitude of reasons the court should have ruled in his favor. None of which he raised at the trial. It references multiple documents. None of the documents were produced during discovery or introduced at trial. It references statements made by several parties supporting his position. None of the people were disclosed during discovery or put on the stand at trial. And no affidavits from those people were attached to his motion. I'm going to bury this guy and his attorney. :lmao:

Rule 11 or Illinois-equivalent motion, mayhap?

Link to post
Share on other sites

So I won a trial at the end of May. The other party refuses to comply with the judgment. So I file a motion seeking to hold him in contempt. He files a notice of appeal. I remind his attorney that a notice of appeal does not stay enforcement of the judgment. So he files a motion to stay pending appeal. Attached is a five page, thirty five paragraph affidavit from his client listing a multitude of reasons the court should have ruled in his favor. None of which he raised at the trial. It references multiple documents. None of the documents were produced during discovery or introduced at trial. It references statements made by several parties supporting his position. None of the people were disclosed during discovery or put on the stand at trial. And no affidavits from those people were attached to his motion. I'm going to bury this guy and his attorney. :lmao:

Rule 11 or Illinois-equivalent motion, mayhap?

Rule 137 in Illinois. It will be combined with my response.

Link to post
Share on other sites

Questions for anyone who does and trusts and estates work. Here's the scenario: a friend's parents wants to do their estate planning. They have two biological adult children, and they're in the process of completing the adoption of a 5-year-old niece. The parents want to split their assets something like 40-40-20, with the 20% going to the not-yet-adopted niece. They also want to put the 20% in a trust for the 5 year old.

For whatever reason, they've decided that they don't want to hire a lawyer; instead, they got a Suze Orman DIY estate-planning kit. I've convinced them to talk to a lawyer, but they're firm in their belief that they only want to go to a lawyer who will give the proposed documents a quick glance, because they don't want to pay for more than that. So, here are my two questions.

1. What are the odds that they'll be able to create their ideal estate plan by using a DIY kit? My thought was that this was a recipe for disaster, particularly because it's not a straightforward and even dispersal.

2. Would any lawyer be willing just to glance over a DIY document, or are they going to say that they need to write the whole thing from scratch?

1. This is a recipe for disaster. Trusts are complicated and state specific nuances are important.

I've litigated numerous estate problems. It's rare when the problem arises from am attorney prepared will and plan.

2. I would kick them out of my office. There 8 no chance I review a kit estate plan and sign off on it. I might as well give them the contact number to my malpractice carrier as they leave.

People who have detailed estate plans and ideas that try to save money on kits and online forms are idiots. And the attorneys that overcharge for estate documents are scum. But there is a comfortable middle. They need to call around. Maybe even see if the local community college does estate planing classes for seniors and go and listen to one and meet the attorney that hosts it.

Link to post
Share on other sites

i am considering a move to a different firm. As I have never been in this position before, I was unclear on the ethics of taking clients.

Clearly if I brought the client to the firm, they can join me.

But my question is this, if there was a client that joined the firm before I got here, but with who I am the exclusive contact and have an excellent relationship, am i permitted to contact that client to inform them of the move? Is this unethical poaching? Also, when may this letter be sent?

You have an ethical obligation to tell the clients you are leaving. Check your canons and use Google scholar. There is a checklist of things you need to do.
Link to post
Share on other sites

i am considering a move to a different firm. As I have never been in this position before, I was unclear on the ethics of taking clients.

Clearly if I brought the client to the firm, they can join me.

But my question is this, if there was a client that joined the firm before I got here, but with who I am the exclusive contact and have an excellent relationship, am i permitted to contact that client to inform them of the move? Is this unethical poaching? Also, when may this letter be sent?

You're not just permitted to tell them, you're required to tell them if you have anything currently going on with that client. You have an ethical obligation to give them the opportunity to decide what they want to do. They aren't "your" clients or "the firm's" clients. You or your firm are "their" attorney(s).

Even if you don't have an active matter, if you have significant personal contact with those clients (and it sounds like you do) you should inform the client of the move.

Ideally, a joint letter should be issued by the firm and by you that explains that you are leaving the firm and will continue to handle the same sorts of cases at this other firm. If the firm won't do that with you, each of you should send a separate letter.

Key points:

1) Never say anything bad about one another in these letters;

2) Never solicit their business in the letter.

Tell them you are leaving to join firm B, and that you will continue to practice in the areas you have been practicing. Tell them you have enjoyed your time representing them. Give them your new contact information and let them know you are available to speak about the move if they have any questions.

Exactly.
Link to post
Share on other sites

A lot of these type of articles are usually crap. But this one hits the nail on the head:

11 Reasons Why It’s So Hard Being A Lawyer (Part I)

As I travel across the U.S., connecting with lawyers to talk about self-care, wellness, and mindfulness, lawyers often tell me how difficult it is to be a lawyer. I asked them to share what they wished non-lawyers understood about us lawyers, as well as what it is about being a lawyer that’s so difficult. Here are the 11 most common responses.

1. We’re Your Lawyer. Not Your BFF.

Sometimes, clients don’t understand the role we must play as a lawyer, which often involves telling the client he or she is totally wrong or what the client wants isn’t possible. Clients who don’t get the answer they want will often think the attorney is acting against the client’s interest. Also, clients sometimes have wildly unrealistic expectations from their lawyers, for example, wanting the lawyer to hate the ex-spouse as much as the client does. Or thinking that the attorney’s colluding with the prosecutor when the clients sees the attorney speaking with the prosecutor in any other tone aside from contempt.

“Giving an answer you do not like is not taking a position against you. It’s like the difference of being a parent versus a friend.” ~Paul Kavanaugh

“An act of stupidity on your part does not constitute an emergency on my part.” ~Lora McCollom

2. There Are No “Simple” Answers.

Many lawyers complained about clients who just need a “quick answer” to their “simple question.” Then the potential client gets frustrated when the answer is inevitably “it depends.” Of course, we lawyers know that “there’s usually not ‘an’ answer. We’re not being argumentative or wishy washy when we won’t give a definitive ‘answer.'” ~Pamela Parker

3. Being The Bearer of Our Clients’ Secrets.

“The level of stress that accumulates from managing others’ stress and problems and not being at liberty to talk about it. It’s a low hum even when it’s not obvious that takes developing a tremendous level of detachment and conflict management skills.” ~Rebecca Prien Weatherby

4. You May Win, And Still Be Unhappy.

Several attorneys shared this sentiment that litigation is generally a lose-lose proposition. As attorney Kimberly Graham puts it, “There is no ‘winning.’ Litigation takes a negative toll on the people involved, regardless of outcome.”

“We want to win just as much as you do.” ~Emilie Fairbanks

“We often want to win even more than the client. We see the bigger picture, law, precedent, our reputation, plus all of the work that we put into their case. I think I’ve cared about most of my cases far more than my clients cared about their own case.” ~Michael Halbfish

“Going to trial and/or having your day in court is not as wonderful as the client imagines. First, it is shockingly expensive to prepare for trial, and preparation is required. Clients do not understand the long hours and work in preparation for pleadings, briefs, mediation, hearings, trials. Secondly, that day in court is rarely as invigorating and cleansing as they expect. Usually it is painful, exhausting, hurtful, and ugly. And afterwards, you feel dirty, regardless of the outcome.” ~Tc Langford

5. We Can’t Guarantee Results. And Each Case is Different.

“We can’t deliver outcomes on demand.” ~Glenn Meier

We’ve all had clients that say they want the result that so-and-so got.

“Just because your friend got one result does not mean that you will get the same result. The little facts actually do make a difference.” ~Mitchell Goldstein

6. Being a Lawyer Is Dangerous to a Lawyer’s Personal Life.

It’s hard to be a lawyer and not constantly walk around with the lawyer brain and mindset. (Law school has ruined any hopes of having a normally functioning brain.)

“We think differently and are always issue spotting, even in our personal lives.” ~Sarah Poriss

“Lawyers are the one profession in which pessimists outperform optimists.” ~Ross Guberman

“The hardest thing for me about being a lawyer is the nagging voice that is constantly telling me that around every corner lurks a bar complaint or a malpractice claim. I’m not suggesting we can be loosey-goosey with the law, client files, trust records, etc., but still. Having to be perfect, or at least thinking you can’t make a mistake OR ELSE, is a crappy way to make a living.” ~Barry Kaufman

http://abovethelaw.com/2015/06/11-reasons-why-its-so-hard-being-a-lawyer-part-i/

Link to post
Share on other sites

I've been searching for an area of law where:

1. I feel comfortable that I understand what is/was expected of the usual defendants;

2. I feel like I would make a substantial difference to people who need it and have trouble getting adequate representation unless I enter the market; and

3. I can make gobs and gobs of money.

I have apparently found such an area. And I've just had an attorney attempt to refer me roughly a dozen cases in that area. The area requires:

1. Virtually no costs up front (other than filing fees and deposition costs) - no experts or other such issues are inherent in the practice area;

2. Getting admitted in another state.

I would be building a practice in a state I don't live in, and basically carpetbagging in to take huge numbers of potentially very lucrative cases, because lawyers in that state simply won't take these cases. I took one as a test case and absolutely demolished the defense, to the tune of a large settlement this year. And the clients are an adult and a child. The adult is very happy with the outcome. The child literally thinks I'm Daredevil because I'm a lawyer and, as he puts it, his "superhero." I've never felt so good about myself as when dealing with settlement stuff in this case. But the cases are horrific in their details. And I'd have to practice in Mississippi a lot.

Link to post
Share on other sites

I've been searching for an area of law where:

1. I feel comfortable that I understand what is/was expected of the usual defendants;

2. I feel like I would make a substantial difference to people who need it and have trouble getting adequate representation unless I enter the market; and

3. I can make gobs and gobs of money.

I have apparently found such an area. And I've just had an attorney attempt to refer me roughly a dozen cases in that area. The area requires:

1. Virtually no costs up front (other than filing fees and deposition costs) - no experts or other such issues are inherent in the practice area;

2. Getting admitted in another state.

I would be building a practice in a state I don't live in, and basically carpetbagging in to take huge numbers of potentially very lucrative cases, because lawyers in that state simply won't take these cases. I took one as a test case and absolutely demolished the defense, to the tune of a large settlement this year. And the clients are an adult and a child. The adult is very happy with the outcome. The child literally thinks I'm Daredevil because I'm a lawyer and, as he puts it, his "superhero." I've never felt so good about myself as when dealing with settlement stuff in this case. But the cases are horrific in their details. And I'd have to practice in Mississippi a lot.

Is this something specific to Mississippi or can I do this in Illinois? If so, DETAILS!

Link to post
Share on other sites

I've been searching for an area of law where:

1. I feel comfortable that I understand what is/was expected of the usual defendants;

2. I feel like I would make a substantial difference to people who need it and have trouble getting adequate representation unless I enter the market; and

3. I can make gobs and gobs of money.

I have apparently found such an area. And I've just had an attorney attempt to refer me roughly a dozen cases in that area. The area requires:

1. Virtually no costs up front (other than filing fees and deposition costs) - no experts or other such issues are inherent in the practice area;

2. Getting admitted in another state.

I would be building a practice in a state I don't live in, and basically carpetbagging in to take huge numbers of potentially very lucrative cases, because lawyers in that state simply won't take these cases. I took one as a test case and absolutely demolished the defense, to the tune of a large settlement this year. And the clients are an adult and a child. The adult is very happy with the outcome. The child literally thinks I'm Daredevil because I'm a lawyer and, as he puts it, his "superhero." I've never felt so good about myself as when dealing with settlement stuff in this case. But the cases are horrific in their details. And I'd have to practice in Mississippi a lot.

Is this something specific to Mississippi or can I do this in Illinois? If so, DETAILS!

It involves a state agency in Mississippi that has been violating hundreds (perhaps thousands) of people's constitutional rights every year for decades, often leading to serious physical injury and sometimes even death.

Link to post
Share on other sites

I've been searching for an area of law where:

1. I feel comfortable that I understand what is/was expected of the usual defendants;

2. I feel like I would make a substantial difference to people who need it and have trouble getting adequate representation unless I enter the market; and

3. I can make gobs and gobs of money.

I have apparently found such an area. And I've just had an attorney attempt to refer me roughly a dozen cases in that area. The area requires:

1. Virtually no costs up front (other than filing fees and deposition costs) - no experts or other such issues are inherent in the practice area;

2. Getting admitted in another state.

I would be building a practice in a state I don't live in, and basically carpetbagging in to take huge numbers of potentially very lucrative cases, because lawyers in that state simply won't take these cases. I took one as a test case and absolutely demolished the defense, to the tune of a large settlement this year. And the clients are an adult and a child. The adult is very happy with the outcome. The child literally thinks I'm Daredevil because I'm a lawyer and, as he puts it, his "superhero." I've never felt so good about myself as when dealing with settlement stuff in this case. But the cases are horrific in their details. And I'd have to practice in Mississippi a lot.

Is this something specific to Mississippi or can I do this in Illinois? If so, DETAILS!

It involves a state agency in Mississippi that has been violating hundreds (perhaps thousands) of people's constitutional rights every year for decades, often leading to serious physical injury and sometimes even death.

Mississippi Burning!

Link to post
Share on other sites

But it sounds like you're thinking this is a good idea. Despite having to practice in a state I will never live in.

I'd love to discover that some state agency in Indiana or Wisconsin is doing the same thing. Well, I don't want people hurt. But if they were I'd gladly jump in if the local lawyers were looking the other way.

Edited by Christo
Link to post
Share on other sites

But it sounds like you're thinking this is a good idea. Despite having to practice in a state I will never live in.

I'd love to discover that some state agency in Indiana or Wisconsin is doing the same thing. Well, I don't want people hurt. But if they were I'd gladly jump in if the local lawyers were looking the other way.
That's exactly what's happening. Over a decade ago, this agency entered into a consent judgment to fix these problems. Let's say they are non- compliant.
Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Restore formatting

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Recently Browsing   0 members

    No registered users viewing this page.


×
×
  • Create New...