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.