An Engineer in Hell

An engineer died and reported to Hell.   Soon, the engineer got dissatisfied with the level of comfort in Hell, and started designing and building improvements.    Shortly, Hell's air conditioning was working, toilets were flushing and their tails weren't catching on the escalator anymore, and everyone was enjoying the pool the engineer designed and built.    He even mixed elements of hydrogen and oxygen to create water for the pool and a way to keep the high temps and fire in Hell from evaporating the pool's water.   One day God called Satan on the phone and asked how it was going down there in Hell.   Satan replied, "Hey, things are going great. We've got air conditioning, flushing toilets, a pool and all. There's no telling what this engineer is going to come up with next."   God replied, "What? You've got an engineer? That's a mistake -- he should never have been sent down there to begin with... send him back up here!"   Satan said, "No way. I like having an engineer on the staff, and I'm keeping him."   God said, "Send him back up here or I'll sue."   Satan laughed uproariously, slapping his knees in uncontrollable mirth and answered, "Yeah, right...  And just where are you going to get a lawyer?"

Excellent Advice About Legal Malpractice

It is hard to find advice for non-attorneys to consider about filing a legal malpractice case against their attorney.  This article by a Michigan attorney is a good place to start no matter what state you live in.

Limiting Competition in the Business of Law

Imagine if we had kept the same kind of guild for managing the airlines as we have in the business of Law today? We would still have expensive meals, assigned seating, few baggage charges but the fares would be two to three times as high.

Why not open up the law industry like we have the airline industry? Today this business is controlled and regulated by itself. Its stated mission is to protect the public but in reality its actions consistently reduce competition, protect attorneys and carry on the status quo. The American Bar Association (ABA) acts like a guild to restrict competition, limit the number of new attorneys, and make it very expensive for new entrants to upset the apple cart.

It probably doesn’t matter to you (directly) if some faceless corporation is paying $500 and hour for advice on a securities filing. But how about when you need assistance on a contract dispute that involves $25,000? How much “help” can you afford on a smaller dispute?

The American Bar Association approves law schools, manages the process of disciplining attorneys via State bars, and controls who can practice law via its administration of state licensing.

Here is what the legal industry does not do: 1) make it easy for an alternative approach to preparing future lawyers; 2) insist that attorneys tell their clients how much legal malpractice insurance they carry (in most states); 3) insist that attorneys tell their clients how many times they have been sanctioned or sued for legal malpractice; 4) make the complaint process against attorneys fast, transparent and fair; 4) use non-attorneys in the regulation of the legal industry (in any meaningful way); 5) demonstrate any correlation between passing the bar exam with providing excellent legal service.

There is a small glimmer of hope in a few minor areas of the law: 1) advertising is now allowed (albeit with some major restrictions); 2) in a few states individuals can take the bar exam without graduating from an ABA accredited law school; 3) foreign law firms (primarily from India) are competing with some of the research functions that were historically provided by big US law firms; 4) Legal Zoom and other online services provide legal forms that assist Americans with standard wills and contracts that were historically generated by attorneys at a much higher price; 5) internet services like elance.com allow clients to seek out legal and paralegal assistance from all over the world to do their own legal research rather than having to pay several times as much to a large US law firm.

This piece in the New York Times speaks to the obstacles to reducing the cost of law school.

The ABA requires a minimum percentage of full-time professors, strongly suggests tenure programs, and requires law schools to maintain expensive law libraries. And then they manage the accreditation process and have convinced the US government to only allow veterans to use their college benefits to pay for ABA accredited law schools.

It is time for far more competition in the business of law.

Before you hire an attorney

You should check with the state bar to review the record of your prospective attorney. Most of the time this is an online search (for example in California one would go to their web site ). At a minimum you will be able to confirm that they are licensed to practice in your state, when they were admitted to the state bar and what law school they attended.

More importantly, in many states the online material will show you if there has been disciplinary action against the attorney. I recently checked out a California attorney that has been practicing since the late 1980's but had been disciplined for not filing the proper papers with the court for a conservatorship. She had been paid in advance, and the clients had to hire another attorney to complete the work. Does this sound like the kind of attorney you want working for you?

An article about hiring a tax relief attorney

An article about hiring a tax relief attorney.

"If you need help with your tax debt, it is recommended for you to call a tax relief attorney." The article suggests considering hiring an attorney that is also a CPA (fairly rare). And I personally would start with my CPA in this situation. Depends on the cost of the attorney versus the CPA and are you only talking about fighting additional levies or do you have a criminal risk. In the later case I would definitely talk to an attorney, if we are only talking about money my personal preference is the CPA route.

Some good advice from an attorney on DWI cases

One important thing to know from the start is to always cooperate with the arresting officer who pulls your car over. If you are compliant and respectful it will set you in a much more positive light when your case is presented to a judge. Being belligerent and causing the office difficulty during the arrest process will likely work against you in court

Lawyer burns cigars!

BEST LAWYER STORY OF THE YEAR

This took place in Charlotte, North Carolina . A lawyer purchased a box of very rare and expensive cigars, then insured them against, among other things, fire.

Within a month, having smoked his entire stockpile of these great cigars, the lawyer filed a claim against the insurance company.

In his claim, the lawyer stated the cigars were lost 'in a series of small fires.' The insurance company refused to pay, citing the obvious reason, that the man had consumed the cigars in the normal fashion.

The lawyer sued - and WON!

Delivering the ruling, the judge agreed with the insurance company that the claim was frivolous. The judge stated nevertheless, that the lawyer held a policy from the company, in which it had warranted that the cigars were insurable and also guaranteed that it would insure them against fire, without defining what is considered to be unacceptable 'fire' and was obligated to pay the claim.

Rather than endure lengthy and costly appeal process, the insurance company accepted the ruling and paid $15,000 to the lawyer for his loss of the cigars that perished in the 'fires'.

NOW FOR THE BEST PART...

After the lawyer cashed the check, the insurance company had him arrested on 24 counts of ARSON!!! With his own insurance claim and testimony from the previous case being used against him, the lawyer was convicted of intentionally burning his insured property and was sentenced to 24 months in jail and a $24,000 fine.

This story won First Place in last year's Criminal Lawyers Award contest.

(unfortunately according Snopes.com the story is false)

Should you hire an attorney pursue a lawsuit?

If you are considering a lawsuit as a plaintiff (you want to be paid for damages from the defendant), you need to consider carefully if it is worthwhile.

If you are hoping to hire an attorney on contingency where your attorney only gets paid if you prevail (see earlier post) then the attorney will do much of the due diligence to determine if your case is worth his time.

But if you are paying by the hour, you are much less likely to hear from your attorney (early on) that you are wasting your money.

Beyond considering if you have been wronged and if you have a case, the most important factor to consider is will you ever collect. If the defendant is about to declare bankruptcy, you will likely collect nothing but frustration. If the defendant is a small company, what prevents the defendant from simply folding up shop? For individuals and small companies it is very tough to determine what the wrongdoers assets and liabilies are. The fact that they drive a nice car and live in a nice home means nothing these days. The car may be leased and the house is likely underwater relative to the mortgage. At least on the defendant's real property you can go down to the county recorder's office and see what liens are already filed against the property.

So first and foremost start with an analysis of the ability to pay a judgment by someone you are considering suing.

Run for the hills from dishonest attorneys!

If your attorney asks you to do something dishonest or unethical run for the hills. If they lie to others they will lie to you. If you find them in a small lie to you, this is likely the tip of the iceberg.

The situation is not as bad as the joke: “99% of attorneys give the other 1% a bad name.” But I have been lied to and cheated by enough attorneys to know that this is not a rare occurrence either.

If you have proof of attorney dishonesty you can usually report it to the State Bar. But this is a slow process, run by other attorneys and will do nothing to recover your damages.

So if you ever see a sign that your attorney is not 100% honest and ethical then find another one to represent you – immediately.

Legal Malpractice

If your attorney was negligent in representing you, you might have a chance to recover damages via a legal malpractice lawsuit. But this is a long putt for a number of reasons. First of all of the laws are written by attorneys. In some states the statute of limitations is as short as six months where you might have two years to sue virtually anyone else. So if your attorney has lost your case then get started immediately on meeting with other attorneys to see if you have a malpractice case and how much time you have to file a lawsuit.

The second problem with these cases is that you really have to prove two cases. You must prove that the attorney was negligent and you must also prove that you would have won in the underlying case. If you were the plaintiff in the first case you must show that you would have won and collected had your attorney not made fundamental mistakes. If you were the defendant in an action you must demonstrate that you would have prevailed except for your attorney’s errors.

In terms of proving negligence by your attorney you can’t simply show that the attorney’s strategy was imperfect, you must demonstrate that he took actions or failed to take actions that no “reasonable” attorney would have done. A common type of malpractice is failing to respond to a motion on time where the consequences were that the case was lost by default.

The next problem is finding the right attorney to represent you. In large cities like Los Angeles or New York this is not a problem. In large cities there are attorneys that specialize in legal malpractice. But in smaller communities it can be quite difficult to find an attorney willing to sue one of his “colleagues” in the legal profession. Plus the few number of malpractice lawsuits in these smaller communities makes it impractical for an attorney to specialize in legal malpractice.

Many engagement letters call for disputes to be resolved between the client and his attorney via binding arbitration. Sounds efficient doesn’t it? The problem is that the judge and jury in binding arbitration are - you guessed it other attorneys. So whenever possible try to have this provision removed before you sign it. If you are suing your attorney for legal malpractice you want the case to be heard before a jury of your peers not a jury of the defendant’s peers.

In selecting an attorney to represent you in your legal malpractice case a critical part of the discussion needs to be the venue where you will file the lawsuit. If it is a small town you want to get away from the judges with which this attorney works every day (unless he is despised by the local legal community). In some cases you can file in Federal court or at least another county so that you will not be fighting against the “home court advantage”.

Finally when you selected this negligent attorney in the first place, did you consider if he is wealthy or has “errors and omissions” insurance. Many single proprietor attorneys do not have this kind of insurance to pay off in the event of their negligence. So if the defendant lawyer is both poor and without insurance then even after winning a legal malpractice lawsuit, there is nothing from which to collect.

So back to basics. Take your time selecting an attorney in the first place. If they handle your case poorly it is tough to get compensated for your losses.

Does your attorney consider both state and federal district court?

“If your only tool is a hammer then you view every problem as a nail.” For those attorneys that are only experienced in state court they are not very likely to consider filing in federal court.

Far more attorneys practice law in state courts rather than in federal court. However, those that practice in federal district courts are almost always admitted to a state bar.

But all things being equal on a civil action where I am the plaintiff, I would prefer an attorney that works and has practiced in both arenas. If your attorney is not admitted to practice in federal court he will always file in state court. I would prefer an attorney that has tried cases numerous times in both state and federal court and can make an experienced assessment to determine if you are better served by filing your lawsuit in federal district court or state court (it varies by the case).

But if you don’t investigate this critical question, it is unlikely your prospective attorney will bring the subject up.

Attorneys increase billable hours at their dictionary

I read plenty of legal briefs, motions and complaints as part of my business of investing in lawsuits. And I am always struck with the language. Not only are many lawyers paid by the hour but I suspect they sometimes increase their billings with time at the dictionary replacing commonly understood words with the indecipherable.

I just read a motion that used the word “inapposite” rather than “not pertinent”. Why? Do attorneys think their average client understands the rarely used word (or anyone else for that matter)?

Powerful and effective language is using words and phrases that are both uncommon but broadly understood. Words that are used too frequently can annoy the reader and words that are not broadly understood are not very effective in communicating a message.

Should there be a single payer legal system?

http://online.wsj.com/article/SB10001424052970204731804574387021307651050.html?mod=wsj_share_facebook

Great op-ed piece in the WSJ about the concept of the Federal government taking over the legal industry. Great fun!

Defense Attorneys Milking Cases

Defense attorneys are milking cases for all they are worth today. Two litigation attorneys I spoke with this week said they have never seen it so bad.

During “good times” defense attorneys that are paid by the hour usually milk a case for a minimum amount before settling. But as these law firms are getting less work than normal they are tending to make up the difference by spending more time per case. The net result is that it takes longer to settle a case than a few years ago.

If your attorney drops you

If your attorney has taken your case on contingency and subsequently doesn't like the odds of winning he will drop you as a client. Now there is a process they must go through including notifying you, making a motion to the court to withdraw as counsel and then receiving the approval of the court for withdrawal.

Before this motion has been approved they still have a duty to represent you but their heart is not really in it. So if they are bailing on you, you need to move into overdrive to get a new attorney. This will be twice has hard as getting an attorney the first time because the second group of attorneys will think one or more of the following situations exists:
1) you do not have much of a case
2) you are a difficult client to work with
3) the prior attorneys have messed up the case already
4) even if they win and collect a judgment they may have to share some of their fees with the prior attorneys.

I have worked with folks that try to resist their prior attorneys dropping them. And you need to understand why the case is being dropped and can the case and the relationship be salvaged but you also need to move into action to find a new one.

Don't fire until you hire

In general do not fire your old attorney until you have engaged a new one. You will have far more leverage in negotiating with the new one if you are not in between lawyers.

But have a good reason to explain yourself to the new attorney. Be specific in how the old attorney let you down and get assurances that the new one won't act the same way. For example a common reason for firing the old attorney is that the old one keeps delaying in actually filing the lawsuit.

Once you have reached agreement with the new one then he can assist you in notifying the prior attorney that his services are no longer needed and to notify the parties of your new representation.

Hiring a bankruptcy attorney

This article has a few ideas about hiring a bankruptcy attorney. Keep in mind that many bankruptcy attorneys will give you an initial consultation for free. To make the most out of this time get your data together. Collect your income information, your minimum monthly expenses other than for credit repayment and information about your dependents.

A key issue will be if you will be able to declare personal chapter 7 bankruptcy which will wipe out all of your debts (unless you decide to keep your mortgage) or chapter 13 bankruptcy where you pay off as much as the court determines is practical over a five year period and then the rest is wiped out. Generally only those with incomes less than the state average can declare chapter 7 bankruptcy.

Some of these attorneys will advise you which bills to pay and which to not pay - there goal seems to be to put enough money in your pocket up front so that you can pay them before they start working on your case.

What is a retainer

If you are paying your attorney by the hour your attorney will frequently ask for money up front - this is called a retainer. The details of this retainer should be spelled out in your engagement letter.

Sometimes this is equivalent to the last months rent and none of this money is used to pay your monthly legal bills. In this case you need enough cash for this retainer along with enough to fund your monthly payments if you are going to make it without running out of cash.

In other cases the attorney will use your retainer to pay his monthly bills until the case reaches a certain level or he thinks there is enough money at the end of the case to satisfy his bill.

You need to understand what your attorney is expecting on this front and do not be afraid to negotiate this item if you are short on cash.

Preperation for hiring an Attorney

Whether you are hiring an attorney that you are paying for by the hour or trying to find the right one on contingency get your ducks in order before you talk to them. Prepare a summary of your case and the documents that prove your case.

First, this allows you to learn more in your initial interview. These preliminary meetings are usually free but just because they are free doesn't mean you can't learn at them.

The attorney that you are interviewing is also interviewing you. If they are considering taking the case on contingency then they would rather have an easier case than a more difficult one. They would prefer one that will settle early rather than after several years. And they are trying to determine if you will be a good witness. Most important, the contingency attorney is going to try and ascertain if the defendant has deep enough pockets so that if you win you can actually collect.

Attorneys that only charge by the hour are far less concerned about if you can actually collect on the judgment. They mainly care about your ability to pay. So in these cases you need to dig into whether or not the defendant can pay a judgment if you are successful in court. Keep in mind that 90% of judgments go uncollected.

Firing your attorney!

Yes you can! If you have a bad attorney then he or she is not going to get any better - fire them now. You have the right to change.

But keep in mind that if you are a bad client or "difficult" client you may not get another one.

You are the manager and the attorney is your service provider. If he is not getting the job done or is not paying enough attention to your case it is unlikely to get any better.

Now keep in mind that many first-time plaintiffs think that the legal process is going to move far faster than it actually does. They also think they are going to receive millions when they might only get a few thousand. The speed varies from court to court and state to state but rarely do we see "speedy justice".

Do not assume that your attorney is going to meet her deadlines! They do forget about these things so you need to be paying attention. And if they are leaving motions and responses to the last minute they may simply not make it in time or do a poor job because of the deadline. You are screwed!! So you need to know the deadlines and the schedule and make sure your attorney is meeting the deadlines.

If you are a plaintiff and have a contingency contract you still have the right to change attorneys. Usually it is a good idea to find a new attorney before firing the old one. Generally (it varies by state) the old attorney will work out compensation with the new attorney for some compensation for his expenses on the case and the time he spent.

But again, you only get so many at bats. It is harder to hire a good attorney after you already have one. So try to do it right the first time. The second attorney is worried that the first attorney already messed up the case. Or the second attorney thinks that you may be an unreasonable client.

I had a client that actually fired two attorneys and then could never again find someone to represent him. He had to represent himself and it has not gone well ever since.