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!
Thursday, July 12, 2012
Client Pet Peeves...One Client Who Does Them All
Don't get me wrong, I love this job. I love the practical experience I am gaining not only in terms of actually getting things written and filed, legal research, and trial preparation. Even more so (and many of my friends can attest to the fact I need a little help in this department), I enjoy the experience I am getting having to deal with people that I would not normally associate with, but have to because they are clients.
That being said, I can deal with a lot of annoying things they do to a point, whether it be panicking over a situation that does not warrant panicking, or even trying to take over their own case and do the job they are paying this office to do. One thing I cannot stand however, are the clients who constantly call and assume that something is always going on with their case.
Basically, events and filing of documents trigger responses and filing of more documents. However, until these things are done, we are unable to do anything. For example, how can write an opposition to a motion that has not yet been filed or given to us (even though we probably know it might be coming)?
One particular client has called three times in the past two weeks about a number of things:
1.) "The IRS took all of the money out of my tax return."
- The attorneys in this office told you that it was probably going to happen given your
circumstances, so why are you calling about this? You were given fair warning, and
unfortunately we cannot help you. The IRS is a body of the FEDERAL GOVERNMENT,
and we are merely a family law firm in Las Vegas, Nevada. We aren't going to be able to
"force" the IRS to return this money, particularly because it was taken with just cause.
Please stop assuming that because they are attorneys, they are like God and can do
anything you ask, especially when it involves the Federal Government.
2.) "Please have my lawyer call me back." "Ok ma'am, what's this regarding?" "I just need to talk to
him."
- Unfortunately, people in this office are very busy, and do not want to be bothered with
frivilous issues. In order to cut back on these issues which can be resolved without the
lawyer having to contact you themselves, the information often gets passed on to me or
one of the other assistants, and we relay the message. Only if something big happens,
and it is absolutely imperative that an attorney speak to you (meaning you require legal
advice, which I am prohibited from giving you), will they call you back personally.
That being said, this requires you to give us a reason as to why you are calling. The
other assistants and I are still bound by attorney-client confidentiality, and are not going to
share details of your case with others who do not need to know. So please tell us exactly
what it is you need help with in order to resolve the issue swiftly.
3.) "I have called three times, and the attorney has not called me back. But anyway, I got a letter
from my ex-spouse, and he said he is taking my child for one month on this date."
- This had the potential to be an issue of concern that might warrant talking to an attorney.
However, after reviewing the decree of divorce, the "Visitation" section notes that the
spouse without primary physical custody is allowed to take the child for a period of one
month over summer vacation. Now, since you are alleging abuse, we have filed the
appropriate motion with court, and will be heard at the next hearing, which so conveniently
happens to be before the day your spouse is coming to take your child. Until we go in and
tell the judge why we have filed the motion, nothing can be done. We will see you then.
The second of these three minor annoyances is probably the most irksome. I understand that some people may not feel comfortable sharing certain details with assistants, but I at least need to be able to judge how urgent the situation is. Calling in a panicked voice does not help either, I listen to the content of your message, not the tone of your voice.
I am not one to complain about work, but when these three things happened, I felt I had to share them. Hopefully this will help anyone reading this answer questions as to why your attorney may not get back to you immediately, or even within the same day. The short answer I can give you for that is simple: you are not the only one going through a divorce or custody battle. Some things need to be done in the office right away, and unfortunately have precedent over your case. I am sorry if this upsets you, but I do things in the order I am told.
P.S. Please do not call back cursing at me in Spanish, I took 4 years in high school and have friends that speak it. I know exactly what you called me, and it wasn't very polite. Gracias.
That being said, I can deal with a lot of annoying things they do to a point, whether it be panicking over a situation that does not warrant panicking, or even trying to take over their own case and do the job they are paying this office to do. One thing I cannot stand however, are the clients who constantly call and assume that something is always going on with their case.
Basically, events and filing of documents trigger responses and filing of more documents. However, until these things are done, we are unable to do anything. For example, how can write an opposition to a motion that has not yet been filed or given to us (even though we probably know it might be coming)?
One particular client has called three times in the past two weeks about a number of things:
1.) "The IRS took all of the money out of my tax return."
- The attorneys in this office told you that it was probably going to happen given your
circumstances, so why are you calling about this? You were given fair warning, and
unfortunately we cannot help you. The IRS is a body of the FEDERAL GOVERNMENT,
and we are merely a family law firm in Las Vegas, Nevada. We aren't going to be able to
"force" the IRS to return this money, particularly because it was taken with just cause.
Please stop assuming that because they are attorneys, they are like God and can do
anything you ask, especially when it involves the Federal Government.
2.) "Please have my lawyer call me back." "Ok ma'am, what's this regarding?" "I just need to talk to
him."
- Unfortunately, people in this office are very busy, and do not want to be bothered with
frivilous issues. In order to cut back on these issues which can be resolved without the
lawyer having to contact you themselves, the information often gets passed on to me or
one of the other assistants, and we relay the message. Only if something big happens,
and it is absolutely imperative that an attorney speak to you (meaning you require legal
advice, which I am prohibited from giving you), will they call you back personally.
That being said, this requires you to give us a reason as to why you are calling. The
other assistants and I are still bound by attorney-client confidentiality, and are not going to
share details of your case with others who do not need to know. So please tell us exactly
what it is you need help with in order to resolve the issue swiftly.
3.) "I have called three times, and the attorney has not called me back. But anyway, I got a letter
from my ex-spouse, and he said he is taking my child for one month on this date."
- This had the potential to be an issue of concern that might warrant talking to an attorney.
However, after reviewing the decree of divorce, the "Visitation" section notes that the
spouse without primary physical custody is allowed to take the child for a period of one
month over summer vacation. Now, since you are alleging abuse, we have filed the
appropriate motion with court, and will be heard at the next hearing, which so conveniently
happens to be before the day your spouse is coming to take your child. Until we go in and
tell the judge why we have filed the motion, nothing can be done. We will see you then.
The second of these three minor annoyances is probably the most irksome. I understand that some people may not feel comfortable sharing certain details with assistants, but I at least need to be able to judge how urgent the situation is. Calling in a panicked voice does not help either, I listen to the content of your message, not the tone of your voice.
I am not one to complain about work, but when these three things happened, I felt I had to share them. Hopefully this will help anyone reading this answer questions as to why your attorney may not get back to you immediately, or even within the same day. The short answer I can give you for that is simple: you are not the only one going through a divorce or custody battle. Some things need to be done in the office right away, and unfortunately have precedent over your case. I am sorry if this upsets you, but I do things in the order I am told.
P.S. Please do not call back cursing at me in Spanish, I took 4 years in high school and have friends that speak it. I know exactly what you called me, and it wasn't very polite. Gracias.
Tuesday, July 10, 2012
Research In the Courtroom
When I say "research" in this sense, I am not referring to pouring over volume after volume of statutes and case law in a law library. I'm referring to what is known as "extrinsic research," which is any supplemental research conducted going beyond the scope of testimony, statements, statutes, or case law mentioned in the courtroom. According to Blog Law Online, the repercussions of extrinsic research differ depending on your role in a legal proceeding.
If you are a juror, you are never allowed to conduct extrinsic research and must base judgment solely upon evidence presented during the trial. That being said, it is more acceptable for judges to use extrinisc research when rendering their opinions in non-juried trials. This sort of makes sense, considering a judge has the legal knowledge requisite to forming a more complete opinion based upon not only evidence presented to him, but upon his own research and logically drawn conclusions. People seem to have mixed feelings about judges doing so, particularly because a judge in a non-juried trial serves the same function as the jury. He is to be convinced that one side is right and the other is wrong, the only difference being the fact that there is only one person who needs convincing.
Personally, I see that there may be some benefits to allowing extrinsic research. It is possible that a little extra research may help make arguments less one-sided by providing valuable information that was either left out, or slightly misrepresented by the attorney presenting it. A good example would be the use of results gathered from gas chromotography technology which is commonly admitted as evidence in cases involving DUI's. There are a number of factors (listed here) which can contribute to a descrepancy about how reliable such a test is. Needless to say, the State prosecuting a DUI case will present this gas chromotography test as a fullproof, reliable method of testing blood alcohol content, when in fact its reliability may have been negatively affected by any of those factors mentioned on the Arizona Criminal Defense Attorney blog.
Though some may see the above mentioned example of extrinsic research as a way of making a trial-by-peers more fair, I also see the disadvantages presented by jurors doing their own research. If we accept the fact that jurors do not possess the training that attorneys and judges have in terms of drawing logical conclusions from various sources, jurors may be swayed incorrectly by a source that it less than reliable. Further, even if the source IS reliable, there is an increase in the chance of a trial resulting in a hung jury, since each juror drew their own conclusion, based upon their own research.
As a result, I feel that it is absolutely more acceptable for a judge in a non-juried trial to conduct his own research. A judge will more than likely to select a reliable source for any extrinsic research, and his opinion would be the only one that matters, there would be no hung jury. Lastly, the legal training to draw logical conclusions from facts presented that "necessarily follow" goes far in justifying the use of extrinsic research in non-juried trials.
If you are a juror, you are never allowed to conduct extrinsic research and must base judgment solely upon evidence presented during the trial. That being said, it is more acceptable for judges to use extrinisc research when rendering their opinions in non-juried trials. This sort of makes sense, considering a judge has the legal knowledge requisite to forming a more complete opinion based upon not only evidence presented to him, but upon his own research and logically drawn conclusions. People seem to have mixed feelings about judges doing so, particularly because a judge in a non-juried trial serves the same function as the jury. He is to be convinced that one side is right and the other is wrong, the only difference being the fact that there is only one person who needs convincing.
Personally, I see that there may be some benefits to allowing extrinsic research. It is possible that a little extra research may help make arguments less one-sided by providing valuable information that was either left out, or slightly misrepresented by the attorney presenting it. A good example would be the use of results gathered from gas chromotography technology which is commonly admitted as evidence in cases involving DUI's. There are a number of factors (listed here) which can contribute to a descrepancy about how reliable such a test is. Needless to say, the State prosecuting a DUI case will present this gas chromotography test as a fullproof, reliable method of testing blood alcohol content, when in fact its reliability may have been negatively affected by any of those factors mentioned on the Arizona Criminal Defense Attorney blog.
Though some may see the above mentioned example of extrinsic research as a way of making a trial-by-peers more fair, I also see the disadvantages presented by jurors doing their own research. If we accept the fact that jurors do not possess the training that attorneys and judges have in terms of drawing logical conclusions from various sources, jurors may be swayed incorrectly by a source that it less than reliable. Further, even if the source IS reliable, there is an increase in the chance of a trial resulting in a hung jury, since each juror drew their own conclusion, based upon their own research.
As a result, I feel that it is absolutely more acceptable for a judge in a non-juried trial to conduct his own research. A judge will more than likely to select a reliable source for any extrinsic research, and his opinion would be the only one that matters, there would be no hung jury. Lastly, the legal training to draw logical conclusions from facts presented that "necessarily follow" goes far in justifying the use of extrinsic research in non-juried trials.
Monday, July 9, 2012
Treat Others How You Want to be Treated
I read an interesting post the other day on a blog which I frequent, that discussed some of the often missed pragmatic aspects of practicing law. It talked about how law school generally teaches about 80% theory and 20% practice, however this 20% fails to address practical problems with the most prominent example having to do with what is generally viewed as 'secretarial' or 'paralegal' work. Though I am not an attorney (let alone even in law school yet), this particular post made me consider two 'rules,' if you will, that I definitely plan on abiding by when I become one. Which brings me to my first point.
1. Hire (and respect the services of) a skilled secretary or paralegal.
Right now, I have the benefit of being asked to perform many of these duties, and am gaining a ton of practical knowledge which many attorneys tell me they simply do not teach in law school. Though these tasks tend to be the work of secretaries and paralegals, if they are not completed both correctly and on time, the law firm essentially ceases to function properly. As a result, I have learned that it does not help to be condescending or overly critical (emphasis on OVERLY, being critical is part of the profession) of work completed by secretaries or paralegals. They are the gears which keep the law firm clock running smoothly, and on schedule.
While this first principle was implied by that particular post, I noticed that this second important principle seems to have been overlooked.
2. Treat courtroom staff like they are the Second Coming of Christ Himself!
Consider this hypothetical situation: You are an Assistant District Attorney in a major metropolitan area, where crime is more or less a way of life. You may have a case load of close to (perhaps even a little over) 100 cases. Though you are accountable for your 100 cases, the courtroom staff is accountable for your 100 cases, plus EVERYONE ELSE'S 100 cases, and must handle pleadings from both Plaintiff and Defendant. Moral of the story? They don't have time for/do not want to put up with your attitude and crap. While watching a certain individual we can refer to as 'X' attempt to file papers, she had about her a certain noticeably negative attitude. By the end of the day, the court staff threatened to call the Marshall's office, and it took forever for her to get assistance, and get the job done. Having learned from this, calling everyone 'sir' or 'ma'am,' and thanking them for even the smallest bit of advice has gone an awfully long way for me, and I often find myself done filing within an hour (wait time included). Be polite and respectful, and the courthouse staff will be more than happy to answer your questions and give you the help you need.
In short, the so-called 'golden rule' rings true in the legal field as well. Treat others the way you want to be treated, and it will keep the whole legal process moving much more smoothly not only for yourself, but others who appreciate your courtesy, as well.
1. Hire (and respect the services of) a skilled secretary or paralegal.
Right now, I have the benefit of being asked to perform many of these duties, and am gaining a ton of practical knowledge which many attorneys tell me they simply do not teach in law school. Though these tasks tend to be the work of secretaries and paralegals, if they are not completed both correctly and on time, the law firm essentially ceases to function properly. As a result, I have learned that it does not help to be condescending or overly critical (emphasis on OVERLY, being critical is part of the profession) of work completed by secretaries or paralegals. They are the gears which keep the law firm clock running smoothly, and on schedule.
While this first principle was implied by that particular post, I noticed that this second important principle seems to have been overlooked.
2. Treat courtroom staff like they are the Second Coming of Christ Himself!
Consider this hypothetical situation: You are an Assistant District Attorney in a major metropolitan area, where crime is more or less a way of life. You may have a case load of close to (perhaps even a little over) 100 cases. Though you are accountable for your 100 cases, the courtroom staff is accountable for your 100 cases, plus EVERYONE ELSE'S 100 cases, and must handle pleadings from both Plaintiff and Defendant. Moral of the story? They don't have time for/do not want to put up with your attitude and crap. While watching a certain individual we can refer to as 'X' attempt to file papers, she had about her a certain noticeably negative attitude. By the end of the day, the court staff threatened to call the Marshall's office, and it took forever for her to get assistance, and get the job done. Having learned from this, calling everyone 'sir' or 'ma'am,' and thanking them for even the smallest bit of advice has gone an awfully long way for me, and I often find myself done filing within an hour (wait time included). Be polite and respectful, and the courthouse staff will be more than happy to answer your questions and give you the help you need.
In short, the so-called 'golden rule' rings true in the legal field as well. Treat others the way you want to be treated, and it will keep the whole legal process moving much more smoothly not only for yourself, but others who appreciate your courtesy, as well.
Friday, July 6, 2012
First Motion Written From Scratch!
Yesterday, I put the finishing touches on a motion that I decided to take a crack at writing over the holiday. I enjoyed it, to be completely honest. Most people know that I enjoy writing in general, however legal writing is a little more challenging for me personally. Probably because of the fact that I like to "sound smart," so to speak, and the fact of the matter is that judges are very educated, and don't care/are unlikely to be impressed by the fact that you can use "big words." I was always taught legal writing needs to be more direct and too the point.
As difficult as it was to not give in to the temptation of using some of my favorite multi-syllable adjectives, the final product came out pretty well. The attorney who it was for said it was good, she added a few things (since this is after all still her case, and the picture she's trying to paint in the judges mind needs to be accurately portrayed), but most importantly, I found some satisfaction in the fact that out of all the laws I could've cited in the legal analysis, I selected the right one.
Definitely look forward to writing more of these in the future.
P.S. It turns out you can title the motion anything you want! I had some issues with that since I know there are commonly used motions (not only in Nevada, but other jurisdictions as well), and I was under the impression that this motion had to fit the mold of one that already existed. Meaning, if I want to file a "Motion For Opposing Counsel To Remove the Stick From Their Ass," I can, lol.
As difficult as it was to not give in to the temptation of using some of my favorite multi-syllable adjectives, the final product came out pretty well. The attorney who it was for said it was good, she added a few things (since this is after all still her case, and the picture she's trying to paint in the judges mind needs to be accurately portrayed), but most importantly, I found some satisfaction in the fact that out of all the laws I could've cited in the legal analysis, I selected the right one.
Definitely look forward to writing more of these in the future.
P.S. It turns out you can title the motion anything you want! I had some issues with that since I know there are commonly used motions (not only in Nevada, but other jurisdictions as well), and I was under the impression that this motion had to fit the mold of one that already existed. Meaning, if I want to file a "Motion For Opposing Counsel To Remove the Stick From Their Ass," I can, lol.
Tuesday, July 3, 2012
LSAT Results...
Yesterday, the results for the June 2012 Law School Admissions Test (LSAT) were released via e-mail. I won't post my score on here, but it was definitely much better than what I was hoping for! The score I received was good enough so that I don't have to cross any potential schools off of my list, which is always a good thing. I may take it one more time in October, but it's up in the air as of now.
Special thanks to my mom and dad for having faith in me to do well on the test, get me help when I needed it, and most importantly, give me the space in the time leading up to the test to study and get myself ready. Also, a big "thank you" to all of my friends here in Las Vegas and in Iowa for all of the encouragment and positive support during this whole process!
Special thanks to my mom and dad for having faith in me to do well on the test, get me help when I needed it, and most importantly, give me the space in the time leading up to the test to study and get myself ready. Also, a big "thank you" to all of my friends here in Las Vegas and in Iowa for all of the encouragment and positive support during this whole process!
Monday, July 2, 2012
A bit about the law firm...
For those of you who don't know, this summer I began working at a law firm in my home of Las Vegas, Nevada. The firm specializes in family law, which is very complicated and has a tendency to get very nasty to say the least. I would like to take a moment to discuss a few general things that I have encountered in my first month of work here.
Generally speaking, a divorce is not looked upon as a positive event. Granted, there are all-too-frequent occasions in which a divorce is the most positive outcome for a party, with particular regard to instances of spousal or child abuse. With the exclusion of those unfortunate circumstances, the most painless type of proceeding one can hope for is an uncontested divorce. This generally results in a straightforward proceeding, where any community property (if the divorce is occuring in a state which recognizes community property) is divided equally, both parties may share debt incurred on joint accounts but are responsible for any debt incurred on accounts held in their own name, the (ex)-wife is able to restore her maiden name, a visitation schedule is mutually agreed upon if any minor children are involved, etc. Unfortunately, most marriages are not so easily dissolved, and many people associated with the family court system (myself included) feel that the system tends to favor women. I recognize that it is a natural part of our country's political and social culture to have a tendency to protect women, particularly in a legal sense. It is however, very disheartening to see that some women use this protection to their advantage, especially in divorce proceedings.
I have had the opportunity to speak to (and work with) several male clients already in my short time working here, and none of them (one small fellow in particular) seem like they would ever lay a hand on a woman, or give their child more than a well-deserved spanking. However, their wives use the protection of the law to their advantage, and these men have to fight their asses off in court in order to even be granted supervised visits with their children. Of course, the judge is not allowed to make character judgments, and instead must take the conservative approach by assuming the woman's allegations may be true, and the children or spouse must be shielded from the abusive parent or partner. It's just shameful to see the court system, which is taylored to protect women (some of whome who actually do need it), manipulated just to squeeze additional spousal and/or child support out of their ex-spouse, and even obtain sole custody of minor children.
Though the family court system is engineered to protect women, I feel the implications of a family court system without safeguards for women would be far more detrimental than the status quo. However, surely something needs to be done about women with malicious intent who work this system with complete disregard to the man's reputation and parental rights.
Generally speaking, a divorce is not looked upon as a positive event. Granted, there are all-too-frequent occasions in which a divorce is the most positive outcome for a party, with particular regard to instances of spousal or child abuse. With the exclusion of those unfortunate circumstances, the most painless type of proceeding one can hope for is an uncontested divorce. This generally results in a straightforward proceeding, where any community property (if the divorce is occuring in a state which recognizes community property) is divided equally, both parties may share debt incurred on joint accounts but are responsible for any debt incurred on accounts held in their own name, the (ex)-wife is able to restore her maiden name, a visitation schedule is mutually agreed upon if any minor children are involved, etc. Unfortunately, most marriages are not so easily dissolved, and many people associated with the family court system (myself included) feel that the system tends to favor women. I recognize that it is a natural part of our country's political and social culture to have a tendency to protect women, particularly in a legal sense. It is however, very disheartening to see that some women use this protection to their advantage, especially in divorce proceedings.
I have had the opportunity to speak to (and work with) several male clients already in my short time working here, and none of them (one small fellow in particular) seem like they would ever lay a hand on a woman, or give their child more than a well-deserved spanking. However, their wives use the protection of the law to their advantage, and these men have to fight their asses off in court in order to even be granted supervised visits with their children. Of course, the judge is not allowed to make character judgments, and instead must take the conservative approach by assuming the woman's allegations may be true, and the children or spouse must be shielded from the abusive parent or partner. It's just shameful to see the court system, which is taylored to protect women (some of whome who actually do need it), manipulated just to squeeze additional spousal and/or child support out of their ex-spouse, and even obtain sole custody of minor children.
Though the family court system is engineered to protect women, I feel the implications of a family court system without safeguards for women would be far more detrimental than the status quo. However, surely something needs to be done about women with malicious intent who work this system with complete disregard to the man's reputation and parental rights.
Thoughts on the Affordable Care Act (Obama Care)
Needless to say, this is a hot topic in the national news and I am yet to offer my perspective on any of the social network sites I am a part of, primarily due to the fact that people tend to get far too emotionally tied up for a number of reasons, whether it have to do with loyalty to a political party or maybe even because they simply are not my biggest fan. Either way, I prefer to look at most things through a legal perspective, and I have a pretty rudimentary outlook on the Affordable Care Act (ACA).
To put it simply, I feel that the Supreme Court improperly exercised its authority when it designated what is, for all intents and purposes, a "penalty" to be a "tax." The purported "tax" that is collected from those who do not purchase health insurance is inherently a penalty, and has been referred to as such by members of both the Legislative and Executive branches. However, this penalty is collected through the Internal Revenue Service, and was thus considered a tax by the Court, which falls under the taxing authority granted to Congress by Article I, Section 8 of the Constitution. It certainly seems that the issue of intent did not play too big of a role in the Justices' decision, since no proponents of the ACA have tried to disguise the fact that this "tax" is clearly intended to penalize Americans who are taking a "free ride" on the current health care system.
I won't go so far as to say that we are taking steps to becoming a socialist nation, however I feel that there are severe implications that may arise from this decision since it certainly expands Congress' authority with particular regard to its power to tax. What may arise from this landmark decision remains to be seen.
Lastly, arguably the most surprising aspect of this decision was Chief Justice John Roberts casting his vote with the liberal majority. Though this is a bit of a stretch, I find it possible that his vote may have been in exchange for Justice Sonia Sotomayor's unprecedented vote in Arizona v. United States which was critical due to Justice Elena Kagan's recusing herself from the opinion. I know it's a stretch coming from a pretty openly conservative individual, but I would love to hear everyone's thoughts both on the decision, and about why the Chief Justice voted the way he did!
To put it simply, I feel that the Supreme Court improperly exercised its authority when it designated what is, for all intents and purposes, a "penalty" to be a "tax." The purported "tax" that is collected from those who do not purchase health insurance is inherently a penalty, and has been referred to as such by members of both the Legislative and Executive branches. However, this penalty is collected through the Internal Revenue Service, and was thus considered a tax by the Court, which falls under the taxing authority granted to Congress by Article I, Section 8 of the Constitution. It certainly seems that the issue of intent did not play too big of a role in the Justices' decision, since no proponents of the ACA have tried to disguise the fact that this "tax" is clearly intended to penalize Americans who are taking a "free ride" on the current health care system.
I won't go so far as to say that we are taking steps to becoming a socialist nation, however I feel that there are severe implications that may arise from this decision since it certainly expands Congress' authority with particular regard to its power to tax. What may arise from this landmark decision remains to be seen.
Lastly, arguably the most surprising aspect of this decision was Chief Justice John Roberts casting his vote with the liberal majority. Though this is a bit of a stretch, I find it possible that his vote may have been in exchange for Justice Sonia Sotomayor's unprecedented vote in Arizona v. United States which was critical due to Justice Elena Kagan's recusing herself from the opinion. I know it's a stretch coming from a pretty openly conservative individual, but I would love to hear everyone's thoughts both on the decision, and about why the Chief Justice voted the way he did!
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