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.