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.

The Sands of Iwo Jima Timeshare

Sands of Iwo JimaClients come in with timeshare presented as two different legal problems:
1) Contract, as in how do I get out of this and
2) Estate planning, what happens to this when I die.

The first is usually answered by you sell it for a lot less than you paid for it.

The second depends on whether you only have a license to spend your vacation in some remote location the United States took by force, or you actually own some of that sand in fee simple absolute. More common is the license variety represented by “points”.

Shortly after I began composing this piece an estate planning client came in with the points variety. She actually uses the points. Much like any other amphibious invasion she spends considerable time planning and plotting more than a year in advance in order to maximize her usage, and not get stuck with the leftovers of places our country has seized but no one really wants, like a vacation on Iwo Jima.

The Doctrine of Virtual Representation Can’t Save The Farm

Sorry, but this does not mean they have passed a law which allows the client to log on to an interactive website and have a virtual lawyer who does whatever you tell him. Instead the concept predates the internet by centuries and means you are stuck with the decisions of those who came before you were born.

The Doctrine of Virtual Representation is a common law concept which means what we do today about our property can bind our heirs; both those that have been born or are yet to be born.

Imagine the chaos if we lacked this rule. Generations who come after decide they were not adequately represented in the deeds Grandpa did, and sue the estate for a larger share.

I had a great-grandfather who lost the ranch in a poker game. There was a divorce. How would it be if I now decided Great-grandma didn’t get enough out of her husband for that folly when the decree entered? So I look up his descendants and sue them?

Nope. Better to just get in your old truck and head on down the highway to the future, and forget about the past. What is done is done.

Dont Take The Hearsay Rule Personally

I have clients that do this.

They come into the office, relate a story and declare a conclusion. I lean back in my chair, review my notes and I tell them about 2/3rds of it is inadmissible as evidence. This is not well taken, like I am telling them they are unable to relate what they heard accurately. Well I’m not, but the hearsay rule is.

The rule reads something like this:

No statement, made out of court, shall be admitted into evidence for the truth of the matter asserted.

What?

Lets break it down: HEAR. You hear someone something,  assume it is true, then turn and then SAY it to someone else like a Judge and ask him to assume it is true too.

Example: “John told me the light was green when I went through the intersection”. Using this statement to prove the color of the light is hearsay. My clients will then  come to Johns defense, as if he is being accused of lying, which really confuses the issue.

It’s so much better if you actually saw the light. “I saw the light was green when I went through the intersection”. Not hearsay.

It’s just remarkable how often I interview a witness or a client and find most of what they have to say is based not on their own first hand knowledge, what they actually saw but instead a mass of hearsay, peppered with preexisting judgments about the actors involved and a personal agenda.

Hearsay. It’s an old rule, but a good rule. Please, don’t take it personally.

Evidence : As Seen on TV

There are no rules of evidence on television but that is where most folks learn to practice law.

On television lawyers can do anything, present anything and say anything and the judge always follows the script. The problem of evidence in real courtrooms is that this is not television and what may be admissible in fiction may not be admissible in a real court.

If you think about it Rules of Evidence are important so the fate of people and their property are not just a question of emotion or prejudice or the right scriptwriter, and instead their fate is based on what is reliable, or authentic, or can withstand a good questioning.

People come to me with their opinions and declare it to be evidence. Bits of paper that may support their position become facts set in stone when handled by them, but go up like so much smoke when marked by the clerk, offered as evidence then objected to on any number of basis; hearsay, authentication, the best evidence rule, the list goes on.

Then they get mad. Well fine, be mad, but what you see on TV is not evidence.

Lawyers as Chesspieces

The other day a client mentioned she was worried her ex-husband would “use his lawyer to block me.”

The perception that the lawyers are chesspieces in some game between parties to a divorce came to mind. Apparently we are mere objects in the war between the men and the women. Let us hope both parties can see the whole board.

For the record, I see myself as a knight, able to move two spaces in any direction, other than diagonal, then one more to either side.

Dad Wanted Me To Have That Speedometer

Shortly after a death personal property of the decedant t starts to disappear. This is not pursuant to a will,  or any court order. Instead it is some knob that is turned in the mind of the people who “knew him well” they all say, followed by “he wanted me to have this speedometer” or whatever.

What they really mean is “he doesn’t need this anymore and I want it”.

Most wills in our state have a provision for a list to found with the will at death declaring who is to get what after the author dies. The list has to be dated and signed but not witnessed, which is an exception to the normal wills acts formalities. Even so, no matter how easy the law is to follow most of the time people do not fill out the list and this leads to all kinds of mischief.

Instead things tend to evaporate causing friction among those of us left behind. Some of what is fought over is of little value, take this speedometer for example. I literally spent a day trying to prove the existence of old car parts and tools, as the decedant had left a large tract of land littered with old junked cars and the parts to go in them. This proved fruitless, let alone who entered the property and removed this speedometer to some “classic” auto which was still rusting there on the lot.

It is much harder it seems to remove a car that will not start and is covered in blackberry vines than a speedometer that is supposed to be entombed with the car.

It’s madness really. Stuff that was junk before the man died is now some prize to covet and obtain by any means and at any price. I was paid my fee for the effort. We lost.

Dad Wanted Me to Have This

I have literally fought in court over this speedometer