Counseling at Law Blog

Professional Legal & Counseling Services

JURY DUTY, PART ONE

The jury is a fascinating human invention. We take for granted that juries are a fair way to decide things in this country. The “right” to a trial by a jury is absolute in criminal matters but not in civil or administrative matters. In fact, there are many kinds of actions where a jury is not an option, including arbitrations, which are required under many kinds of contracts. Nonetheless, most civil actions that go to court allow the parties to have a jury (if they want to pay for it). A jury becomes one of many unknown factors confronting the trial lawyer who is preparing for trial, and there are many variables involved in winning a case.

A trial is all about persuasion. A lawyer’s job is to marshal all the evidence and then figure out ways to persuade everyone that his side is right about what it says. Just because evidence is against his client, a lawyer does not need to concede the point. With a little mental energy, a good trial lawyer can take most evidence and turn it towards his client’s winning case. All that is required is to have the truth on the lawyer’s side. Whatever is true will win, in my view. Of course, truth is often elusive. People can look at the same evidence and see a different truth.

It is easy to see why trials are not about finding “the” truth. Once a trial is over, the parties usually are still disagreeing about the truth. Even when a jury is unanimous there will often not be finality in the minds of the participants. People don’t take losing very well. Discovery and the art of “getting ready for trial” is meant to educate the parties about the real strength of their cases. Someone can only bury his head in the sand for so long. At some point in time a lawyer and his client have to evaluate the potential for loss at trial, which has to give way to intelligent choices when someone’s livelihood or financial support is at stake. If parties can fairly assess the weaknesses of their case before trial, a settlement is better than rolling the dice. Settlements work when people are willing to admit that the truth is not so clear and reasonable minds might differ regarding the conflict at issue.

Cases go to trial only because the parties can’t adjust the way they see their case. Each side thinks the other side is crazy and that the judge and the jury are going to be on their side. The funny thing is that one thing is for certain: half of them are going to be wrong. And it is usually a rude awakening when one side suddenly realizes that wearing blinders can lead to a pretty big and unexpected shock. Like it or not, the parties must live with what the jury decided (or hope that an appeals court will come to their aid). A jury’s decision will forever change the lives of the parties. It is a heavy burden and the lawyers place a lot of weight on who gets selected to sit on the jury.

If you get a summons to jury duty, please go. Without willing jurors, our system cannot work well.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

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THE SEVEN DEADLY SINS

Can you name the seven deadly sins? A friend and I came close the other day, but we missed a couple. They are singly or in combination responsible for virtually all the misery in everyone’s life. Whether you yourself are guilty of some of them, or whether you have fallen victim to someone else visiting them upon you, they are alive and well in human relations. Before reading on, see if you can name them.

Here goes: Greed, Lust, Gluttony, Wrath, Sloth, Envy and Pride. If you assess yourself fairly, my guess is you struggle against one or more of those in the form of a bad habit or two. Even the most revered of celebrities and leaders have shown themselves to be subject to the sorrow that flows from these basic flaws of character and spirit. In the realm of legal problems, these seven deadly sins keep lawyers fully employed in great numbers. Our entire legal system is designed to deal fairly with the results of these very human failings. Dissect any legal problem and you will see the signs of one or more of these deadly sins. Lawyers, clients, judges, adversaries, witnesses, all of them are subject to the disastrous effects of these destroyers of common sense and amity.

Take greed for instance. Insurance companies are notorious for resisting legitimate claims so as to enhance the company’s profits. Big companies have often been caught cutting corners at the expense of the public’s safety just so their officers and shareholders can make a lot of money. How many politicians (and even judges) have been found accepting bribes in exchange for granting favorable advantages? Almost all breach of contract disputes are about money and who gets to keep it. Money isn’t the root of all evil, but the desire for it is.

Lust, gluttony, wrath, sloth, envy and pride are lurking behind most wrongful behaviors. Lust is not solely about sex, of course. Lusting after power and material possessions can lead to decisions that can bring a successful man to his downfall. Gluttony is about more than just food, and shows a person who is never satisfied with what he has. Wrath leads to anger—and anger clouds judgment quicker than anything else. Sloth causes a person to expect something for nothing, which never leads to a good end. Envy leads to an ungrateful attitude towards what is already secured and injures the spirit. And pride cometh before the fall, don’t we all know? All of these sins keep us deluded, and delusion prevents people from finding good solutions to their problems.

If you are forced to confront someone who has impaired your legal rights, make sure you are not allowing any of these foolish behaviors to influence your decisions. Evenness of mind is very valuable when dealing with disputes. Put anger aside, don’t be greedy, control your pride, bury your lust and don’t try to measure yourself against your neighbor. Be prepared to give litigation your fullest attention, because it will require it. Often it is said that compromise is always better than court. There is a lot of truth in that statement. Above all else, don’t expect others to be free of faults. Life doesn’t happen that way.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

FOLLOW THE MONEY

Perhaps the most famous piece of advice Deep Throat gave Post reporter Bob Woodward during the Watergate investigation was to “follow the money” to find out who was behind the Watergate break-in. That expression is equally useful when it comes to questioning whether Californians (or, indeed, Americans) are wise to support ballot petitions and initiatives that seek to limit the ability of consumers to sue companies for injuries of various kinds. There is hardly an election that does not include someone campaigning to put lawyers out of business, but it is always the lawyers for the injured citizens that are the focus of the attack. The defense lawyers somehow manage to stay under the radar. To understand the mentality of those who seek to prevent injured people from being compensated for a lifetime of pain and disability, just “follow the money.” It will always lead to mega-corporations who launch expensive ad campaigns under misleading committee names in order to confuse voters into thinking that stupid jury verdicts are to blame.

The truth is that insurance, pharmaceutical, tobacco and finance companies want to maximize their bottom line—and keeping consumers powerless is always a good step in that direction. If it weren’t for lawyers willing to take cases on a contingent fee basis, where the lawyer earns nothing if the client is unsuccessful, everyone who is reading this article would face a much more dangerous daily life. This country is one of the safest places in the world from the consumer’s standpoint because lawyers have been willing to take on the big corporate executives who care more about saving money than making their product safe to use.

To name a few examples, companies no longer sell flammable pajamas that incinerated infants, life-threatening asbestos is no longer used in schools, homes and workplaces, contraceptive devices that caused sterility have been recalled, trucks now have back-up alarm beepers and farm machinery that once amputated limbs now have protective guards. If those big companies had succeeded in their campaigns against trial lawyers, none of these safety features would have benefited the public. At the bottom of each of these stories is someone who was killed or maimed simply because it is cheaper to make a dangerous product than a safe one.

Don’t be fooled by campaigns that try to fool you into thinking that juries are stupid and judges are idiots. The law is strong and has sufficient safeguards to protect the public from foolish verdicts that achieve nothing except to make someone rich. No plaintiff’s case against a big company gets very far if it has no merit. When you follow the money, it always leads to high-priced, powerful law firms that make every injured plaintiff jump through every possible hoop before reaching victory. If it weren’t for those plaintiffs and their lawyers, many more people would be injured or killed each year for the sake of corporate profits. Drugs are safer, highways are safer, workplaces are safer, all because our legal system allows for compensation to a lawyer who is willing to work on a case for years because someone was a victim at the hands of big business.

Follow the money and you will find the truth.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

BAD HABITS BITE YOU

This may surprise you, but legal problems generally have to do with bad habits. Even when something seems to have come out of the blue, how a person approaches that thing will determine what becomes of it. More often than not, legal problems tend to bring out the worst in a person or a business, and because businesses are run by people, get my drift? When I try to help someone with their legal situation, I look for the “bad habits” on both sides of the case, both among the parties and among their lawyers. Once I can see the bad habits, then I can make recommendations that take those habits into account.

For example, if the party on one side or the other of a case has a life that is too busy to attend to important matters, then I know that the solution to the problem will require us to take that fact into account. When someone’s life is out of control, he or she is usually grateful for the opportunity to simplify things and a solution can be based on that truth. On the other hand, if a party involved in a dispute has a bad temper or a stubborn streak, then that truth has to be taken into account and the solution may need to be more emotional than rational.

Every legal situation has a theme, and that theme usually carries insights into the parties who have been drawn together for that drama. Often a person’s legal problem is the result of foolishly trusting someone, in which case the solution to the problem will involve taking responsibility for that misjudgment and owning that part of it. I have seen with my own eyes how a person can solve a sticky legal problem as soon as he accepts the reality of his own poor choices. Once a person can accept his own part in the problem that confronts him, he seems (often magically) to be able to find a way to resolve it and move on.

That is why mediations can be such an effective tool for resolving even the most difficult legal conflicts. An effective mediator takes the people into account and does not simply try to solve the legal dispute without understanding how it came to be in the first place. By allowing people to express their feelings in a safe setting, one that is confidential and full of opportunity to speak, people are able and willing to appreciate the situation from different perspectives and often find a solution that no one dreamed possible before the process began. By allowing the parties to decide their own fate, and by helping them to see all sides of their conflict, they can often use their intuition and good sense to change the course of the dispute and bring it to a conclusion.

I am always pleased to see my clients confront their own part in the problems that face them. Although this may also surprise you, people are glad when the can recognize how their own wrong approach led them to their own difficulty. The truth really does set a person free. Life lessons are never easy. The client who finds the right solution is usually the one who can look inside himself for his part of the problem. Then he can really get on with his life and be the better for it.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

PRETTY CLOSE TO PERFECT

Most people do not understand how the American Legal system works. The fact that “Judicial” is one of the three branches of our country’s government is not deeply understood. The judiciary is on equal par with the President and the Legislature. It can invalidate any other body’s action. Isn’t that amazing? The fact our courts have huge power over every decision made in this country requires its citizens to have a lot of faith in the judicial system, doesn’t it? Most people, citizens and otherwise, make a lot of assumptions about the legal system that are simply not true. How the legal system operates, and how the courts affect the lives of everyone who lives in this country, is assumed to be understood, but rarely is.

People watch “Court TV,” or Judge Judy, or Law and Order, or other similar fictional or reality-based depictions of our legal system, but those shows generally lack the complexities and beauty of our legal system. For all its flaws, our system is a great alchemical concoction of wisdom and power and, for the most part, it succeeds in achieving what it was designed to create, namely an important part of the system of checks and balances that makes our country great and its citizens (and non-citizens) secure in the knowledge that it is not alright to steal from a neighbor or cheat the government, among other things. For all its flaws, America is a land of many freedoms and we all profit from the way in which those freedoms are protected.

In California, for example, manufacturers of all kinds, and pharmaceutical companies in particular, are concerned with the safety of their products and make better products and safer products precisely because they do not want to be sued and lose millions of dollars. We are a land of many laws that protect consumers and those laws set the standard of care that builders and others have to follow for the sake of the people who will ultimately purchase the item. This is a country where we argue over what rights should be assured, but where the important rights are always secure. Those who wish to debate the role of government in dictating safety and other standards imposed on the manufacturers and sellers are happy to have the right to debate those issues. In the final analysis, our legal system works pretty well, although sometimes too slow for being of good to everyone.

For their part, lawyers achieve a lot of good for a lot of people. Yes, there are the ones that embarrass the profession (and give us jokes to laugh at), but many lawyers are brave warriors fighting within a good legal system, one that can challenge the President and Congress. One example is Thurgood Marshall, who became a lawyer to use the system to bring justice to black men, women and children, and he will long be remembered for many great decisions while serving on the Supreme Court. Our legal system produced and protected Justice Marshall when he was a new lawyer, and he became one of the unequalled leaders of our judicial system. He is one of many distinguished people who deserve credit for making our legal system great.

In many ways, our legal system is pretty close to perfect.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

WHAT IS MALICIOUS PROSECUTION?

In a word, malicious prosecution is “frivolous” litigation. Believe it or not, people are pretty much protected from things they say in papers and in person in connection with legal proceedings of all kinds. People can even lie and make someone’s life miserable in the context of legal proceedings with one important exception: malicious prosecution. If people and/or their lawyers prosecute a criminal, administrative or civil claim that is totally without merit, either factually or legally, then watch out! The courts acknowledge the injury caused by the prosecution of frivolous claims, and a malicious prosecution lawsuit is a way for the wrongfully accused person to be vindicated.   To be “frivolous,” however, a claim must be totally without merit, which means there is no evidence to support the action. It “lacks probably cause.” Additionally, the claim must have been pursued for a wrongful purpose and end favorably to the wrongfully accused person.

The requirement that the proceeding end favorably to the wrongfully accused person proves the person was innocent of the claims against him. Only then may he sue the person (and probably the lawyer) who sued him in the first place. In order to have the proceeding end favorably to the wrongfully accused person, that person must defend “to the end.” This requires great fortitude on the part of the wrongfully accused person, who may find it easier to simply pay some “nuisance” money to the person who is suing him. But if the defendant stands tall and prevails, then he is in a position to hold the person who sued him responsible for the time and money he spent defending against the frivolous litigation.

Once the frivolous litigation has ended favorably to the original defendant, then he must also prove that the underlying action was pursued for a wrongful purpose. This can amount to a lot of different things, including hatred or ill-will, indifference, unfair leverage towards settlement, as some examples. This element is called “malice” and is an important aspect of the malicious prosecution claim.

Finally, the survivor of the frivolous litigation has to establish how he was damaged, which is not difficult. A frivolous lawsuit causes harm, both to the person who was sued and also to the judicial system itself, which is maintained to hear and decide only legitimate claims. Thus, the victim of frivolous litigation can claim the monetary costs of defending against it plus the time and aggravation spent in doing so. Being wrongfully sued causes emotional injury, and victims of frivolous litigation are allowed a wide range of damages.

Usually the lawyer who files and prosecutes frivolous litigation is the main defendant in the malicious prosecution lawsuit. Clients who simply relied on their lawyers are usually free of responsibility, but they may still be dragged into the second lawsuit because of their lawyer’s foolishness. However, if the client provided the false evidence, thinking the legal system is a tool of vengeance, the client will also face big trouble.

If you are involved in litigation and think it might be frivolous (whether you are the plaintiff or the defendant), give me a call and I can see if it is and maybe help you get out of it safely.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

IT’S JUST HOGWASH

People should not believe that Plaintiffs’ Lawyers are the bad guys. The “tort reform” petitions that regularly appear on our ballots are sponsored by big business, so why are people persuaded by what they say? Insurance companies (or pharmaceutical companies or developers or automobile companies, you name it) are behind most legislation designed to make it harder for injured folks to get the compensation they deserve. Those profit machines (who do not care at all about the average person) finance expensive ad campaigns, spreading false tales about how juries are hypnotized into making large and foolish awards that defy common sense. Hogwash. There is no truth to the claim that plaintiffs’ lawyers can take a meritless case all the way to a huge jury verdict. Sure, there are unproven rumors, and I suppose some cases that a reasonable person might have decided differently, but our system is too good to allow meritless cases with large awards to stand.

The average person has no idea how hard it is for a plaintiff’s lawyer to take a case all the way to a jury. If lawyers were not willing to invest hundreds of hours of their time on a case that will net them nothing if they lose, this country would be unsafe at every turn. For all its flaws, our judicial system (which has its annoying aspects, don’t get me wrong) is very good at weeding out meritless claims and sending them to the rubbish bin. Judges take their jobs very seriously. Our legal system is based on the doctrine of stare decisis, which means that the trial courts must follow the legal rules of law established by the appellate courts. This rule guarantees that plaintiffs and defendants in all courtrooms in the state will get the same treatment and encounter the same law. Otherwise, there would be no rule of law and there would be no justice. This good rule protects the public from outrageous verdicts.

Under the guise that medical malpractice verdicts were ridiculously large, California (and other states) passed laws limiting the amount of pain and suffering a person who was injured at the hands of a negligent doctor can recover. Why is that right? Because of that limitation, many people injured by negligent medical care remain uncompensated. Who profits, do you think? Take a guess. The insurance companies, of course. As between a person whose body will never be the same and an insurance company, who do you favor? I am told that medical malpractice insurance premiums did not decrease as a result of the law limiting the recovery of pain and suffering. Only the insurance companies have profited. See what I mean?

If it were not for plaintiffs’ lawyers, many people would suffer a loss that results in a nice profit for big business and the insurance companies. Is that what the “tort reformers” tell the public? Of course not! Judges are generally very careful and cautious and, if anything, do not like making new law. If a case is not squarely within the allowable limits, they do something about it. A meritless plaintiff’s case rarely makes it to a jury. If a mistake happens, our appeals’ courts almost always set it right. We have a good legal system that protects the public against outrageous or ridiculous jury verdicts. Don’t be misled by hogwash. Be smart when someone tries to influence you with false tales that don’t hold water. Who knows? You may be the next plaintiff.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

WHAT IS DISCOVERY?

One of the defining characteristics of litigation is the process of discovery. In fact, a litigator is a lawyer who must understand discovery and use it to his client’s best advantage. Discovery is the name given to the legal procedures that are used to gather the evidence to win at trial.  The right to question witnesses and to demand that someone turn over documents in their possession is narrowly and specifically defined by various statutes so that everyone who is involved in a lawsuit has the same advantage, at least in theory. In truth, discovery is a complicated notion and it can make or break the client’s cause. A lawyer’s ability to effectively use discovery in the context of any given case is what separates the men and women from the boys and girls.

At the beginning of a lawyer’s evaluation of a client’s case, the kind of discovery that will need to be undertaken in order for the client to be successful is a key consideration. If the gathering of evidence is going to cost more than the client can hope to win even on a best day, then it doesn’t take a genius to understand that the client’s case is not worth the fight. It is no wonder that lawyers evaluate the strength of a client’s case according to the economic realities of discovery.

Before undertaking litigation, the lawyer must analyze (at least in general terms) what kind of evidence needs to be gathered in order to prove the client’s claims in court. There is no substitute for experience, and seasoned lawyers know the rules of evidence and can build their case before filing the lawsuit. Right from the start a good litigator will understand the client’s case well enough to anticipate how many witnesses will need to give testimony and what kind of documents will need to be collected to bring a fruitful victory. If a particular witness has to testify a certain way in order for the client to win, then the good lawyer will try to determine at the outset whether or not that testimony is likely. Even if a witness is friendly, things can change during the 18 months that litigation transpires. Sometimes witnesses are so unreliable (or they disappear or die) that a lawsuit is often a crapshoot. Moreover, sometimes the other side has a surprise witness or document, and the unexpected moment can destroy the client’s case.

The cost of discovery alone can climb to tens of thousands of dollars, and the client is ultimately responsible to pay those charges. Sometimes lawyers will “front” those costs, but often they will not (or cannot) do so. Many lawyers believe the client personally needs to be invested in the litigation process in order for the case to move smoothly along the difficult road that must be traveled.  The losing side will have to pay for some of the winner’s costs, which means the client has a lot at risk just by going forward into litigation. If the client’s damages are under $40,000, often the costs of the lawsuit alone make the exercise meaningless.

It is easy to see why parties should consider mediation as a good alternative to litigation. Before deciding to file a lawsuit, consult with an attorney who can help you to analyze the wisdom of that important step.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

SOMETHING FUNNY HAPPENED

Have you ever noticed that life is unpredictable? In fact, life’s uncertainty is one of the things that makes it difficult to overcome. Just when we think we know what is happening in our lives, things change and we are in the dark again. People think the legal system is something that’s predictable in this world, but that is just an illusion. It lures us with promises of truth and structure, but everyone who is drawn into the legal system feels lucky to emerge unbroken.  Jumping into litigation can be like walking into the Funhouse at the amusement park, hoping you don’t get foolish, make a wrong turn and break your nose.

Don’t get me wrong. It isn’t that lawyers are bad people (although some of them are), it’s that even the good ones are often powerless. Why is that? What is wrong with the legal system? How can it be unpredictable at the same time it is based on “precedent” and rules? Behind the scenes, lawyers know that resolving disputes in a courtroom can go in any direction. Good cases are lost. Bad cases are won. People lie under oath. Judges fall asleep on the bench. A witness dies, or has a failure of memory. Experts fail to deliver the goods. Clients run out of money. Lawyers run out of money. The courts (or the legislature) change the rules of law.  Surprise can be the name of the game.

Sometimes there is no choice but to turn to the legal system. When a person is forced into litigation, either because he has been sued or because others have folded their arms and refused to be fair, the system is all we have. A client who is forced into litigation needs to have a complete understanding of all that is involved. What will the exercise cost the client? Will the client be forced to pay more in legal fees than he can expect to win if he prevails? If so, litigation never makes any sense, and the client will be enduring unpleasant litigation solely to fund his lawyer’s lifestyle. Clients hate when that happens. If the lawyer takes the case on a contingency, the client may have very little to show for a victory after he pays for costs and gives his lawyer his percentage share.

The surprising nature of litigation is why lawyers caution their clients that no case is a sure winner. No case. A judge is just a person, and all people can silently harbor strange attitudes. A good lawyer handles his client’s case with the awareness that the unexpected can happen. Of course, both sides must live with that truth, and the best lawyers are the ones who can send some surprises to their opponents. A good lawyer knows how to turn the element of surprise into an advantage for his client’s cause. Even if something seems to be a setback, a surprise can be the seed of victory in the hands of a smart lawyer with a just cause.

It’s not easy finding a good litigator. That’s why I help folks who either don’t need a litigator (because they want to avoid litigation) or who don’t know how to find one on their own. Give me a call. In a one-hour session, I can probably get you headed in the right direction.

(Email readers, please note that my home page is at www.counselingatlaw.com. )

SEARCHING FOR THE TRUTH

All disputes arise out of misunderstanding. All societies develop forced strategies for resolving disputes because human disagreement can threaten to turn into mayhem. Of course, peace is elusive and not everyone will be happy with the results; indeed, if the powerful authority is clever enough, no one will win.

In America, we have courts and judges that are overcrowded with adjudicating the crimes people commit. When civil disputes land in court, the daydreamer might think it will be a search for the truth. But the truth is no easier to find in a courtroom than it is in real life. The courtroom is simply the place where the parties enact their dramatic version of the dispute at hand. Some people are better actors than others, and some are better script writers. When a client picks a trial lawyer, there is little time for an objective evaluation. From the starting line, how the drama will eventually play out once the stage has been set is anybody’s guess.

Sure, there are ways to evaluate a specific lawyer’s track record, but the chances of success in a particular case are based on something more important: the Truth. Delusion is the biggest obstacle that keeps truth hidden from view. In order for a client to effectively evaluate how to handle a dispute, there must be an objective search for the truth. That’s when good lawyers are worth their weight in gold.

A good lawyer uses intuition to search for the truth in the client’s situation and then helps the client to see it. Juries are not always good at seeing the truth, and mediocre lawyers and judges are everywhere. A lawyer may appear polished in his office but may be lazy or arrogant or temperamental or overworked or dishonest or worse, traits the client will eventually confront on some level. In addition to the lawyer’s flaws are the flaws of countless others who will influence the course of the litigation like witnesses, experts, opposing counsel or the judge’s mother-in-law. Not to mention the client’s flaws—because nobody’s perfect, right? Many things can shield the truth from view—because life is all about trying to find truth in the surrounding confusion.

The best outcomes, with or without litigation, are based on finding and relying on the truth, whatever it may be. If a client is partly responsible, for example, then truth dictates the client must accept that responsibility, or nothing will turn out right. The universe stands behind us when we are aligned with the truth. Even when the outcome is disappointing, a client who is grounded in the truth will be okay with it. Litigation is risky business that is often fraught with mental disturbance. Staying in the zone of truth is the only way to come out okay.

The trick is in getting the client to accept the truth, otherwise all is lost. Truthfully, a client who sees the truth is always glad for it. The truth can reveal solutions the client never thought possible. It can even heal old wounds and restore broken relationships because the truth really does set people free. The greatest thing a lawyer can do is help the client see the truth in the midst of turmoil. Winning or losing in court is just what a lawyer does when all else fails.

(Email readers, please note that my home page is at www.counselingatlaw.com. )