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.

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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.

Television Law: Perry Mason

Someone searched this blog for the titles of the books stacked up on the screen as the credits appeared at the end of Perry Mason. The answer: I do not know, I was a child sitting on my father’s knee scared by the ominous music that was the theme song of the show.

If you are old enough to remember, the show almost always ended with Mason successfully defending his client accused of some crime. Of course he was aided by witnesses who could precisely remember to the minute what they were doing and when they were doing it and a prosecutor who seemed destined to walk into every trap Mason laid.

Mason could also afford to have his secretary, Della Street, by his side during the trial, along with his private eye and paid muscle, Paul Drake. Drake would conduct discovery in the middle of the trial, driving around Los Angeles in his very large convertible and locating the surprise witness that changed everything in the trial. I am not sure what Della was doing there. What is really strange is my Dad ended up with a legal secretary that looked a lot like Della, but she never came to any trials.  Maybe someone had to stay behind to answer the phone.

Our firm couldn’t afford a Paul Drake. Sometimes we hired a private eye, but they were never as well-groomed and articulate as Sam Spade, Thomas Magnum, or Paul Drake. Instead they were almost always a Jacques Clouseau.

The show was in black and white. My son recently told me he believed that the world used to be in black and white, as all the old television and movies were in that medium. Then at some point color was discovered and the world changed. He is right of course, and I believe the year was 1968. Perry Mason was cancelled by then.

Lawyers Health; Unstated Issues in an Iconic Profession

When you think “lawyer” what do you think? Big car? Fancy Suit? Money? Ask yourself where did you get such ideas? I suggest the source is media, and not first hand experience.

Now let’s think about how that man achieved the title. First there is a great deal of investment to just achieve the license. Four years of college, three years of law school, then a bar exam. One may have thought in terms of art and beauty before law school, but afterward one thinks solely of crime and civil remedies. The study doesn’t really stop there because any lawyer with anything to sell makes the study of law part of the pattern of his life.

Next lets consider the practice. People come in, often with complex fact patterns and are either being sued, suing or worried about both. The conflict most of the time involves another individual who has gone to his own lawyer with his complex version of the facts. Each side “lawyer’s up” to use a vernacular term I heard this week, and the contest is on.

For most of my career I have wondered about the long-term impacts on the individual who takes on this job. What does it mean to the psyche to daily handle human conflict and misery day in and day out? We joined the profession to try to help people, at least most of us have. The steady stream of people needing help often without adequate funding adds to the stress. When the lawyer has to pay the staff at the end of the month it ultimately is the lawyer who pays for the legal needs of those of limited means who nonetheless have complex fact patterns. In a word what does this all mean?

Stress. That is what it means, and the manner in which the individual copes with that stress lays the groundwork for how long he remains alive. In our town we lose a judge or a lawyer on average about once a year. Causation is often cancer or heart disease. The habits to deal with stress vary, but it doesn’t take a lot of imagination to see that a steady diet of stress followed by cigarettes and booze shorten life.

Some die early because they have that genetic marker that means they will. One lawyer was a healthy Himalayan climber. He got cancer and died anyway. Most however are not so destined; they are overweight because the demands of the practice require a remarkable number of hours for study, review, and preparation for hearings. We make about 40 important decisions a week and are often disappointed by results of trials.  It is easier to have a scotch at the end of each day than to go for a walk.

Next time the term “lawyer” comes to mind try not to think about the iconic suit or car. Think of it as a dangerous profession.  Think of lawyers as people who have run the risks to really understand the secret knowledge. They do it for you.

Will Contests

My Daddy ( a lawyer ) used to say Judges are like a box of chocolates. You never know what you’re going to get.

But there is one thing I know you will get when you contest a will most of the time: Defeated.

Most of these cases are brought on three basis; 1 )Testamentary Capacity: for example the Dad’s mind was gone when he signed this will or 2) Undue Influence: someone taking an unusually large or unnatural gift had a position of trust with Dad or 3) Fraudulent Misrepresentation in the execution of the document: Dad signed a will when he was told it was a contract to buy a new Ford.

This is a complex area of shifting presumptions of law which start out favoring the will as written, and is peppered with problems of proof to over come that presumption ranging from excluded testimony due to the Dead Man’s Statute to just how good your medical expert is who saw Dad before he signed this will.

This trouble is compounded by the standard of proof. The contestant has to prove these things that would invalidate the will by clear cogent and convincing evidence. That is the civil equivalent of putting a man in jail, well beyond a preponderance.

Often the question is would Dad have any reason to do what the will says. If so, it is doubtful the there is much of a contest. Better off spending the attorney fees on a real box of chocolates.

Another Myth: The Right Lawyer can Win

Nope. not true. The lawyer cannot change the facts. Nor can he or she change the law. At best they can persuade. Here is something Aristotle taught me about persuasiveness (Yes, I am old enough to have known him personally):

What you want to persuade the court to do must be logos or logical.

What you want to persuade the court to do must be ethos or ethical.

What you want to persuade the court to do must be pathos or likable.

WHAT? The court has to like what they do? That’s right ladies and gentlemen we have to count the Judge’s emotions, reactions, take aways or whatever you want to call that have a dramatic impact on your case. I recall one chambers conference where my father was discussing possible outcomes in the case when the judge said to him “I wouldn’t do that even if I liked your client”. I am not making this up.

So, the right lawyer cannot change the outcome of the case. But the wrong lawyer can certainly lose it. Is the lawyer you might hire logical, ethical and likeable? Do they seem to be on a mission or really interested in your case?

And candidly ask yourself, do you think your case is logical? Is it ethical? Do you think it is likable?

Pathos. Think about it.

Hooray for Hollywood!

This was my first blog post ever. pparently no one in Hollywood listened. Oscar winning actress Anjelica Huston was being interviewed by Terry Gross on NPR’s “Fresh Air” recently and referenced her mothers death as something she couldn’t handle emotionally well. Understandable, she was 17. angelica huston

But then she said she didn’t hang around for the reading of the will . Well Anjelica, you didn’t miss much. Best to skip law school too and keep your day job as an Oscar winner.

Here is what I said about this in 2011. At least I know Hollywood doesn’t care what I write here.

Apparently without any desire to find out how it really works, Hollywood has developed several legal conventions for us all to consume, and presume, exist outside the theater. Here are some events on screen and how they play out in real life.

1) The reading of the will. You know how it looks, it’s the same every time. A really expensive looking conference room, a bushy browed lawyer at one end of the table reads to the assembled family members, or in the case of Rainman just Tom Cruise. In a slow steady voice he parcels out the property of the decedant and the people react. “I definitely got the roses, right?”
rainman
I hate to bring you up to date on current events but this doesn’t happen. I polled the lawyers on the probate list serve here in Washington State and found only one man who has ever been asked to do this and declared he would never do it again. It is a prescription for drama as well as domestic violence.

I regularly encounter people in the days following a death in the family who expect the reading of the will is going to be scheduled sometime by my firm, and that people should make travel plans to be there. Often people lie about whether this event has taken place, to yank the chain of the sister they never liked. “Too late Char, the will has been read! HAHAHAHA!”

2) Captains of ships can marry people. No. Persons licensed by authorities in states or other countries to perform weddings can marry people. Perhaps that marriage you are in was performed by the captain of the Love Boat, but you probably ought to check what credentials on land he was given for the act before you set sail. Don’t worry, the children are legitimate in most jurisdictions.the love boat in wreckers yard

3) The right lawyer can win anything. I literally have a memory of sitting on my fathers knee watching Perry Mason as a child. Perry won everything. The music at the end of the show with the books stacked up on screen as the credits rolled by scared the hell out of me. But Perry Mason is not the way it is. perry mason

If you want a reality check, watch A Civil Action starring John Travolta as the “right lawyer”. Its based on a true story, and I don’t think they deviatated from how things really happen. Fighting for an elusive result most of us would recognize as “justice” John makes mistakes and goes broke. And that ladies and gentlemen is a harsh reality check, even for the right lawyer.
John Adams
Even John Adams.