Wednesday, December 2, 2009

Google's Entry into Legal Research

Interesting news this week for small law offices who can't afford Lexis or Westlaw. Google released a legal research web site. You can access it via their Google Scholar search engine. Just to experiment, I decided to use it one day in parallel with Lexis on several research topics. I found that it consistently returned the same results as Lexis. The next day, I decided to use it to do all the research for the day just to see what it felt like.

Turns out I really like it, with a couple of provisions about how to use it. First, the default page searches all case law from any state or federal court in the country. Obviously, that isn't all that useful since you have to wade through a lot of cases that have minimal interest. The solution to that is simple - always use the Advanced Search page. That page lets you specify what states you want to search from or whether you want to search Federal Courts.

Missing is the ability to search combinations of federal courts and state courts. For example, you can't search for all Sixth Circuit and Tennessee state cases. Most likely this is because they don't have the federal cases broken out by circuit. You also can't search for only Supreme Court cases or only cases from specialized courts such as bankruptcy (bankruptcy cases are there, they are just lumped in with federal).

Also missing is linking cases together by topic like the West keynote system or the Lexis headnote system. In fact, all of the analysis material commonly found on the paid services is missing.

On the bright side, there is a citation service that provides you with lists of cases that cite the case you are reading. It's pretty bare bones, and the cases aren't sorted as those that are favorable, etc. And speaking of sorting, I couldn't find any way of sorting the results from whatever default order they initially appear. It would be nice to be able to sort them by date, then by court.

Still, Google has done a creditable job of providing a free legal research tool. It's close to something you could use to replace Lexis or Westlaw. If they will accept some feedback from the legal community, they could make Lexis and West sit up and take notice.


Back After (Lengthy) Absence

I am back to blogging after a lengthy absence caused by being woefully overworked in my practice as well as dealing with some family emergency issues. We're well into U.S. Supreme Court season and I have some comments to make on pending cases and decisions. I hope to get back to posting at least a couple of times a week.


Tuesday, July 21, 2009

Arbitration in Consumer Contracts

I have had a long interest in the issue of whether arbitration should be compelled when the arbitration agreement is simply a part of the boilerplate in a contract for consumer goods or services. The Ohio Supreme Court has recently held that such contracts must be enforced, even when a specific statute grants the right to proceed in a class action or as a private attorney general. The case was Hayes v. Oakridge Home, Slip Opinion No. 2009-Ohio-2054.

Ohio is one of the few states that have gone this way. Most states have held that these arbitration agreements are void as against public policy. For example, the National Law Journal reports that Massachusetts recently held arbitration clauses to be be void as against public policy. Read that article here.

To Blog of Legal Times (BLT) reports today that The National Arbitration Forum has agreed in a settlement with the Attorney General of Minnesota to get out of the consumer arbitration business. You can read that article here.

When I read the article I actually had a good laugh at this quote:

“Until Congress resolves the legal and legislative uncertainty, the cost is simply too high for users and providers of consumer arbitration,” he said.

Until then, Kelly warned, “The consequence to American consumers is that there will be no meaningful alternative to costly and unpredictable litigation.”

He means, I guess, that the consumer should avoid "unpredictable" litigation over the "predictable" pro-business, anti-consumer award that typically comes out of consumer arbitrations.

Here's the thing. Consumers can't afford to litigate small claims. Lawyers won't handle them. Take a look at the typical FDCPA claim, in which you are only going after the statutory damages of $1,000.00. Lawyers can't afford to take on a case that is only going to bring in a couple hundred in legal fees. The only way the consumer has any kind of redress is if he can aggregate his claims with the claims of hundreds, or thousands, of others in a class action. And the only way to prevent the business from continuing the practice that is in violation of law is to obtain injunctive relief by suing as a private attorney general.

Ohio has closed that door. Perhaps, as the article suggest, Congress may overturn that with a well crafted statute.


Wednesday, June 17, 2009


My client in the so-called "murder for hire" case that was featured on Nancy Grace a year or so ago entered a no contest plea this week. She will serve 15 days in the county jail and can serve the time on weekends. Pretty good outcome considering that she could have received 25 years in prison if found guilty as charged.

There must have been a reporter in the courtroom since the entire plea exchange with the judge was printed up in the paper this morning. They got it correct for the most part, including the part where the DA credited the motions I had filed as being the reason why they were giving such a good deal. He said they were "not without merit."

In any event, my client in this case got treated roughly in the media when the case first began. I was not her lawyer at that point, she changed to me right after the preliminary hearing. If I had been a publicity seeking hound I could have played this one for all it was worth, but I value my privacy and that makes me value hers just as well.

Still, it would have been nice to tangle with Nancy Grace.


Sunday, June 14, 2009

Traffic Cameras

Callers to my radio show continue to be intrigued by the issue of cameras installed at traffic lights and intersections so that you can be mailed a ticket for any infraction. A local city. Mt. Juliet, is considering installing them.

I happened to wonder, just the other day, exactly how the photo could be admitted. After all, in order to admit a photograph, you have to elicit testimony that it accurately depicts the conditions at the time it was taken. In the case of an automated traffic camera, who would authenticate it? No one is present when it was taken and the driver can refuse to testify.

Here is what I imagine is the case. Most cities, and states, consider violation of the traffic laws to be civil, not criminal, in nature. I expect that they will argue that the rules of evidence don't apply to the proceedings to enforce infractions caught on camera.

I don't see that the issue has been litigated in Tennessee and I haven't looked elsewhere. Perhaps someday a case will present itself and I can raise the issue (and the client will fund an appeal). Until then, it makes for interesting conversation amongst us lawyers.


Monday, June 8, 2009

Supreme Court Requires Recusal in Campaign Donations Case

The U.S. Supreme Court just ruled in the case of Caperton v. A.T. Massey Coal Company that a judge is required to recuse himself in instances where a litigant made substantial contributions to his election campaign.

In a scenario straight of of Grisham's "The Appeal" the A.T. Massey coal company, who lost a jury trial, made $3 million in campaign contributions to someone running for a seat on the West Virginia Supreme Court of Appeals. Given that much money, the outcome of the campaign was a foregone conclusion and their candidate won.

When the case arrived at the appellate court, the newly elected judge refused to step aside and then joined the majority in overturning the lower court's decision. Today, the U.S. Supreme Court said that this action violates the due process clause. The Court stated:

There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory.

Interestingly enough, the decision was only 5-4, indicating that four justices apparently think it's OK to buy a judge. Those four are Roberts, Scalia, Thomas and Alito.


Saturday, May 16, 2009

Defining Your Case Through News Article Comments

Every trial practice class we take tells us that we have to devise a "story" of our case. The story is what we teach the jury (or judge) as we try the case. Each witness and exhibit builds our story to lead the jury to believe in its truth and, ultimately, to rule on our favor.

But how do we know that our story will resonate with a jury? That's always been more of an art than a science. We tell the story to staff members, other lawyers - anyone who will listen. If we have a client with a little money we might do a focus group. If we're lucky enough to have a client with a lot of money (and an important case) we might even hire a jury consultant to help us craft both the story and to develop a profile of the "ideal" juror. Still, we never know until the verdict comes back.

Here's another thing to add to our toolbox - one that won't cost your client a cent. Most newspapers and TV stations are now posting their articles online. And most of the online web sites permit readers to post comments telling what they think of the story.

If an article is written about your case, pay close attention to the readers' comments. They come from the general public - the same general public that makes up your jury pool. I am undecided about the ethics of posting comments of your own or otherwise interacting with the readers - I lean toward it being unethical but haven't researched the issue - but there is no harm in looking at what people say and then crafting your ultimate case presentation accordingly.

In fact, I'll go out on a limb and say that, sometime in the next ten years, we will see an attorney somewhere held liable in malpractice for presenting a case without taking readers' comments into account.


Sunday, April 26, 2009

Interesting Fee Agreement

I saw a post on one of the mail lists I follow regarding an interesting fee arrangement for criminal cases. The attorney reports that his fee agreement only covers pre-trial matters and has a clause that provides that any case that goes to trial will carry an additional fee to be negotiated later.

I can see the issue he is trying to address - the situation where you charge $x and then enter a guilty plea very early in the process so that you don't have enough hours in the case to justify $x. But I would worry that, since the client knows that he will have to pay more if he maintains a not guilty plea and goes to trial he will feel great pressure to take a deal even if it would be better for him to go to trial.

It is tempting to adopt the incremental fee approach and I am going to look closely at the issue. If anyone has any thoughts on the topic I would love to hear them.


Saturday, April 25, 2009

The Supreme Court Gives and Tennessee Tries to Take Away

The U.S. Supreme Court handed down a decision last week that upheld rights under the Fourth Amendment. Now Tennessee is considering a bill that would eliminate the exclusionary rule that prevents evidence seized in violation of your Fourth Amendment rights from being used against you.

Now, I think that most of us can agree that such a bill would be subject to constitutional attack but you still have to wonder what the legislature is thinking. Why is it considered so important to obtain convictions that they are willing to do it at any price? Why do they think that it is ok to condone breaking the law (the Fourth Amendment) in order to enforce the law? And since most of these cases involve such serious crimes as simple possession of marijuana or some other drug is it really that important to take the suspect off the street that we would effectively abolish the Fourth Amendment?

I really don't get it. I guess we have been lucky here in this country not to live under an oppressive government. So lucky that we have forgotten that the basic protections that are provided by the constitution are the reason why we haven't lived under an oppressive government.

The bill will likely fail, but why would they even try?


Wednesday, April 22, 2009

Just When You Start to Lose Hope!

Just when you start to think it's time to leave the country the U.S. Supreme Court makes a decision that actually upholds our constitutional rights. In Gant v. Arizona, the Court ruled that officers may only search a vehicle incident to an arrest if the vehicle is still within the reach of the arrestee at the time of the search.

Since the entire rationale of the search incident to arrest doctrine that was established by the Court almost 30 years ago was to protect the officer against weapons that were within the reach of the suspect or to prevent the suspect from destroying evidence of the crime this decision makes perfect sense. So why was it necessary? Well, as we all know, over the years the search incident to arrest doctrine became abused by police everywhere. Acting with the consent of courts that refused to find the searches invalid, police searched vehicles in almost every arrest. Courts had even upheld searches conducted after the arrestee had been removed from the scene and there was no possibility of his accessing the vehicle.

This decision puts an end to that.

But in my opinion they didn't go quite far enough. They created a new reason to search by holding that police may search a vehicle when there is reason to believe that evidence of the crime of arrest is to be found within the vehicle. If you are arresting for a DUI, then you can search the vehicle for alcohol. If for drugs, then you can search for drugs.

How this last exception is going to be managed I don't know. If you have the right to search for drugs but find a weapon can you charge for a weapons violation? I don't see why not, but all that will have to be litigated. The rationale for permitting the search seems to be destruction of evidence, so why would not the access rule apply?

It's certainly a positive ruling. Now if we could just educate the public so that they would know that they don't have to give consent to search when asked we might make some real progress.


Monday, April 20, 2009

DUI to Reckless

Last week I was successful in getting a DUI reduced to a reckless driving over in Davidson County. I wish all DAs were as easy to get along with as that one was. Basically, the test results showed the client was barely over the limit and there may have been some issues with the stop, so it made sense to just reduce it and be done.

In other places it's a little harder. You wind up fighting out all the motions first, then getting it reduced after you win (or not, if you lose). Seems like it just makes more work for everyone, that way.


Sunday, April 19, 2009

Representing Yourself

A few weeks ago I wrote about having observed that many people are being forced into representing themselves because they have jobs and don't qualify for being appointed a public defender but at the same time don't have enough money to cover their bills and pay for retained counsel. It turns out that my observations are a trend that has caught the attention of the New York Times. They report, in an April 9, 2009 article, that the number of unrepresented people appearing in courts is up by as much as 10%.

This is something that we need to address. People are having their rights denied simply because they don't know how to properly present their cases to the court. Judges tend to treat them exactly as they would a lawyer. If they don't know the magic words to invoke introduction of evidence that evidence stays out. Even if it should be admitted.

The Tennessee Supreme Court and the various bar associations here have established an equal access to justice program that is designed to encourage more lawyers to provide pro bono services. But is that enough?

Probably not. Most attorneys simply can't afford to do a lot of pro bono. We do try. I handled a full blown child custody trial not long ago and only charged $1,000.00. That's not true pro bono, but I did basically donate several thousand dollars worth of my time. I also try (and am one of the few who do) to work with people and work out payment plans, even on criminal cases - although that may have to stop.

This is a challenge that needs to be addressed by our political leaders. More needs to be done than just asking lawyers to do more free work. Believe me, I'd do it if I could. I love the law and it is my nature to want to help people. I just can't do it and make a living at the same time.


Saturday, April 18, 2009

Driver's License and No Insurance

A few months ago I wrote here about the laws that have been passed that permit insurance company's to have your driver's licenses suspended if you don't pay their demand for subrogation. They do this by asking the Department of Safety to require you to pay in the amount of the subrogation claim and the penalty for failure to do so is suspension.

The course of events in the case I was handling was as follows:

My client was involved in an accident. He was not cited as being at fault by the investigating officer. The other driver's insurance company paid to have that car repaired. They then sent my client a letter saying "We have determined that you were at fault. Please pay us $3,000.00, which is the amount of the claim we paid our insured." My client refused, since he wasn't at fault and there had been no determination by any court that he was obligated to pay anyone anything. The insurance company then sent a claim to the Department of Safety asking them to require my client to pay in to them $3,000.00 "pending a determination of fault." Still no court case was filed. My client received a letter from the Department of Safety informing him that he must pay or face suspension of his license.

We appealed and had a hearing that focused on the issue of fault. The insurance company did not send anyone to the hearing.

The decision came down this week. My client was found not to be at fault and his license will not be suspended.

But he is out several thousand dollars in legal fees - all caused by an insurance company pursuing a subrogation claim that they had no right to pursue. I am wondering whether they ought to face some kind of liability there for his out of pocket expenses or other damages.

In any event, this happens on a regular basis. I actually had another client call last week with the identical problem. He hasn't decided whether to retain me to appeal that one, but I hope he does. Only by standing up for yourself will things begin to change.


Friday, April 3, 2009

Winning the Lottery

Someone asked me today what I would do if I won the lottery (I don't generally play). My reply was that I would keep doing what I'm doing but if I had enough I would just start working for people for free or for vastly reduced fees. I'd probably hire in a few attorneys to help increase the caseload, advertise that we would do criminal cases free and just help people out.

No, I'm not a do-gooder. I just love practicing law (so I wouldn't give it up) and I hate having to turn people away who can't pay. If I was ever in a position to do so, I'd love to run a free legal clinic.

Likely it won't happen, but it was nice to dream about it for a while.


Thursday, April 2, 2009

Traffic Cameras

A couple weeks ago I handled a call on my radio show (Thursdays, 11:00 AM CT, WTNK Hartsville) about the use of video cameras to issue tickets for running traffic lights. At the time, I expressed concern about the fact that, once we start down that road, we would find it easier to use cameras for other law enforcement tasks until one day we find ourselves living our whole lives under the watching eye.

Well, I recently read an article detailing the plans of several cities across the country to use the cameras, and special software, to read license plate numbers and check them against a database of insured drivers. No insurance? A ticket will be mailed to you.

The officials quoted in the article made no bones about it - it's not safety, it's revenue. They just want the additional money.

This is why the trend is so bothersome.


Tuesday, March 17, 2009

Defending Yourself

I was in court yesterday for a preliminary hearing on a felony case and sat through two trials in which both criminal defendants were attempting to represent themselves. If it wasn't so sad it would have been funny to see them try to act like lawyers.

I've often commented that practice law consists of learning the "magic words." If you know the magic words, it's easy. If you don't, it's impossible.

Yesterday, one of the defendants was attempting to get photographs into evidence. He didn't know that you have to ask the witness if the photograph accurately depicts the conditions in the picture at the time it was taken. The judge tried to feed it to him, but he still couldn't get them admitted. He didn't know the magic words.

Both defendants lost. One was sentenced to 30 days, suspended. The other received a substantial fine. I thought both cases were winnable, if they had a lawyer.

I wasn't present in court when they were arraigned. I don't know if they chose to represent themselves or just fell into the crack of not being able to afford a lawyer while not qualifying for a public defender. If it's the latter, I don't feel sorry for them. There ought to be a crime called "Being Stupid." If it's the former, and they just fell in the crack in the system, then I do feel badly for them and point out that we really need to figure out how to provide lawyers for everyone who needs one.


Thursday, March 12, 2009

Second Edition of Radio Show

Today being Thursday, I had the second edition of my WTNK radio show. It was very lively this week. I fielded questions on bankruptcy, child support, estate planning and (from a live caller) a question about breach of a contract for telephone services.

If it stays that lively, I think it may be successful.


Legal Research

When I got to the office this morning I found an e-mail message asking a question (I get a lot of those). The question dealt with some rights between parties that arise under one of the uniform state laws. Tennessee doesn't have any case law interpreting this particular provision.

Here's the catch - since it's a uniform state law there may be case law in other jurisdictions that would be persuasive authority. In order to know the answer, research must be done in all the states that have adopted that law.

Now most small firms who have Lexis or Westlaw accounts can only afford the package that includes their state and, perhaps, federal cases from their circuit. Only the big firms can afford all states or all federal. So, if a client comes to a little firm (which saves them money) and the little firm doesn't have access to the required database, can the little guy take the case?

In the case that was presented to me there is a large entity on the other side that would likely head to a big Nashville firm. Without doing the work up front to know I would run the risk of the big firm blowing the case out of the water simply because they can do more up front research.

Fortunately, I have access to more resources than most of the little guys, so it won't be a problem if I take this case. But this does illustrate a fundamental unfairness in the current system - which tilts the table against little firms and in favor of big firms. While the TBA and the ABA all profess their support of the sole practitioner, the rules make it ever more difficult for sole practitioners to survive.

On a final note, before I step off the soap box, since the law of all 50 states is now mostly uniform, why doesn't a license to practice in one state permit you to practice in another?


Friday, March 6, 2009

Morrow Murder Solicitation Case

The trial date has been set in the Lauren Morrow case. I will be trying that one in the Sumner County Criminal Court on June 22 and 23. Motions will be heard on April 24.

This is the interesting case of the young woman who allegedly attempted to hire someone to have her mother killed. The other two defendants accepted plea bargain deals, but Ms. Morrow prefers to go to trial. There are two motions to suppress evidence, a motion in limine and a motion to recuse the trial judge that will get argued first. If the recusal motion is granted, the trial date will likely get changed to accommodate the new judge.

It will certainly be an interesting case to try.


Thursday, March 5, 2009

First Radio Show

Today was the first show on WTNK. The topic was jury duty. We didn't have any callers (not surprising for a new show) but the conversation between me and the host was lively.

Jury duty was one of those topics that should be of interest to people, who are always wondering how to get out of it if called. I had to say that I was reluctant to provide them with a sure fire method of avoiding service since the system depends on people who are willing to serve. We mostly talked about how people get on the list and what the process for getting selected to actually hear a trial is like.

Next week, the topic will be employment law - since I have had a lot of employment law questions phoned into the office lately.

People who can't get WTNK over the air can listen on their web site (link above).


Friday, February 13, 2009

New Radio Show

Beginning March 5, 2009, I will be starting a radio show on WTNK in Hartsville, Tennessee. In a half hour format, I will speak about a topic of law that might be of interest to the listeners and then will open up the phones for listeners to call and ask (simple) legal questions. The show will air each Thursday from 11:00 to 11:30 AM.

More information will be posted on the WTNK web site and on my web site.


Friday, February 6, 2009

Time to Flee the Country?

OK, so maybe it's time to flee the country. Readers of this blog know that I sometimes comment critically on laws and cases that infringe on our civil liberties. How about this one:

A bill has been introduced in the Tennessee legislature that would require people on probation, parole and some sexual offenders to wear a GPS monitoring device at all times. Presumably this would make it possible for the state to monitor their location at all times (and determine whether they have violated their probation, etc).

I understand the arguments in favor of such things. Probationers and parolees have reduced civil rights while they are subject to supervised community release. But I worry about our ability to draw lines in areas like this. We tend to go to extremes in this country, all in the name of public safety (look at all the people pushing to ban cell phone use in cars).

If we start down this GPS monitoring road, where do we stop? Will it become permissible to place GPS devices on overweight people so that they can be arrested if they go into McDonald's? After all, the government has an interest in maintaining the public health (that's the rationale for the movement to ban smoking that has swept the country). While you may think this is ridiculous now, come back ten years from now and I bet people are talking about it.

The bottom line is that we just aren't disciplined enough as a society to act with wisdom in these matters. We tend to shoot first (pass a law) and ask questions later. But it's harder to get rid of a law than it is to pass it in the first place. Once these GPS laws get passed, businesses spring up to provide the hardware and services needed to comply with the law. Those businesses then have a vested interest in keeping the law in effect. Those businesses create a powerful lobbying force that prevents the repeal of the law.

I hope this law doesn't pass in Tennessee, but I imagine it will, either here or somewhere in this great country.


Monday, January 5, 2009

Role of Defense Attorneys

Last week the Tennessee Supreme Court ruled on a suppression issue in a murder trial. The defendant had been convicted on the basis of a confession obtained without benefit of the Miranda warnings. Basically, the police interrogated the defendant, obtained a confession, then obtained a waiver of rights and obtained a second confession. Both confessions were suppressed and the case was dismissed.

The noteworthy thing about this case, from my point of view, comes in the last couple of paragraphs, where the court discusses the fact that, although it is certainly bad to let the guilty go unpunished, it is worse if we permit the government to run roughshod over our rights. If the government itself cannot conform to the law, what authority does it have to compel law abiding behavior from its citizens?

In my opinion, the court didn't go far enough in this case in condemning the interrogation tactics used by the police. In the un-Mirandized interrogation, the police lied to the suspect by informing him that they had his fingerprints at the crime scene and employed other psychological techniques to entice the suspect into confessing. Even when properly Mirandized, it is simply human psychology to fall victim to these techniques and talk. And the police interrogators are being trained in how to break down a person's free will and obtain confessions.

This comes into play in the motion to suppress that I have filed in the Lauren Morrow case and her statement should be suppressed. One of these days I hope that the court takes up the issue of the use of psychological interrogation techniques in someone who has been properly Mirandized and gives us some guidance as to what is appropriated.

Until then, it is up to defense attorneys to do what we must to protect people's rights. I have another case that is quite troubling - the Jaron Taylor case. Mr. Taylor is charged with aggravated sexual exploitation of a minor for receiving, and remailing, child pornography on the internet (AOL). How did they catch him? Well, the US Congress established what they call an independent company - the National Center for Missing and Exploited Children. They say that it is not a government agency, despite the fact that high level justice department officials sit on its board of directors. The NCMEC has agreements with the internet service providers that the ISPs will scan people's e-mail and tip them whenever they find child pornography. The NCMEC then informs the local authorities, who obtain search warrants and seize the suspect's computer.

Since everyone maintains that the NCMEC is not a government agent, there is no Fourth Amendment violation. The central issue in the Taylor case is going to be whether the NCMEC is simply a disguised government agency.

It is unfortunate that we live in a time in which our essential and fundamental rights are being eroded. Often, the only thing standing between the awesome power of the state and the lowly defendant is the defense attorney. If we stop doing our job, everyone loses.

The Tennessee case can be found here:


Morrow Case Motions

Next week we have a hearing in the Lauren Morrow case over in Sumner County. That is the case of the young lady accused of conspiring with her boyfriend and another young man to kill her mother. The case drew national attention when it was first brought, but things have quietened down considerably.

The two motions concern suppression of her statement to the police and for severance of her trial from those of the others. The suppression issue is straightforward - she was never given her Miranda rights. The other two were - written waivers are in the file and you hear them being given on the recordings. But Lauren wasn't. That, combined with some questionable interrogation techniques, should provide a basis for suppression.

The severance motion is a little more complicated. If you read the Tennessee Rules of Criminal Procedure regarding joinder of defendants, you would think that severance is not something that is easily achieved. But, if you look at the federal and state case law, you find that severance almost always should be granted.

The main reason for this is that joint trials cannot be fairly had and preserve both the rights to assistance of counsel and confrontation of witnesses under the Sixth Amendment and the right not to testify under the Fifth Amendment. The scenario is as follows:

Suppose you represent a defendant who intends to place the blame on a co-defendant. In order to effectively present that defense you might want to call that co-defendant to the witness stand. Yet, in a joint trial, you can't do that. And while, in a separate trial, you might not be able to compel that testimony either, you can do one thing in a separate trial that you can't do in a joint trial - you can comment upon the fact that the co-defendant refused to take the stand.

If you try to comment on the refusal to testify in front of a jury that will decide the guilt of both defendants, and the judge permits you to do this, that defendant's Fifth Amendment rights have been violated. The only way that you can preserve your client's Sixth Amendment rights and the co-defendant's Fifth Amendment rights is to sever the trials and proceed separately.

It will be interesting to see the trial court's take on all of this. For anyone interested, I will try to find time to post the motions on JD Supra where they can be viewed. Otherwise, they are public record in the Sumner County Criminal Court.


Sunday, January 4, 2009

Scientific American

It is rare that an article about a legal topic would appear in a science magazine, but this month's Scientific American contains an article about the famous Scopes trial (held over in Dayton, Tennessee). For anyone interested in legal history, the article is worth reading. You can fine it here: .


Why Me?

The same client who asked me about wins and losses also asked me why he should hire me and not some other lawyer. I didn't have a ready answer, but I have given it some thought over the past couple of days.

Instead of reasons to hire me, I thought of reasons that you shouldn't use as the deciding factor in hiring me.

You shouldn't hire me because I am a sharp dresser. I'm not. In fact, most days you will find me at the office in jeans and a T-shirt (unless you catch me coming or going to court). I'm just a regular guy who happens to be a lawyer.

You shouldn't hire me because I have a big, downtown, office. I am downtown, but the town is quite small. The office is nice, though, and getting nicer as I make some improvements to it.

You shouldn't hire me because I have TV commercials that promise I will win you more money than another lawyer, or have past clients talk about how much money they got. I will never run that kind of commercial. I think most TV lawyer ads are sleazy.

You shouldn't hire me because of any of those reasons. I guess the reason to hire me is that I get good results in most of my cases. I try hard. I don't like to lose.

If those reasons aren't good enough, then you're probably better off going to one of the TV lawyers, I suppose.


Saturday, January 3, 2009

Wins and Losses

A potential client asked me last week what my win/loss record was. I had to admit that I didn't really know. I also had to ask what he meant by wins and losses.

Law isn't exactly like the football game I am watching while I write this. It isn't a matter of who is ahead on points when time expires. What is a win and what is a loss is different for different matters.

Take, for example, the case I tried in Rutherford County a few months ago. My client was charged with criminal contempt for failure to pay child support. He was over $20,000.00 in arrears. There was no doubt that he owed the money, no doubt about the amount. The only issue was ability to pay.

Prior to trial, I offered to settle the case by agreeing to the amount and setting up a payment schedule. The agreement would have provided that a jail sentence would kick in should he miss a single payment (which was calculated as enough to pay the current amount due as well as an additional sum to reduce the arrears). The other side refused the offer and we tried the case.

The judge ruled that the arrearage was the amount of our offer, found him in contempt, imposed a jail sentence then suspended the sentence upon condition that he begin making payments. The amount of the payment was nearly identical to my offer.

Was this a win or a loss? You could look at it either way. It was a win because the result was good for the client. He avoided jail and was given time to get his act together and pay the support. It was a loss because the client was, technically, found guilty of criminal contempt.

Most cases I have handled fall into this category. You can look at them as wins because the results are good. You could look at them as losses because, technically, the other side prevails on its issue.

I tend to count cases like the one above as wins. It is the result for the client that matters, not the technicality of the judge's ruling.


Thursday, January 1, 2009

Collection Tactics

This week I had two reports of collection agency tactics that violate any number of federal and state laws. One of them called the debtor and informed her that the caller was a deputy with her local sheriff's department. He went on to say that if she didn't make full payment before 4:00 he would be at her home to arrest her. After she called me I traced back the phone number to New Jersey. It was registered in a company name, but there is no record of that company being incorporated in any of the jurisdictions I searched. When I looked up the corporate address, it appears to be simply a mail drop.

The second incident involved a young man who was called and told that his pay would be garnished at midnight if he didn't give them a bank account number from which they could withdraw funds. He declined. Tracing back the call led to similar results.

Although the Congress passed the Fair Debt Collections Practices Act many years ago, it has done nothing to curtail the aggressive tactics of the collection agencies. In the first place, the law has no teeth. You can only obtain actual damages or the statutory damage amount of $1,000.00. These claims are too small to permit a debtor to hire an attorney and file suit.

In the second place, the collectors have simply placed themselves outside the jurisdiction. They hide - many of them, I am convinced, are offshore, with their phones simply routed through US numbers.

What needs to happen is to rethink the damages section of the FDCPA. Instead of $1,000.00 statutory damages, let's make it three times the amount of the debt. We can subject it to offset for the debt amount, but a collector who violates the law would find itself owing two times the amount of the debt to the debtor. After getting hit with a few of those, they'd clean up their act.

Then make it illegal for the collector to operate without a physical address at which they can be found. And require them to post a bond equal to the amount that they collect in a year, with that bond being used to satisfy any judgments against them. If you can't find a collector, the debtor may elect to proceed against the bond.

Now that would be a law that would have some teeth and which would help clean up an unsavory business.