It’s “Moot”, not “Mute”

People come to see me it seems, just to use this word. Then they botch it. Once in my office they try to work the conversation around so they can say “moot”.

Most of the time when they get to that crescendo moment where they get to use the legal term they invariably say “mute”, like the button in the lower right corner of the television remote control.

Example:

tv remote

If the other side gives up then the whole thing is mute, right?

After which I am tempted to merely mouth words but offer no sound to illustrate the errata. But I merely nod and move on.

Errata. Now there is legal term I wished more lay people recognized.

Family Law Tip: Do Not Bring the Subject Matter to Court

This may sound fairly obvious but if you are litigating over children, the judge does not need to see them. They have a pretty good idea of what children look like, some of them are even parents. They will not be swayed by who is holding the subject matter.

babes in arms

I am just back from the family law motions calendar and found as many babes in arms as there were lawyers and litigants.

One boy was a bit older, and was waiting out in the hall with his aunt presumably. He had a toy gun, which he aimed and fired at everyone.
boy with assault touy
We have security, how did he get that thing into the courthouse? security at the courthouse

How Many Stars Would You Give the United States Constitution?

I recently bought a copy of the constitution on Amazon. My reward is an opportunity to review the document on their website. The question seems a bit obscene, given the gravity of the document, as it has asked me to rate it as if it were a motion picture. constitution

Our constitution embodies a foundational understanding of what it means to be an American. It sets forth a rule of law for us all to count on, no matter who may be in office or what should transpire.

The idea that the foundational laws of a country should be set forth in a single document was rather radical at the time it was adopted, 1788. The precedent Articles of Confederation (1781) failed to work out, and shortly it appeared the Constitution of the Commonwealth of Massachusetts authored by John Adams (1780) seemed to be the most workable frame for government; a bicameral legislature, an executive and an independent judiciary.John Adams

Britain, by contrast has a series of documents starting with the Magna Carta (1215), each of which reflects the prevailing concerns of the age.magna carta
We now see a great constitutional debate in our mother country, The United Kingdom, whose Prime Minister has proposed what appears to be more of a federation like our own. uk

This is feasible. The historical documents delineating the role of the monarch, Parliament and the judiciary remains a workable collection of documents and practices subject to change from time to time.

Our Constitution, by contrast, is treated as Holy Writ, authored by now God like men referred to commonly as “the Founding Fathers” making changing it a heresy. James Madison, the documents author, was an extraordinary man. But he was still just a man.

I am beginning to have my doubts the American Revolution was necessary or has really served us in the long term. I have yet to meet any Americans who agree with me. The British generally feel differently of course. washington crossing the deleware

The British seem to be able to get things done. Sure, it is a much smaller country, but troubles here seem to perpetuate due to the weight given to the terms of a document which certainly allows for amendment, but doesn’t seem to be all that flexible until a Supreme Court is willing to either overrule itself or find a new logic to come to a different result.

Take the 2nd Amendment for example. We seem powerless to address the twin and competing needs to curb gun violence while respecting American desire to own and carry firearms. Change is out of reach. george washington armed

This is our law. It is good thing for any American to read from time to time. One might ponder the number of comma’s in the 2nd Amendment, which might be read as error and tend to cut the Founding Fathers down to a humanity that may lead to America rising from it’s bended knee before this document and addressing the challenges we face today.
sandy hook

Susie Orman is Practicing Law Without A License : POSTSCRIPT

Susie Orman has a television show. She gives financial advice. Now she is giving legal advise, and she lacks a license to do so. She must be stopped.
Suze-Orman1
I have seen her on television telling everyone in America they want to avoid probate by putting everything they own and ever will own into a revocable living trust, so that when they die the assets just flow to the beneficiaries without probate.

This is good advice as I understand it, in California where she lives, but I will not say this as the State of California has not issued me a license to practice there. No similar license has been issued to Susie either, nor has she been to law school.
california state bar
Meanwhile she is telling my clients Your lawyer wont tell you this and goes on to talk about this trust. Right, I wont advise it because it is usually a mistake for people in Washington State, unless there is some really good reason to do so.

Meanwhile I have clients mad at me, thinking I am taking advantage of them. I don’t see how I could be so overreaching, when a will costing about a sixth to a tenth of a trust while the client is alive and the probate after the client has passed often less than the cost of the trust altogether.

Besides, I know some banks that just will not recognize the trust, and demand letters testamentary from the probate court in any case.

Susie Orman is practicing law without a license and must be stopped. But the California State Bar will not stop her, because, wait for it….

She Is Not A Lawyer

POSTSCRIPT : I had heard through legal channels will kits with Suze’s name on have begun to surface. I started typing her name into the Google search strip and got as far as half way through her last name when the bar auto completed “Suze Orman Will and Trust Kit”. suzeorman_kits_musthavedocuments

My apologies for not spelling her first name correctly earlier.

The website calls these the “Must Have Documents”. It ain’t necessarily so. Not everyone needs a trust.

Also some people have special needs that only a lawyer with some experience will see.

The price for the “Must Have Documents” is a promising $63 according to the website. This supposedly saves the average American $2500 according to Suze.

“It ain’t necessarily so
It ain’t necessarily so
De things dat yo’ liable to read in de Internet
It ain’t necessarily so”

Porgy and Bess with edits.

REPEAT: Suze Orman is practicing law without a license and must be stopped.

All Things Being Equal

I saw this bumper sticker in Seattle yesterday.

equality

I am a student of how far that love goes. I mean, should we put weights on the flamenco dancer so I can keep up with her? flamenco guitar and dancer

Or take hiring a lawyer for example. Do you really want him to be an equal? I seriously doubt this, but I have to say, there are multiple occasions where I have been asked to buy into my clients emotional state as the place from which decisions are taken, rather than remaining the objective advocate I think the client wants.

Sometimes I have a guy come in and tell me he “has a great case” and goes on to demonstrate with remarkable detail why we are not equals and the law school education and 30 years of experience really does mean something.

Note I do not say lawyers are better than their clients, but they rarely think like a lawyer and if they could they probably wouldn’t be in my office.

If I could write down how to think like a lawyer I would but here is the best I can do:

What a lawyer has to do is sort out the wheat from the chaff.
wheat thresher
I am not sure that would fit on a bumper sticker, and our task cannot be diluted into a catchy, likable sound byte but here are the facts:

When the client arrives with the plan for what the lawyer, like a chess piece, is to do it is the job of the lawyer to decide what to do, and disregard the directions from the less experienced client, as all things are not equal, unfortunately.

There is no Substitute for Experienced Advocacy

1. We Are Created Equal. Among the Jeffersonian myths that have survived is the idea that all men are created equal. Perhaps that is true, but after birth their experience differs widely. They may not be that educated gentleman farmer Thomas Jefferson saw us as becoming these generations later. In fact, most are not. Thomas Jefferson

In the last several years the bench and bar have had a buzz word gone into policy called “Access to Justice”. I like to call it “Access to Firearms” but it has nothing to do with the Second Amendment.

2. Access to Justice. The basic idea is that with some forms and instructions on where to file them and how to confirm a hearing anybody can achieve “access to justice” and state their case like Jefferson’s farmer. So the court system wrote some forms and gave instructions on where to file them.

Unfortunately, as it is often said, Thomas Jefferson was the last man who had a grasp of the entire body of knowledge as it existed at the time. What this means to the pro se litigant he cannot possibly grasp what he is getting himself into.

Well, yes, you can get yourself in front of a judge. You can get yourself behind the stick of an aircraft too after reading the instructions on the internet on how to fly, but it is not a good idea. airplane crash

3. The Results. Often this does work out. Some questions are fairly straight forward. Divorce might be simple, then it might not.

There are a lot of “what if’s”. A child support issue between two Boeing employees can be done pro se as well.They each get issued a W-2 every year from which one can calculate monthly income and feed that data into a child support software to produce a result. Done deal right?

What if one of them doesn’t work for Boeing? What if he is self employed? Things get complex. I can say for sure the pro se litigant will not be able to fashion the court order that will equitably divide the Boeing pension in a way the company will recognize and follow it.

4. Too Close to the Problem. The other thing a lawyer does for a litigant that he cannot do himself is achieve some degree of objectivity about his or her case. Is it really a good idea to rush into court guns blazing? Are you sure the judge is going see things the way you do? courtroom antics

Maybe you can have a lawyer look at what you’re doing and see if it is alright. But then what if you botch the hearing by saying something that erodes the presumption that everyone comes to court in good faith and a bona fide dispute that requires a consumption of that most precious of commodities, judicial time?

How often have I seen the pro se litigant in court with a ton of paper in front of him, obviously served on the other party and the bench earlier, with this idea that his pleadings represent some manifesto that will change the course of human events? courtroom drama

The reality is he comes off instead just as an unhappy man wasting everyone’s time and his relief is denied. There is no substitute for experienced advocacy. courtroom

5. The Outer Limits. I cannot write down here what I have learned from 30 years of practice. It is part of the secret knowledge of lawyers, but even if I had to “tell all” I couldn’t transpose into words for you Jeffersonian gentlemen farmers how to conduct your case. It is in part and art, and otherwise just the nature of experienced advocacy.

There is No Trap Door in Superior Court

There is no trap door in Superior Court. trap door

This is not vaudeville, “Laugh In” or some totalitarian state.
HitlerAccused 1944

When someone lies in court, the opponent has to be prepared to confront them with a prior inconsistent statement made under oath somewhere during cross examination. That is not the same as arguing with them.

argument
Don’t expect the Judge to somehow magically know when a person is lying. Clairvoyance is not a requirement to take on the robes.
clairvoyant

Every month it seems someone appears in my office with a document someone has signed under oath, or declaration swearing the contents to be the truth “on pain of perjury” and declaring they have lied!

Truth is hard to find. One mans black is another mans white.

Star trek black and white

My Dad used to say that the reason we lawyers have jobs is one guy cannot see the other guys point of view. And that is why there are no trap doors or sudden death in civil or criminal law.

Modern fact finding is an advanced, yet frustrating concept. It takes time, and eventually there is some result. Better this way than by popular sentiment, strong man leadership or mob rule. French sloganguitene

The Forgotten Child

Last willFor some reason I have a run of kids that seem to have been forgotten during the first will preparation interview of late.

The client comes in, even fills out the form about who their children are, then we have the meeting, discuss what is their desires, and a first draft is sent out US Mail as a hard copy.

Then something happens. Perhaps it is guilt. Perhaps they just remember that long ago in another state another child was born, but the fates separated them somehow. An excited call comes to the office to amend to include this flesh and blood so long ignored, often with stressful questions as to what trouble this means. Shakespeare missed a good plot, but I believe there was a child of this nature that undermined everything in the musical “Camelot”.

This happens so often there is actually legislation about children who are forgotten. They are called “pretermitted”. This forgotten child is due whatever percentage he or she would have received had the parent died without a will.

The most recent iteration of our statute has the pretermitted claim limited to children born after the will is signed. Still, there will be a fight in any case.

Death is a good time to remember children, particularly in a will. You may have cause to disinherit, but do so expressly, lest that Iago child of your youth return to spoil Othello’s estate.

Little Sheets of Paper

Tonight my Dad is in the rehabilitation center following knee surgery. From what I gather this is a little like giving birth; it is awful for mother and child but both are really happy a few weeks later.

Upon admission, transferring from the hospital and full of pain medications, a vast array of paper was placed in front of him requesting his signature. Some was about insurance, some about care, and some could end his life.

These little sheets of paper included a health care directive to physicians that gave the facility permission to end his life had he checked a box that said so. Four days after surgery and still in considerable pain, I question his competence to make a reasoned decision. The directive is green in color; green for “go”.

Because my mother was there she stopped the process until I could arrive. Upon my arrival the nurse explained again to my parents, and me, the purpose behind the health care directive was “so the doctor would not have to read through all the legalese of a more complex document” . That is literally what she said during her remarkably practiced speech for all incoming patients.

In other words the Doctor has no time to understand the intent of the patient about whether he lives or dies as expressed when contemplating these issues in a competent, sober manner while consulting with his lawyer who then drafted the same based on the law and his experience.

Just check the box on the little sheet of paper sir, it is better for all of us. That’s right, the green one. Green for “go”.

Licensed Legal Technician: Not Quite A Lawyer

Our state seems to be a testbed for the rest of the country for everything; gay marriage, legalized marajiuana and now legal advice with a stamp of approval that really ought to have a lot of warning labels.

What appears to be an effort to manage the free market of legal advice, not all of which is licensed, the Supreme Court of Washington has developed a rule to annoint persons who have not gone to law school with the approval to discharge limited legal tasks. This can be of great help to persons who cannot afford or do not need a full service firm. Or it can be a disaster because there are tripwires in the legal landscape no one but a lawyer with some experienc is going to know about.

The standards are tough however, so who knows- this might work out. The Bar has yet to accept any applications as they are still working out the operational details but first thing applicant must show is “good moral character”. I think that means you have no felonies as a start, but in my time on the Character and Fitness Board it meant generally a disregard for the Rule of Law.

Next there needs to be some education, either an associates degree in law or postgraduate work in legal studies.

Finally, and most appropriately, one has to work for a lawyer for at least two or three years so the applicant has some idea how this all really fits together.

Then the applicant sits for an exam, not quite the Bar Exam. Perhaps we should call it Bar Exam Lite.

This all sounds vigorous, and yet I cannot help but be worried about unintended consequences, like people relying on legal techs when they really need a legal engineer called a lawyer.