Dont Go Changing

 

Don’t Go Changing..Billy Joel

Your will without me..

Don’t change your beneficiaries…

M’mmm..

I draft the clauses, I draft the sections, ..

I am the lawyer and your not…

I have started putting a bold stamp on first drafts of the wills and trusts I draft. I sometimes never hear from the client again after mailing out the first effort. I worry they start doing their own work after they see my start on their project.

draft

We have seen such events in our chambers. The mouth runs dry at the sight of such chaos in what once was another lawyers fine product.

Often folks arrive in my office not really knowing what they want to become of their estate when they are gone. One couple had a knock down drag out fight about who got what when they were both gone. I heard too much information about their children; who is “responsible” and who is not. I proposed sending out a draft for them to think about but the argument raged on for about an hour.

Finally they left, I sent what I thought was what they wanted and never heard from them again. Perhaps they are still struggling for control of what happens when they cross out of this plane of existence where the argument between them will finally end, leaving their children to continue the fight.

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.

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.

AVVO – The Computer Lawyer Rating System

I am presently rated 8.9 out of 10.0 on AVVO, a lawyer rating system.

I had been rated 9.1 out of 10.0, when a peer endorsement from a lawyer I had never heard of before in a far off state endorsed me. I deleted the endorsement because there is no way this man could know what to say about me.

And so I have a 8.9 rating. I am proud of it.

And I still wonder how the machine measure my experience, ethics and knowledge of the law.

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.

Need Not Be Present To Win

After the funeral a dozen people or so show up at the lawyers office, some times the same day, for the reading of the will. I think they get this idea this must happen from television and the movies. Television and the movies is where this unnecessary step belongs.
funeral procession
First, there generally is no reading of the will. Instead everyone with an interest in the estate gets a copy, but there are no elderly barristers with cherry lined law library waiting with fire blazing to read wills as funerals end.
read will

Second, you need not be present to win. When a person dies with a will leaving someone else property, the gift vests. Even if there is no will, by operation of law some heirs just plain take by doing nothing.

But there is always a catch, the vesting is subject to probate.
spendthrift
In other words, we have to pay the bills first.

Occasionally the lawyer will be hired to read the will but usually it is a huge disappointment for everyone involved. We don’t have a cherry wood lined conference room full of old books with fire blazing in the fireplace.
lawyers office
People fail to wear black or otherwise dress appropriately.
bad funeral wear

People do get upset, say things they might later regret, and otherwise misbehave. That part is like television and the movies. And that is why most lawyers refuse to read any wills to the family.

Title credits to Valetta King, Office Manager at Newton Kight LLP

War Crimes

Something that has always bothered me, as a lawyer, was the authority or law that allowed one nation or group of nations to charge war crimes against the combatants of another? I mean, where is it written down that it is a crime to mistreat your POW’s, or that civilians should not be killed? prisioner of war

It turns out in many places. The Geneva Convention Relative to the Treatment of Prisoners of War, adopted July 27th, 1927, for an example.

But enforcement depends on politics. Take the Japanese treatment of our POW’s during WWII for example. Horrible. Death marches, random executions, poor conditions, little food, little shelter. Those responsible were tried and convicted of several breaches of international law.

How did the Russians treat their captured Germans in the same war? Horrible. Death marches, random executions, poor conditions, little food, little shelter. Those responsible were NOT tried and convicted of several breaches of international law.

Why? Well perhaps it was the 24 million soldiers and citizens that died during the conflict that somehow shifted the moral weight in their favor. More probably it was because the Russians were on the winning side. war crimes

Curtis Lemay, commander of our strategic bomber air forces over Japan late in the war famously said that if America had lost the war he would be tried for war crimes. This is probable. curtis lemay

In 1907 a general protocol referred to as the Hague Convention of the Laws and Customs of War on Land was adopted. Among its provisions bombardment of civilian areas or undefended ports was prohibited by naval forces. Following World War I in an arbitration between Greece and Germany held in 1927, this provision was held to extend to aerial bombardment.

Ten years later the Germans elected to ignore international law for a town called Guernica Spain. guernica

By World War II the bombing of civilian targets was common. To end the war against Japan, we the Americans, dropped two atomic bombs on Hiroshima and Nagasaki, but not before we firebombed the other wooden cities for months, creating firestorms only occasionally seen in the European Theater. Curtis Lemay was the ground officer in charge of the mission.

There were no trials about bombardment of civilian populations following World War II. How could that hypocrisy be heard anywhere?

As a human I know right from wrong. It is wrong to round up a class of persons, say the Jews, and attempt to exterminate them. That is just murder and everyone knows that. You don’t have to go to law school to know this. The War Crimes Tribunals, where they may have lacked authority, asserted this as a crime against humanity, and they were right to do so. nuremberg 2

But there was actually a precedent placing everyone on notice the killing of civilians would be called a crime. The Ottoman Empire had practiced a genocide against the Armenians during the First World War. Several nations later declared this to be a “Crime Against Humanity”.

And this satisfies the lawyer part of me that needs some law, some decision or other authority to point to in order to prosecute and punish these acts. For lawyers anything less is just victors justice.

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.