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 The historical documents delineating the role of the monarch, Parliament and the judiciary remains a workable collection of documents and practices subject to change from time to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

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

Dying Declarations Are For Slayers Only

After the funeral people come to see me about probating the Last Will and Testament the family member left behind. The interview sometimes begins like this:
“Dad wanted me to have the farm. He told me so on his death-bed. He said, ‘I want you to have the farm’.”
family farm

I ask for the will and can find no reference to this bequest. Instead the client and all her siblings are listed share and share alike which means they all get an equal portion ownership.

“I am afraid you have a hearsay problem”, I tell the shocked client.

eager person
This “dying declaration” always seems to benefit the client immensely.

There is some room for dying declarations to be admitted in court.

First, the person has to understand they are about to die when the statement is made.

Second, it is only admissible to prove the client is guilty of murder of the decedent.

Third, if proven, the client is not going to inherit in any case because of the rule that says slayers do not inherit. axe murderer

Fourth, I refer this person out to a firm that handles criminal law.

A good example of what might be admitted against the client was John Lennon’s exclamation “I’m Shot!” if offered in the prosecution of Mark Chapman. john lennon

Faced with this and other evidence, Chapman plead guilty to 2nd Degree Murder and is still in prison.

So friends and neighbors let’s go with what is on paper and not a dying declaration. If admitted at all, it might mean you are going to jail.

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.