Well, tomorrow is my last "official" day at the law firm. It's bittersweet, since I know I have to finish my undergraduate studies to get to law school, but part of me wishes I could just stay for a while longer. It was an enriching experience which I feel will help me immensely before, during, and after law school. You can't be taught how to interact with people from court or other law firms in school. Or how you can tell whether or not another attorney approaching you with a settlement can be trusted or not. There is no textbook procedure for dealing with disgruntled clients. There is no real way to predict the way a hearing or trial will progress. There is no way to measure your strengths or weaknesses against opposing counsel. It is impossible to truly know whether or not a client has been 100% truthful. Yet, these are all things I feel more comfortable with now, even with only having worked in a law firm for the summer. This experience overall will work to my advantage in four years when it's time to start handing out business cards that say "Esq." after my name.
I am very grateful for the opportunity that I was given to be paid for something that I have been passionate about since I was a young boy. I have met wonderful people and made connections that I know will be helpful in the very near future. It's definitely something that any of you considering a career in law need to experience to at least some degree before actually practicing on your own. Not only because there are certain things that can't be taught, but because you will meet people who will be more than willing to help get you started on Day 1.
Thursday, August 2, 2012
Sunday, July 29, 2012
Ancient Island Wisdom
Friday, we had a Pacific Islander come in for a consultation with a few members of her family. Her mother was sitting out in the waiting area with me making small talk, and the following exchange occurred:
Her: So, do you know what kind of law you want to practice?
Me: Yes, corporate litigation. Very dry to most people, but any aspect of law is exciting to me.
Her: But...(proceeds to tell a long story)
Now, the purpose of this woman's story was to prompt me to reconsider the type of law I wanted to practice. Though I did consider it (very, very briefly), she raised some excellent points which I think are worth bringing to the attention of any of my colleagues out there who wish to practice law.
Point #1: Too Many Hours Spent Working in Large Firms
This was the main point she wanted to get across. It is a pretty well-known fact to anyone considering corporate law that when a firm tells you that they "expect all of their first year associates to work 40 hours per week," it actually translates into "in order to be considered for partnership someday, we expect you to bill 70+ hours per week." She proceeded to tell me that she worked for a brokerage firm, and regretted spending so much time in the office seeking professional success, neglecting her family in the process. This is an excellent point. To many, work is definitely not everything in life, and this is something that is especially important to consider if you have a family and want to be a "family man" (or woman, for that matter). Personally, I don't see marriage visible in the (near) future, so I kind of disregarded this part of her story. I have no issue working 70+ hours per week if I have nothing better to do with my time.
Point #2: It's Possible to Live Comfortably in Private Practice
This is also an excellent point to consider, especially if, after reading the first point, you've decided that an alternative to corporate law is something you need to find. According to an American Bar Association (ABA) Journal article I read some time ago, approximately 65% of all attorneys in "small" firms are private practice attorneys. Furthermore, private practice attorneys (who are at least halfway decent) often make an above average income each year, and are thus able to live comfortably while still being able to appreciate aspects of life outside of work. Once again, I personally would rather not have to worry about money (because I know I'll have enough), and private practice doesn't appeal to me. I would have to worry about paying employees, renting office space, utilities etc., and I'm not really the management type. Should I not be able to find a home in a large firm practicing corporate law, I would happily go into business with a partner or on my own practicing a different type of law such as criminal defense or civil suits, but I will cross that bridge when I get there. If you've gone through the effort to get a law degree, private practice is worth something exploring no matter who you are, even if it is a last resort. Surely you feel you are able to contribute your services to those who need them, so why not set up shop and take a crack at it?
Point #3: Why Not Practice Family Law?
This one I disagreed with vehemently. She explained that with family law, once you've done it long enough, you'll know exactly what to do at all times. This is a good point, since family law seems like it gets relatively simple after a while. The same laws and precedent are used over and over, to argue the same issues time and time again. It seems relatively simple, "easy money" if you will, so why do I disagree with her on this point? Simply because that's boring to me. I want to walk into the office and have to deal with a unique legal issue every day. Okay, maybe "every day" will never happen, but I at least want the challenge of dealing with unique issues every day whether it be negotiating a contract, checking zoning laws, or even dealing with possible copyright infringement. I don't want to know exactly what to write without having to research it. Once again, if you don't think corporate law is for you, family law is an excellent option. Since you'd mostly be dealing with the same situations repeatedly, you'd have a lot of time to dedicate to thinking about where you should go for family dinner, instead of worrying about what to do at the office. Also, family lawyers are very important for society. People will get married, and many of those people will get divorced. Those people getting divorced need an attorney who can help them in one will surely be one of their greatest obstacles in life. Even I am strongly considering taking family law cases for my pro bono work, since some people can't afford a lawyer to help them with such a daunting task in their lives.
Final Thoughts
Though I am still set on practicing corporate law, putting in very long weeks, and being challenged as a professional, I realize that it's not for everybody. I know some of you have very different goals and views of what role the title of "attorney and counselor at law" will play in your life. I felt like sharing some of her wisdom might help bring everything into perspective, and help everyone see different options and how being an attorney can still allow for other important things in life.
Her: So, do you know what kind of law you want to practice?
Me: Yes, corporate litigation. Very dry to most people, but any aspect of law is exciting to me.
Her: But...(proceeds to tell a long story)
Now, the purpose of this woman's story was to prompt me to reconsider the type of law I wanted to practice. Though I did consider it (very, very briefly), she raised some excellent points which I think are worth bringing to the attention of any of my colleagues out there who wish to practice law.
Point #1: Too Many Hours Spent Working in Large Firms
This was the main point she wanted to get across. It is a pretty well-known fact to anyone considering corporate law that when a firm tells you that they "expect all of their first year associates to work 40 hours per week," it actually translates into "in order to be considered for partnership someday, we expect you to bill 70+ hours per week." She proceeded to tell me that she worked for a brokerage firm, and regretted spending so much time in the office seeking professional success, neglecting her family in the process. This is an excellent point. To many, work is definitely not everything in life, and this is something that is especially important to consider if you have a family and want to be a "family man" (or woman, for that matter). Personally, I don't see marriage visible in the (near) future, so I kind of disregarded this part of her story. I have no issue working 70+ hours per week if I have nothing better to do with my time.
Point #2: It's Possible to Live Comfortably in Private Practice
This is also an excellent point to consider, especially if, after reading the first point, you've decided that an alternative to corporate law is something you need to find. According to an American Bar Association (ABA) Journal article I read some time ago, approximately 65% of all attorneys in "small" firms are private practice attorneys. Furthermore, private practice attorneys (who are at least halfway decent) often make an above average income each year, and are thus able to live comfortably while still being able to appreciate aspects of life outside of work. Once again, I personally would rather not have to worry about money (because I know I'll have enough), and private practice doesn't appeal to me. I would have to worry about paying employees, renting office space, utilities etc., and I'm not really the management type. Should I not be able to find a home in a large firm practicing corporate law, I would happily go into business with a partner or on my own practicing a different type of law such as criminal defense or civil suits, but I will cross that bridge when I get there. If you've gone through the effort to get a law degree, private practice is worth something exploring no matter who you are, even if it is a last resort. Surely you feel you are able to contribute your services to those who need them, so why not set up shop and take a crack at it?
Point #3: Why Not Practice Family Law?
This one I disagreed with vehemently. She explained that with family law, once you've done it long enough, you'll know exactly what to do at all times. This is a good point, since family law seems like it gets relatively simple after a while. The same laws and precedent are used over and over, to argue the same issues time and time again. It seems relatively simple, "easy money" if you will, so why do I disagree with her on this point? Simply because that's boring to me. I want to walk into the office and have to deal with a unique legal issue every day. Okay, maybe "every day" will never happen, but I at least want the challenge of dealing with unique issues every day whether it be negotiating a contract, checking zoning laws, or even dealing with possible copyright infringement. I don't want to know exactly what to write without having to research it. Once again, if you don't think corporate law is for you, family law is an excellent option. Since you'd mostly be dealing with the same situations repeatedly, you'd have a lot of time to dedicate to thinking about where you should go for family dinner, instead of worrying about what to do at the office. Also, family lawyers are very important for society. People will get married, and many of those people will get divorced. Those people getting divorced need an attorney who can help them in one will surely be one of their greatest obstacles in life. Even I am strongly considering taking family law cases for my pro bono work, since some people can't afford a lawyer to help them with such a daunting task in their lives.
Final Thoughts
Though I am still set on practicing corporate law, putting in very long weeks, and being challenged as a professional, I realize that it's not for everybody. I know some of you have very different goals and views of what role the title of "attorney and counselor at law" will play in your life. I felt like sharing some of her wisdom might help bring everything into perspective, and help everyone see different options and how being an attorney can still allow for other important things in life.
Saturday, July 28, 2012
Temporary Protective Order (TPO)
Disclaimer: The following post may contain graphic and/or disturbing language dealing with real issues clients face. No offense is intended, please feel free to stop here if you think it will bother you.
(This post was prompted by two events which took place on Friday involving two clients.)
Temporary Protective Orders
A temporary protective order (TPO) is a fairly common order issued from a court in any state. It is colloquially referred to as a "restraining order," since it restrains an "abuser" from harassing the person who requested the order. In the State of Nevada, TPO's are issued for stalking and harassment, harm to minors, sexual assault, harassment in the workplace, and domestic violence. It is important to note that in Nevada, only the Family Court may issue a TPO for domestic violence, while Justice Court issues TPO's for other forms of abuse or harassment.
TPO's are fairly straightforward, they are intended to protect people from the above mentioned forms of abuse or harassment temporarily, until both parties can come to some sort of functional relationship again. In some cases, they even bar contact between the two parties (this is known as a "no-contact" order).
The penalties for violating a TPO are the same penalties for violating any court order, and include fines and/or possible jail time for contempt of court, and attorney's fees for subjecting the issue at hand to further litigation. Aside from these legal consequences, violating a TPO may SEVERELY impact the outcome of a trial. The court takes TPO violations pretty seriously, most likely because some judges consider it incredibly disrespectful to violate a direct order from the court, and see it as you more or less told the court to "piss off."
Friday's Fiasco(s)
For the purposes of my job, we most often deal with the TPO's issued for domestic violence. Though it seems like it would be pretty straightforward, there was an issue Friday with g
etting a TPO for a young woman whose husband: forced her to have intercourse at his will, would throw food and break dishes if a meal wasn't prepared to his liking, and even threatened to kill our client. The TPO office said that it may not be granted because no actual physical violence occurred. This bothered me considerably. Though no actual violence was reported, the description of events not only meets the common law definition of assault, but also the statutory definition set forth in the Nevada Revised Statutes (NRS 200.471: "'Assault' means: 2.) Intentionally placing another person in reasonable apprehension of bodily harm."). Therefore, although she could file a police report and her husband could be prosecuted by the State, she was told that the TPO was not likely to be granted since no actual 'violence' occurred. Personally, I think there's something wrong with that. For one, it meets the legal definition of assault according to the State of Nevada, and secondly, how would the Court know if our client (who obviously witnessed the actions) was placed in "reasonable apprehension of bodily harm?" Shouldn't a conservative approach be taken, and since a threat of violence exists, the TPO be granted as a precautionary measure? At any rate, we will know if it was granted sometime early next week, but for the time being the client was advised not to go home, and not to meet her husband anywhere no matter how much he begs.
The second incident involves a client with a degenerative mental disease. From time to time, this client does not feel like being pestered, and her soon-to-be-ex spouse constantly harasses her and tries to get her to accept an agreement which she has no desire to discuss at any given time. She has come very close to agreeing to terms which would royally screw her over, and we have had to maintain nearly constant contact to make sure she hasn't signed any documents. It has gotten to the point where we have advised her to apply for a TPO on the grounds that she is constantly being harassed. After seeing why the first client would have an issue with her domestic violence TPO, I am somewhat doubtful that this client will get one simply because her spouse keeps trying to force an agreement down her throat. What makes this instance all the more frustrating is that we have asked his attorney to leave her alone, and do all negotiating through his attorney's office, and our office. Honestly, I hope she gets her TPO, this way we have time to negotiate terms instead of constantly reject them and constantly be on defense.
Conclusion
TPO's are pretty easy to understand, however they seem to be an ongoing issue since many people consider these "orders" to be mere recommendations handed down by the court. Depending on how the judge views a violation, the penalties vary, but violations will almost always have a very negative impact on your case if it goes to trial. TPO violations not only demonstrate a lack of consideration for a court order, but are also used in trial as evidence to support the claim that you are not a law-abiding person, and your testimony should be taken with a grain of salt.
(This post was prompted by two events which took place on Friday involving two clients.)
Temporary Protective Orders
A temporary protective order (TPO) is a fairly common order issued from a court in any state. It is colloquially referred to as a "restraining order," since it restrains an "abuser" from harassing the person who requested the order. In the State of Nevada, TPO's are issued for stalking and harassment, harm to minors, sexual assault, harassment in the workplace, and domestic violence. It is important to note that in Nevada, only the Family Court may issue a TPO for domestic violence, while Justice Court issues TPO's for other forms of abuse or harassment.
TPO's are fairly straightforward, they are intended to protect people from the above mentioned forms of abuse or harassment temporarily, until both parties can come to some sort of functional relationship again. In some cases, they even bar contact between the two parties (this is known as a "no-contact" order).
The penalties for violating a TPO are the same penalties for violating any court order, and include fines and/or possible jail time for contempt of court, and attorney's fees for subjecting the issue at hand to further litigation. Aside from these legal consequences, violating a TPO may SEVERELY impact the outcome of a trial. The court takes TPO violations pretty seriously, most likely because some judges consider it incredibly disrespectful to violate a direct order from the court, and see it as you more or less told the court to "piss off."
Friday's Fiasco(s)
For the purposes of my job, we most often deal with the TPO's issued for domestic violence. Though it seems like it would be pretty straightforward, there was an issue Friday with g
etting a TPO for a young woman whose husband: forced her to have intercourse at his will, would throw food and break dishes if a meal wasn't prepared to his liking, and even threatened to kill our client. The TPO office said that it may not be granted because no actual physical violence occurred. This bothered me considerably. Though no actual violence was reported, the description of events not only meets the common law definition of assault, but also the statutory definition set forth in the Nevada Revised Statutes (NRS 200.471: "'Assault' means: 2.) Intentionally placing another person in reasonable apprehension of bodily harm."). Therefore, although she could file a police report and her husband could be prosecuted by the State, she was told that the TPO was not likely to be granted since no actual 'violence' occurred. Personally, I think there's something wrong with that. For one, it meets the legal definition of assault according to the State of Nevada, and secondly, how would the Court know if our client (who obviously witnessed the actions) was placed in "reasonable apprehension of bodily harm?" Shouldn't a conservative approach be taken, and since a threat of violence exists, the TPO be granted as a precautionary measure? At any rate, we will know if it was granted sometime early next week, but for the time being the client was advised not to go home, and not to meet her husband anywhere no matter how much he begs.
The second incident involves a client with a degenerative mental disease. From time to time, this client does not feel like being pestered, and her soon-to-be-ex spouse constantly harasses her and tries to get her to accept an agreement which she has no desire to discuss at any given time. She has come very close to agreeing to terms which would royally screw her over, and we have had to maintain nearly constant contact to make sure she hasn't signed any documents. It has gotten to the point where we have advised her to apply for a TPO on the grounds that she is constantly being harassed. After seeing why the first client would have an issue with her domestic violence TPO, I am somewhat doubtful that this client will get one simply because her spouse keeps trying to force an agreement down her throat. What makes this instance all the more frustrating is that we have asked his attorney to leave her alone, and do all negotiating through his attorney's office, and our office. Honestly, I hope she gets her TPO, this way we have time to negotiate terms instead of constantly reject them and constantly be on defense.
Conclusion
TPO's are pretty easy to understand, however they seem to be an ongoing issue since many people consider these "orders" to be mere recommendations handed down by the court. Depending on how the judge views a violation, the penalties vary, but violations will almost always have a very negative impact on your case if it goes to trial. TPO violations not only demonstrate a lack of consideration for a court order, but are also used in trial as evidence to support the claim that you are not a law-abiding person, and your testimony should be taken with a grain of salt.
Monday, July 23, 2012
Ex Post Facto?
ex post facto law (from the Latin for "from after the action" or "after the fact")
A law which changes the status or punishment for an action after the action has been committed.
United States Constitution
Article I, Section 9
"No Bill of Attainder or ex post facto Law shall be passed."
The founding fathers of the United States took two steps forward in terms of ensuring the protection of individual rights and liberties in writing the Constitution. In recent decades, however, lawmakers on federal and local levels seem to be content with taking one step back by passing legislation which teeters on the brink of unconstitutionality. Furthermore, both the United States Supreme Court, and state Supreme Courts are upholding these "borderline" constitutional infractions.
Civil Commitment of Sex Offenders
A fairly recent example of a questionable ex post facto law being upheld can be found in the US Supreme Court's decision in United States v. Comstock, where the Court found that Congress was within its power under the Commerce Clause in passing legislation allowing the civil commitment of mentally ill sex offenders, after they served their criminal sentence. What surprises me is the fact that the Supreme Court did not want to touch the issue dealing with the possibility that a civil commitment was retroactive punishment, which would make it an ex post facto law. Instead, the argument was limited to the scope of whether or not the Commerce Clause allowed for Congress to enact a section of the Adam Walsh Child Protection and Safety Act of 2006.
It is my opinion that this "civil" commitment is punitive in nature, in the sense that it restricts the movement and freedom of offenders who have already served a criminal sentence, by detaining them once again. Its intent is to remove dangerous sex offenders from society by means of a "civil" sentence, which mirrors the intent of the criminal sentence they just finished serving. They are, for all intents and purposes, being punished twice for the same offense.
Arizona Sex Offender Registration
A similar issue was heard not once, but twice, by the Arizona Supreme Court. The opinions in State v. Noble and State v. McCuin answer (sort of) the question of whether or not an Arizona law forcing ALL sex offenders (whether convicted previously or in the future) was imposing punishment on previously convicted sex offenders after their time had been served. Noble developed a reasonable three-pronged test which questioned: 1.) the retroactivity of the law on defendants, 2.) how burdensome the law is on the defendant, and 3.) whether this law carried a criminal penalty.
(Source: Tempe Criminal Defense Blog)
The author of Tempe Criminal Defense notes that this law is punitive for the same reasons why others and I find Comstock to be punitive, in that it restricts movement. While Noble decided that the law was both retroactive and punitive, McCuin upheld the Arizona law based upon the belief that the law was intended to "regulate" and not to "punish."
I would argue that while "regulation" of sex offenders is necessary, the law's attempt at regulation is inherently punitive. Sex offenders movements are restricted, with particular regard to where they are allowed to live. They are not permitted to live within 1,000 feet of any school or day-care facility, or any location where it is likely children will be present. Further, sex offenders are often not permitted contact with children. Though this certainly regulates sex offenders, the restriction on movement makes it borderline punitive. It is part of a sex offender's punishment that they cannot live within 1,000 feet of certain institutions, and it is part of their punishment that they cannot associate with minors. The fact that these same provisions are imposed as retroactive regulations through this law do not detract from the fact that they are forms of punishment.
Final Thoughts...
From a purely constitutional law standpoint, I believe these laws to be unconstitutional. I find it difficult to believe that these laws would have been upheld by judiciaries if they dealt with trivial issues. However the subject matter is difficult to ignore, and certainly not something to be taken lightly: the fact that their common goal is to regulate sex offenders.
Please feel free to leave any thoughts or comments below.
A law which changes the status or punishment for an action after the action has been committed.
United States Constitution
Article I, Section 9
"No Bill of Attainder or ex post facto Law shall be passed."
The founding fathers of the United States took two steps forward in terms of ensuring the protection of individual rights and liberties in writing the Constitution. In recent decades, however, lawmakers on federal and local levels seem to be content with taking one step back by passing legislation which teeters on the brink of unconstitutionality. Furthermore, both the United States Supreme Court, and state Supreme Courts are upholding these "borderline" constitutional infractions.
Civil Commitment of Sex Offenders
A fairly recent example of a questionable ex post facto law being upheld can be found in the US Supreme Court's decision in United States v. Comstock, where the Court found that Congress was within its power under the Commerce Clause in passing legislation allowing the civil commitment of mentally ill sex offenders, after they served their criminal sentence. What surprises me is the fact that the Supreme Court did not want to touch the issue dealing with the possibility that a civil commitment was retroactive punishment, which would make it an ex post facto law. Instead, the argument was limited to the scope of whether or not the Commerce Clause allowed for Congress to enact a section of the Adam Walsh Child Protection and Safety Act of 2006.
It is my opinion that this "civil" commitment is punitive in nature, in the sense that it restricts the movement and freedom of offenders who have already served a criminal sentence, by detaining them once again. Its intent is to remove dangerous sex offenders from society by means of a "civil" sentence, which mirrors the intent of the criminal sentence they just finished serving. They are, for all intents and purposes, being punished twice for the same offense.
Arizona Sex Offender Registration
A similar issue was heard not once, but twice, by the Arizona Supreme Court. The opinions in State v. Noble and State v. McCuin answer (sort of) the question of whether or not an Arizona law forcing ALL sex offenders (whether convicted previously or in the future) was imposing punishment on previously convicted sex offenders after their time had been served. Noble developed a reasonable three-pronged test which questioned: 1.) the retroactivity of the law on defendants, 2.) how burdensome the law is on the defendant, and 3.) whether this law carried a criminal penalty.
(Source: Tempe Criminal Defense Blog)
The author of Tempe Criminal Defense notes that this law is punitive for the same reasons why others and I find Comstock to be punitive, in that it restricts movement. While Noble decided that the law was both retroactive and punitive, McCuin upheld the Arizona law based upon the belief that the law was intended to "regulate" and not to "punish."
I would argue that while "regulation" of sex offenders is necessary, the law's attempt at regulation is inherently punitive. Sex offenders movements are restricted, with particular regard to where they are allowed to live. They are not permitted to live within 1,000 feet of any school or day-care facility, or any location where it is likely children will be present. Further, sex offenders are often not permitted contact with children. Though this certainly regulates sex offenders, the restriction on movement makes it borderline punitive. It is part of a sex offender's punishment that they cannot live within 1,000 feet of certain institutions, and it is part of their punishment that they cannot associate with minors. The fact that these same provisions are imposed as retroactive regulations through this law do not detract from the fact that they are forms of punishment.
Final Thoughts...
From a purely constitutional law standpoint, I believe these laws to be unconstitutional. I find it difficult to believe that these laws would have been upheld by judiciaries if they dealt with trivial issues. However the subject matter is difficult to ignore, and certainly not something to be taken lightly: the fact that their common goal is to regulate sex offenders.
Please feel free to leave any thoughts or comments below.
Do Things the "Right" Way
One thing that may seem pretty obvious about the legal system is the fact that there are certain procedures in place for the way things need to be done. This may seem obvious but believe it or not, some people have difficulty understanding this.
Here is an example of one such instance.
It's a child custody dispute, with the defendant being accused of violating the order regarding visitation rights and joint custody of the two minor children. During the course of litigation, Defendant relocated to another house in Las Vegas and notified Plaintiff (our client) of his new address. However, Defendant is required to file a formal change of address with Family Court which, needless to say, Defendant did not do. Defendant, by and through his attorney, contacted the office alleging that it was Plaintiff's responsibility to notify us of the new address, so pleadings may be mailed to the proper place. This is not our client's responsibility, and we continued to mail pleadings to the address on file with Family Court. After hearing Defendant nearly beg us to stop doing so, we began mailing pleadings to the new address. However, his failure to follow the Court's rules has negatively impacted the amount of time he has to prepare for trial.
Moral of the story: In legal matters, and in life, just jump through the hoops and go through the proper steps. It will save a lot of time and energy on your part in the future.
Here is an example of one such instance.
It's a child custody dispute, with the defendant being accused of violating the order regarding visitation rights and joint custody of the two minor children. During the course of litigation, Defendant relocated to another house in Las Vegas and notified Plaintiff (our client) of his new address. However, Defendant is required to file a formal change of address with Family Court which, needless to say, Defendant did not do. Defendant, by and through his attorney, contacted the office alleging that it was Plaintiff's responsibility to notify us of the new address, so pleadings may be mailed to the proper place. This is not our client's responsibility, and we continued to mail pleadings to the address on file with Family Court. After hearing Defendant nearly beg us to stop doing so, we began mailing pleadings to the new address. However, his failure to follow the Court's rules has negatively impacted the amount of time he has to prepare for trial.
Moral of the story: In legal matters, and in life, just jump through the hoops and go through the proper steps. It will save a lot of time and energy on your part in the future.
Tuesday, July 17, 2012
Subpoenas (Part 2)
Yesterday, we talked a little about why subpoenas aren't as bad as they may seem when you're on the receiving end of one (in civil matters at any rate), and about how they are critical tools to any attorney's repertoire. Though they are used to gather information which may be critical to a case, there are three major downfalls, which I'll try to list using one word each (my challenge for the day): objections, contradictions, and money. Once again, I'm going to emphasize how these three disadvantages factor into the use of subpoenas in civil law as opposed to criminal law, with specific examples of how they have affected cases in this firm.
Objections to Subpoenas
Unfortunately, subpoenas for production of evidence (duces tecum) are more easily objected to than subpoenas which force someone to testify in court (ad testificandum), and the majority of subpoenas in family law cases (especially during discovery) are for production evidence. Companies may object to your subpoena(s). Granted, any state's rules of civil procedure contain guidelines as to when a party must comply with a subpoena, and guidelines as to what information the company can object to providing. Subpoenas only require the served party to respond within a prescribed time frame either with the documents/evidence/information requested, or with a response (which is typically the reason(s) why they object to providing the requested information). My favorite is "(Insert Party's Name Here) objects to the Subpoena to the extent that it seeks documents and information that is vague, ambiguous, overbroad, and unduly burdensome."
In our office, and pretty much every office, the subpoenas issued contain extremely specific requests for specific documents which we feel may contain information which can help our case. We ask for specifc documents such as "account statements" or "credit card application(s)", and even go so far as to include the full name, date of birth, and social security number of the person whose documents we are seeking. We do everything we can to be anything but "vague, ambiguous, overbroad, and unduly burdensome."
In short, one major disadvantage is that subpoenas may be objected to as opposed to responded to. If the party being subpoenaed has a legitimate claim as to why they should not respond with the information requested, then a court may not order them to comply.
Contradictory Information
Sometimes, subpoenas return documents which go against whatever it is we are trying to prove. For example, subpoenas sent to banks may show that they have disclosed everything on the financial disclosure form, and do not have any separate accounts that have not previously been mentioned. Though it seems to be a rare occurence, sometimes people are honest during the course of legal proceedings and subpoenas sometimes return information which supports this, and there's nothing that can really be done about it.
Subpoenas Can Turn Into $ubpoenas
Couldn't resist using the dollar sign as a substitute for the letter "S" on this one. More often than not, the subpoenas come back with a bill. Depending on how many subpoenas are issued in any given case, the amount of money spent on sending them out can add up very quickly. Companies in particular want to be paid for the time and energy their employee(s) invested in researching the subpoena, and preparing the documents that were requested.
One case in particular used up a good enough portion of the money in the business acount to piss more than a few people off. Paralegals were sending subpoenas to just about any company our client's wife ever spoke to, and most of the information they were seeking was frivilous and would not have proved much of anything that we didn't already know to be true. This cost the firm a lot of money that we probably shouldn't have been spending on one case, and was irritating to say the least.
Take Home Lessons
The main lessons here about subpoenas are simple: subpoenas are an essential tool to the legal profession, and can often result in the discovery of incredibly useful information; at the same time subpoenas can be denied, provide information that is the opposite of what you were hoping for, and cost money. Obviously the potential for positive results outweigh all of these consequences, as long as you don't get "subpoena-happy" and spend too much money on one case.
Objections to Subpoenas
Unfortunately, subpoenas for production of evidence (duces tecum) are more easily objected to than subpoenas which force someone to testify in court (ad testificandum), and the majority of subpoenas in family law cases (especially during discovery) are for production evidence. Companies may object to your subpoena(s). Granted, any state's rules of civil procedure contain guidelines as to when a party must comply with a subpoena, and guidelines as to what information the company can object to providing. Subpoenas only require the served party to respond within a prescribed time frame either with the documents/evidence/information requested, or with a response (which is typically the reason(s) why they object to providing the requested information). My favorite is "(Insert Party's Name Here) objects to the Subpoena to the extent that it seeks documents and information that is vague, ambiguous, overbroad, and unduly burdensome."
In our office, and pretty much every office, the subpoenas issued contain extremely specific requests for specific documents which we feel may contain information which can help our case. We ask for specifc documents such as "account statements" or "credit card application(s)", and even go so far as to include the full name, date of birth, and social security number of the person whose documents we are seeking. We do everything we can to be anything but "vague, ambiguous, overbroad, and unduly burdensome."
In short, one major disadvantage is that subpoenas may be objected to as opposed to responded to. If the party being subpoenaed has a legitimate claim as to why they should not respond with the information requested, then a court may not order them to comply.
Contradictory Information
Sometimes, subpoenas return documents which go against whatever it is we are trying to prove. For example, subpoenas sent to banks may show that they have disclosed everything on the financial disclosure form, and do not have any separate accounts that have not previously been mentioned. Though it seems to be a rare occurence, sometimes people are honest during the course of legal proceedings and subpoenas sometimes return information which supports this, and there's nothing that can really be done about it.
Subpoenas Can Turn Into $ubpoenas
Couldn't resist using the dollar sign as a substitute for the letter "S" on this one. More often than not, the subpoenas come back with a bill. Depending on how many subpoenas are issued in any given case, the amount of money spent on sending them out can add up very quickly. Companies in particular want to be paid for the time and energy their employee(s) invested in researching the subpoena, and preparing the documents that were requested.
One case in particular used up a good enough portion of the money in the business acount to piss more than a few people off. Paralegals were sending subpoenas to just about any company our client's wife ever spoke to, and most of the information they were seeking was frivilous and would not have proved much of anything that we didn't already know to be true. This cost the firm a lot of money that we probably shouldn't have been spending on one case, and was irritating to say the least.
Take Home Lessons
The main lessons here about subpoenas are simple: subpoenas are an essential tool to the legal profession, and can often result in the discovery of incredibly useful information; at the same time subpoenas can be denied, provide information that is the opposite of what you were hoping for, and cost money. Obviously the potential for positive results outweigh all of these consequences, as long as you don't get "subpoena-happy" and spend too much money on one case.
Monday, July 16, 2012
Subpoenas
Subpoenas as Most People See Them
We see it on shows like Law & Order or (my newly discovered TV obsession) Franklin & Bash at least once every couple of episodes:
Attorney: "Mr. John Doe?"
John Doe: "Yes?"
Attorney: "You're hearby ordered to appear in court (blah blah, hands over some folded papers)."
This is a classic, albeit dramatized, example of someone being served a subpoena. A subpoena, generally speaking, is a notice that someone receives when they have been ordered to appear in court. I feel that these TV shows' tendency to dramatize the legal process has assigned a negative stigma to a subpoena, and has contributed to many people feeling "intimidated" if being served one.
Further, these TV programs, particularly Law & Order, show the use of a subpoena in criminal matters, and the individual being served's testimony is crucial to the prosecution's case. Today, I am going to discuss the use of a subpoena in civil matters, and why it should not be viewed with such negative attitudes.
Two Main Types of Subpoenas
In civil matters, subpoenas are commonly issued for two reasons:
1. To compel a person or (more often) a business to produce documents necessary to disprove a claim being made by the opposing party. This is called a subpoena duces tecum, and is a subpoena for production of evidence. Generally, these types of subpoenas ask for a person to come to a law office on or before a specific date and time, with the documents requested. These subpoenas often provide the option for the documents to be faxed or mailed, in lieu of appearance.
2. This is different from a subpoena ad testificandum, which is the type of subpoena most commonly used on television, which requires the person served to testify orally in a court of law. Generally speaking, these types of subpoenas are not likely to provide the option for a sworn statement. After all, you can't cross-examine a piece of paper.
Use of a Subpoena in Family Law Matters
In family law, before a subpoena is even issued, both parties are asked to fill out financial disclosure forms in order to initially calculate how much money a party should pay in spousal support and/or child support. Basically, this is a chance for both parties to honestly and voluntarily disclose their finances in order for the court to accurately be able to issue a fair order for a party to pay support. Naturally, people think they are more cunning than they actually are, and thus "forget" to disclose accounts held in their own name (most likely at a different bank than any of those with whom a joint account account is held with their spouse) that their spouse does not know about. If we suspect this is the case, then this is the part in which subpoenas come out of our metaphorical playbook.
Subpoenas are most commonly issued to banks for production of financial statements. As mentioned above, an accurate financial portrait needs to be painted for both parties in order to ensure that the fair amount of support is paid to the party that needs it. Quite naturally, people want to pay the least amount of money possible, particularly to someone they are divorcing, and thus try and show that they have fewer assets and money available than is actually true.
One thing I have learned from working in a family law firmis this: Be honest, especially about finances. ATTORNEYS WILL FIND EVERYTHING (eventually). It's quite frankly gratifying when you suspect the opposing party of hiding finances, and receiving responses from subpoenas showing that they have a Wells Fargo checking account, or even a vacation home in Hawai'i (yes, people try and 'hide' houses and other property too) that our client never knew about, but most importantly, was not mentioned on the financial disclosure form.
Final Thoughts (for now)
Subpoenas are very useful tools in finding documents which we may not have known existed otherwise, and I would even go so far as to say that they may help keep parties honest in civil proceedings, and even help preserve the fairness in the legal process. If you work for a business and receive a subpoena to produce documents, don't look at it as a threat (you may still believe it to be an inconvenience and that's okay), but keep in mind that you are helping someone in need receive a fair judgment in court.
Now that the positive aspects of this critical element in law has been touched upon, in the interest of fairness we will discuss some of the downfalls in a future post. Please feel free to leave any questions or comments below!
We see it on shows like Law & Order or (my newly discovered TV obsession) Franklin & Bash at least once every couple of episodes:
Attorney: "Mr. John Doe?"
John Doe: "Yes?"
Attorney: "You're hearby ordered to appear in court (blah blah, hands over some folded papers)."
This is a classic, albeit dramatized, example of someone being served a subpoena. A subpoena, generally speaking, is a notice that someone receives when they have been ordered to appear in court. I feel that these TV shows' tendency to dramatize the legal process has assigned a negative stigma to a subpoena, and has contributed to many people feeling "intimidated" if being served one.
Further, these TV programs, particularly Law & Order, show the use of a subpoena in criminal matters, and the individual being served's testimony is crucial to the prosecution's case. Today, I am going to discuss the use of a subpoena in civil matters, and why it should not be viewed with such negative attitudes.
Two Main Types of Subpoenas
In civil matters, subpoenas are commonly issued for two reasons:
1. To compel a person or (more often) a business to produce documents necessary to disprove a claim being made by the opposing party. This is called a subpoena duces tecum, and is a subpoena for production of evidence. Generally, these types of subpoenas ask for a person to come to a law office on or before a specific date and time, with the documents requested. These subpoenas often provide the option for the documents to be faxed or mailed, in lieu of appearance.
2. This is different from a subpoena ad testificandum, which is the type of subpoena most commonly used on television, which requires the person served to testify orally in a court of law. Generally speaking, these types of subpoenas are not likely to provide the option for a sworn statement. After all, you can't cross-examine a piece of paper.
Use of a Subpoena in Family Law Matters
In family law, before a subpoena is even issued, both parties are asked to fill out financial disclosure forms in order to initially calculate how much money a party should pay in spousal support and/or child support. Basically, this is a chance for both parties to honestly and voluntarily disclose their finances in order for the court to accurately be able to issue a fair order for a party to pay support. Naturally, people think they are more cunning than they actually are, and thus "forget" to disclose accounts held in their own name (most likely at a different bank than any of those with whom a joint account account is held with their spouse) that their spouse does not know about. If we suspect this is the case, then this is the part in which subpoenas come out of our metaphorical playbook.
Subpoenas are most commonly issued to banks for production of financial statements. As mentioned above, an accurate financial portrait needs to be painted for both parties in order to ensure that the fair amount of support is paid to the party that needs it. Quite naturally, people want to pay the least amount of money possible, particularly to someone they are divorcing, and thus try and show that they have fewer assets and money available than is actually true.
One thing I have learned from working in a family law firmis this: Be honest, especially about finances. ATTORNEYS WILL FIND EVERYTHING (eventually). It's quite frankly gratifying when you suspect the opposing party of hiding finances, and receiving responses from subpoenas showing that they have a Wells Fargo checking account, or even a vacation home in Hawai'i (yes, people try and 'hide' houses and other property too) that our client never knew about, but most importantly, was not mentioned on the financial disclosure form.
Final Thoughts (for now)
Subpoenas are very useful tools in finding documents which we may not have known existed otherwise, and I would even go so far as to say that they may help keep parties honest in civil proceedings, and even help preserve the fairness in the legal process. If you work for a business and receive a subpoena to produce documents, don't look at it as a threat (you may still believe it to be an inconvenience and that's okay), but keep in mind that you are helping someone in need receive a fair judgment in court.
Now that the positive aspects of this critical element in law has been touched upon, in the interest of fairness we will discuss some of the downfalls in a future post. Please feel free to leave any questions or comments below!
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