Do Not Write on the Evidence

How many times has a client come in with a great piece of evidence only to find it is ruined because they have indelibly added their testimony to the face of it in blue or black ink. It is as if the intense need to control events blots out any kind of judgment they might have had, or restraint to action until they can get some legal advice.

A letter might have proved their point, but who can say who is the author of all the rest of the commentary?document

I can hear the objection already, the document is not authentic because the author is undetermined.

Or in the case of a bank statement which was certainly produced by the bank, but who wrote “Uncle Charlie told me I was supposed to get this!!!” on the face of it?

 

 

I have vivid memories of a judge examining the offered exhibit then angrily declaring “Some one has written all over it!” knowing that someone was seated at counsel table next to me.

 

Objection Sustained.mean judge

Letters of Marque and Reprisal; Privatize the war on ISIS

It appears the President is hesitant. Obama

Elected on the pledge to return our troops home there seems to be mounting evidence they should have stayed.
ISIS
Back when the United States Constitution was first framed, it was not uncommon for a country to grant a license to a privately owned and armed ship to sail out onto the seas and sink, burn or capture as a prize the vessels of an enemy. Navy’s are expensive, and the entire enterprise is risky. Why not shift that risk, with the associated rewards, to some one else?

So at Article I, Section 8, part 11 it is reserved to Congress to:

Declare war, issues letters of marque and reprisal, and make rules concerning captures on land and water;privateer

Sure, Halliburton and Blackwater have given privatizing war a bad name in the present day, but as far back as Francis Drake (d. 1596 ) these men have been considered one piece of paper away from pirates. And that piece of paper made everything all legal. drake

Plenty of prizes await say, Shell Oil, in the region.

The President is hesitant, Congress should act. Let us issue letters of marque and reprisal to tame the beast that has engulfed Mesopotamia.
congress

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

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.

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.

The Courthouse Blues

There are two kinds of people to be found in the courthouse: Those on their way to hearings, and those emerging from hearings. It is not unlike a hospital.

Entering either building the litigant or patient is apprehensive or they are overconfident. Some presume the death penalty. Some do not appreciate the peril they are in. All are hopelessly at the mercy of the lawyers or doctors.

Leaving the buildings there is either relief, increased anxiety or profound sorrow.

But the courthouse alone can in one day change the balance of power between litigants. Often the litigant arrives with a smugness, a sense of entitlement or self-righteousness that never plays well. Humility, expressed in pleadings, appearance or speech can go a long way. Unfortunately this is considered unduly meek by some, and they do not even consider they might be wrong.

Emerging from the hearings we hear the long wail of those who have lost. Think of the painting The Scream by Munch.  Or there is the rush outside, the cigarette poked in the mouth and hurriedly lit, family and friends trailing behind.

Like a soldier that has seen too much, I am no longer moved when a woman loses custody of her children. Normally this is because either the father is just a better parent, but more often because the mother has presumed she is “free” and can do just about anything and still retain her children.

It is no longer so. Our state adopted an equal rights amendment to our state constitution when it was fashionable to do so, 1972. The amendment also declares the sexes have equal responsibility.

You have come a long way baby. You have an equal right to the courthouse blues.

Your Parents Estate Is Not An Opportunity to Live Out Long Held Grudges

Lets say your parents die. Lets say they trusted you to “do the right thing” so they have made you the personal representative of the estate when they are both gone in order to distribute the estate “Subject to Probate”. Lets review what that means.

“Subject to Probate” means notifying creditors and paying the bills. It means making sure the funeral is paid for and the taxes have been addressed. It means making sure the people who are to get the money do get the money.

“Subject to Probate” does not mean a witch hunt. It is not a cry to “unleash the lawyers”. Your parents estate is not an opportunity to get back at your siblings. This is not your money, it belongs to the people or charities listed in the will, “subject to probate”.

During the probate the personal representative is not allowed to profit. If you are the personal representative you have what is called a fiduciary duty to the people named in the will. The metaphor is that the probate is not an arms length transaction, and certainly not a means to “get a good deal” particularly if it is at the expense of the others named in the will.

The appropriate metaphor instead is more closely related to family life, instead of held at arms length, you hold them close. If you find you cannot do this, resign. All will be better for that act of discretion.

 

Executrix or Treat?

It is a cruel joke that some name siblings co-executors or executrix’s to administer the estate at passing. In the parents effort to be “fair” the result is often the worst that is said about the probate process is the result, that is long delay and lots of attorney fees. Siblings often change at death, and those who were cooperative and loving as the parent passed suddenly realize their ship has come in and things get nasty.

(Let me pause and comment on the lexicon; we no longer have gender in Washington, so either what were men or women acting for the estate are referred to as “personal representative”, but the name just is not as cool.

It’s like the word “moot”. Clients love this word and try to work the conversation around so they can use it. Most blow it and say instead “mute”.

If that were to happen the case would be mute? I am asked. Yes, I say, without correction but that concept leaves my mind full of imaginative sketches of what that must look like; for example lady Justice has not only a blindfold over her eyes but a gag in her mouth, her hands full of a scale and sword, so there is just no hope to gain freedom.  Now let’s get back to the topic of this post.)

On the other hand the abuse of power one sibling can have over the rest is often not a good result either. The remedy is litigation, more attorney fees, more delay. The media refers to this as “languishing in the courts” as if there were Biblical or epic proportions to how long conflict can last in courtrooms in America. Now the image is lady Justice wailing and grinding her teeth in a kind of hell.

In an effort to avoid this awful thing called “probate” people contemplating death resort to will substitutes like trusts. Frankly, my experience is the Trustee ends up in just as much trouble as the personal representative, and the beneficiaries are just as scared they are being “taken”. The administration which was designed to take a few weeks actually takes longer than a probate because the rules are not as clear.

People have been dying in this jurisdiction since it was a Territory ( no one died here before that ) and so there is plenty of law on the topic of death. Trusts on the other hand are designed to live on, the zombie version of the dead. As a relatively new way to pass property the legal ground is not as well tread. At least the term “trustee” is gender neutral, and we don’t have to wait for the legislature to emasculate the man in charge, which would otherwise happen because any reference to gender in Washington causes the citizenry to go mute.