Legal issues without the legalese

Do You Have Attention Deficit Disorder?

Watch the Video and see if you can keep track of how many times the ball is passed before you read on.

What was the result? Not what you expected? Maybe you have seen this video before. But if you haven’t, what a powerful lesson about the unreliability of our own senses the video conveys. If someone told you there was gorilla in the video, you would have said no way. If you were the one who saw it and tried to convince a group of people about what you saw, would you be able to? You might say, “Sure I would, I know what I saw”.

But studies suggest you would probably go with the flow and say there was no gorilla. In the well studied Asch conformity tests, participants were placed in a room with other ‘participants’ who were not really participants but confederates of the researchers. The group was given a line of a given length and then told to identify from a selection of other lines, which one resembled the original line most closely in length. Without going into too much detail, when the group of confederates gave the wrong answer, the participate went along with it most of the time! Even though they could clearly see with their own eyes that the line was not the same length. Does that make you think about what you would do if you think you saw a gorilla, but 11 other people say the didn’t?

What does this have to do with law? Everything. There is the obvious connection to recent research that eyewitness testimony is unreliable. It shows how if a jury focuses on one issue (the bouncing ball) they might completely miss the critical fact that proves your case (the gorilla). But perhaps most importantly it shows how even when presented with evidence beyond a reasonable doubt, a juror might agree with the group and vote against that evidence.

Think of it this way, in any sport there are a thousand different distractions that an athlete could be thinking about. Sometimes you can see those distractions take over when the 5 year old runs off to chase a butterfly instead of playing the game. A trial is no different than a sporting event. Ask anyone who has done one, its mentally and physically exhausting. I speak from experience when I say that a trial exhaustion increases exponentially when it spans over a few days. And when you’re exhausted, your judgment suffers.

The same goes for jurors. They have to listen to witnesses drone on and judges read lengthy, monotonous, technical instructions about something that doesn’t personally affect them instead of being out working or relaxing.

So make sure your attorney doesn’t contribute to the distraction. Find an attorney who can separate the important from the unimportant. Whether they have learned how to do that through experience, or maybe they have a natural ability. What you want is someone who doesn’t put up with any monkey business.

Remember to Believe: Forgetting Might Kill You (Or Your Case)

“Whether you think you can or you can’t, you’re right.”- Henry Ford

Henry Ford was on to something when he said those words. Something so powerful there is even a scientific name for it: The Placebo Effect. One of the early scientists to identify the power of placebos was Dr. Henry K. Beecher. In his 1955 publication The Powerful Placebo, Beecher describes how soldiers receiving saline solution instead of morphine still experienced pain releif. He further went on to explain how this effect was observed 35.2% of the time. That is powerful medicine, but what does it have to do with law?

At the end of the day, an attorney has to be able to convince a jury that they are right. More importantly, the attorney must believe in their ability to do that. It is easy to go with the flow and say “that is a crummy case” or give up when pitted against forces that loom large in comparison. But think of Victor E. Frankel, a noted neurologist and psychiatrist who survived the holocaust concentration camps. In his book, Man’s Search for Meaning, Dr. Frankel describes one prisoner who had a vision, in February of liberation on March 30th, but died on March 30th when the liberation did not come. Frankl writes,”to those who know how close the connection is between the state of mind of a man – his courage and hope, or lack of them – and the state of immunity of his body will understand that the sudden loss of hope and courage can have a deadly effect.” Only when the man gave up his belief in liberation did he succumb to sickness and death.

I am not saying all you have to do is believe you have a case or believe you will win and let the money roll in. Certainly there are lawyers who don’t really believe in their case and still win. And actually there is a real need for that in criminal law where a client may confess to their attorney that they are, in fact, guilty of the crime. The lawyer is required to keep that attorney-client communication confidential and make the State prove it’s case. If belief in innocence was needed, then there would be a lot of unrepresented defendants. (Representing individuals attorneys know are guilty in a later post) What I am saying is that an attorney who can sense a wrong, and believes in their ability to fix it has a better chance (maybe 35.2%) at actually fixing it.

I think about that when I take on a case. I did that when I took on one of my first cases in law school. A foreclosure case. I read through close to one thousand pages of security transaction documents to find the one piece of information that helped me right a wrong. I believed in my abilities when I took on domestic violence cases as a prosecutor. Instead of cases being dismissed when it was a male victim, or when the female victim didn’t show, we tried them. Sometimes the defendant was acquitted. But the fact that there was even one conviction of those types of cases was virtually unheard of.

So, find a lawyer that believes in their abilities. Not overconfident, but one that is willing to dig a little deeper before throwing in the towel. Someone that has that american can-do attitude that Henry Ford expressed over 100 years ago. Because even if your attorney doesn’t have those abilities, the placebo effect is real and might help win your case.

Lawyers: Winging It Since 1850

“If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.” That is an excerpt from Abraham Lincoln’s notes in preparing a lecture to a group of young lawyers. Then, as well as now, the ‘Unprepared Lawyer’ is a topic of much debate.

Recently, the lawyers for Jerry Sandusky claimed they were not prepared to go to trial and were often times “flying by the seat of their pants.” While that case went to trial, other attorney’s have refused to try a case they were unprepared for and put in jail for their refusal.

Arguably, there is a big difference between the two cases linked above. Sandusky was arrested and charged on November 5, 2011 and the trial began on June 11, 2012. Whereas, Public defender Brian Jones was assigned the case the day before trial. But they illustrate a point, lawyers are often unprepared for a trial date. Sometimes, circumstances are outside their control, i.e. when a judge is unreasonable and won’t grant a continuance. Sometimes, it is because they simply choose to wing it.

I have tried cases and argued motions where the opposing counsel didn’t bring a copy of the exhibits, didn’t interview our main witness before trial, or didn’t research the law in New Mexico. Sometimes, their unpreparedness didn’t matter and they didn’t suffer any consequences. But, sometimes, their motion was denied outright.

A common saying by law school instructors and law practitioners is, “I may not be the smartest lawyer, but I will be the most prepared.” Being prepared separates the good lawyers from the great ones. For example, a good lawyer might be able to say ,”Judge, I think there is a case out there on that issue saying the DOT has a legal duty.” That attorney might be right. And if they have a reputation for being smart, the judge might believe them.

A great lawyer will say, “Judge, Lujan v. NMDOT, decided August 4, 2014 by the New Mexico Court of Appeals in paragraph 32 upheld that the DOT has a duty to use ordinary care to remove hazards from the road. I have provided defense with a copy and I have a highlighted copy for the court. May I approach the bench?” That attorney is right, and they can prove it.

By the way, here is a link to that case.

Part of my experience as a young lawyer has been the absolute requirement of having this level of preparation when going to court. A young lawyer can’t rely on perceived credibility, they have yet to establish it. There is a reason that advertisements put lab coats on regular citizens or why some people don a fake pair of spectacles or put a touch of grey in their hair. These ‘tricks’ to make a person seem more credible may work some of the time, but they cannot prevail against an attorney who is prepared. If they do, there is usually an appeal. That’s why as a lawyer, you have to have done the research. Research is time consuming and, as Lincoln said, can be a drudgery.

A friend of mine often said whenever I asked him a question I didn’t know, “well, let’s consult the law.” I hated that answer at the time, but not being “exempt from the drudgery of the law” made me better prepared when I found the answer. Those attorneys who do that, can better represent you and expose lawyers who are just winging it.

So, make sure your attorney isn’t relying on her reputation or his natural abilities. Read up on the issues in your case in the helpful links page of this blog. Ask your attorney some well thought out questions and see if they have the answers or more importantly, if they will find out the answers to questions they don’t know.

"I know a guy, who knows a guy"

If you haven’t watched Breaking Bad and you don’t know the fictional lawyer Saul Goodman, check out his real website. But anyone who has seen Jim Carrey in “Liar Liar” knows that Saul Goodman is just the latest in a long line of fictitious attorneys who skirt the law to help their clients. So this stereotype of the shady lawyer must have a basis in reality somewhere right? Yes it does.

In fact, Facebook has it’s own page dedicated to the top ten shady lawyers. Paul Bergrin, to name one of them, is currently serving a life sentence for crimes ranging from prostitution to conspiracy to commit murder of a witness. Here are some more details about him. But don’t be fooled, dishonest lawyers have been around since Abraham Lincoln’s time. See his notes to young attorneys archived in the library of congress. “There is a vague popular belief that lawyers are necessarily dishonest” Lincoln states in his lecture. The same could be said almost 200 years later, just look at the popularity of shows like Better Call Saul. A Google search for “do i need a shady lawyer” can bring up dozens of results.

Why do people root for characters like Saul Goodman? Maybe its because the ‘shady’ lawyers seem to know the loopholes. And maybe that is ultimately what matters: knowledge of the law. Knowing what is legal, what isn’t, and what is in the grey area is fundamental to the practice of law. Some lawyers make their entire living by arguing in the grey area. You might say that without a grey area, maybe we wouldn’t need lawyers, everything would be clear cut. Does that mean being ‘shady’ comes with the job? That depends on the definition of shady. Would you consider this billboard a shady advertisement?

The thing is, he is right. Just because you did it, doesn’t mean you’re guilty. You’re innocent until proven guilty. I have tried a number of criminal cases where I had great evidence that someone had beaten up their spouse and committed domestic violence. But, when the victim doesn’t testify, that prevents key evidence from being presented and a not guilty verdict would sometimes follow. The same principle applies for civil law. An attorney who understands legal principles like the one in the billboard above can represent you better.

So, don’t go looking for a ‘shady’ attorney. You might end up being the one cheated and you definitely don’t want to be involved in the disciplinary hearings that are likely to follow when your attorney ends up like Paul Bergrin. Instead, look for an attorney that knows the law isn’t always black and white, can argue it well, and follows Lincoln’s advice to always be honest.

Morning Coffee Makes You Rich, Right?

“My sister had a case where she stubbed her toe and they gave her $50,000”. This statement or something like it perpetuates the idea that obtaining a large amount of money for a relatively minor injury occurs often and easily. The quintessential example of this is the “Hot Coffee” case.

If you haven’t read the case in law school you can read the wikipedia article on the case of Liebeck v. McDonald’s Restaurants. Without all the facts, you might believe the popular myth that you can get a million dollars from spilling coffee on yourself. It’s true, she spilled the coffee on her thigh and inner leg area. It is also true that she was awarded $2.86 million in damages. That’s the extent of what most people can remember about the case.

But what really happened? Stella Liebeck had third degree burns on her legs, lost 20 pounds while in the hospital while undergoing multiple skin grafts, and initially only asked McDonalds for $20,000 to cover her medical costs of about $18,000. McDonalds offered $800. The plaintiff (Ms. Liebeck’s attorney) asked the jurors to award 2 days of coffee sales (in 1994) to Ms. Liebeck for her extensive injuries. $2.7 million.

They did! Case closed! Not really. The Defense appealed the decision and the award was reduced to about half a million. While an appeal of that decision was pending, the case settled for an undisclosed amount. Even if you think your case might be worth ‘big money’ there is always potential a judge can strike it down later on even if you win.

But judges are reasonable, right? They know how much the case is worth, right? Maybe, and most do, but this bit of news should trouble us all. A judge took a bribe to reduce an award in a negligence case. A rare event to see something like this in the news, but still concerning.

So what is the takeaway? There is no slam dunk case and you never know what a jury (or judge) is going to do. What you can do is find an attorney who knows the nuances and facts that lead to substantial awards. An attorney who is up to date on legal issues and trends will be more likely to ignore antiquated notions like the one likely told to plaintiff lawyers in Liebeck’s case that New Mexico courts had never found for a plaintiff in a products liability case. Until they gave out a 2.8 million dollar award.

Slip & Falls: No Laughing Matter

Most of us have seen a cartoon or played a video game where someone slips and falls on a banana. Banana or no banana, some people may get up and walk away only feeling a little embarrassed, what is more embarrasing is not knowing how serious slip and falls can be. According to the CDC In 2005, more than 15,8007 people over the age of 65 died as a result of a fall.Over 540,000 slip and fall injuries requiring hospital care occur in North America each year. That’s nothing to laugh at.

I slipped, I fell, and I got up, now what? Take pictures, file an accident report with the store, and get names of any witnesses. Those three steps can help you in the long run. You don’t want to be laid up four weeks later with an anterior cruciate ligament tear trying to recall this information while sedated with painkillers. You may not realize how badly you are hurt at the time of the fall, so out of an abundance of caution take those proactive precautionary steps.

See a healthcare professional. If you are injured, get help. It is as simple as that. Regardless of if you have a legal claim, not treating an injury and trying to “tough it out” might work some of the time, but if it doesn’t you may do more damage by not doing anything.

“But I can’t afford to go to the doctor.” You can’t afford not to. Even if it turns out you don’t have a claim, wouldn’t you rather know there is no permanent injury? Besides, everyone should have health insurance of some kind or another at this point. If you don’t, pay a visit to healthcare.gov and find a plan that is right for you.

Sometimes, people are just klutzy. But, sometimes, floors are left in unsafe conditions. Whether there is a hole in the floor, the floor is wet, or the classic banana peel, someone else’s negligence shouldn’t come out of your pocket.

"Voir Dire" or is it "Vour Diore":

“I’m not calling the cops unless she’s got a gun to my head”. That was a great nugget that a potential juror gave me when I was prosecuting a case involving a male victim of domestic violence. Was that the type of juror I wanted behind closed doors deliberating? No. But it’s exactly what I needed someone to say during the selection process.

Selecting a jury is one of the most difficult and most important things to do during trial. If done right, potentially, a case can be won during voir dire. Voir dire is a french term that means ‘to speak the truth’. The truth attorneys want to know is: what are your biases? Can you listen to the evidence fairly? Or will you ignore everything I say? If a juror has already heard something about a case they could potentially be biased. For example in the Colorado theater shooting case, the largest jury pool in history will be gathered. http://www.foxnews.com/us/2015/01/20/jury-selection-to-begin-in-colorado-theater-shooting-trial/ That pool will be winnowed down to the final jurists who claim they have not heard anything about the case. More on ‘undercover’ jurors in an upcoming post.

The one piece of advice I took to heart about void dire is: embrace being uncomfortable. Void dire requires attorneys to ask probing questions. Having done dozens of voir dires about domestic violence against men and women, I always aim to get someone to speak up and say exactly what everyone is thinking but doesn’t want to say. “If there is even a chance he’s guilty they ought to string him up and hang em” Another nugget extracted in an alleged child sex case. All the jurors that secretly agree with these types of statements are given a voice. Once they speak up, I identify them, ask them further questions, and exclude them based on their answers.

The worst thing to happen in a case is to get an attorney who is afraid to ask the tough questions. A good attorney knows that during a voir dire, you want to hear the seemingly unfavorable answers. Otherwise, you could get an unfavorable verdict.

Your Day In Court

“I don’t care what they offered, I want my day in court”. How many times have you heard something like that? How many times have you wanted to say it? As any trial attorney will tell you, the vast majority of cases don’t go to trial. They end up settling (in civil cases) or pleading (in criminal cases). Trials take time and are expensive. Not to mention you must herd witnesses (often times similar to herding disgruntled cats) to testify. But perhaps the most daunting thing is putting on a case in front of a jury.

Imagine, getting up in front of 40-140 people (yes, first a jury needs to be picked from a pool of people) and select just 14 (a jury is 12 but someone has to be the alternate). Some attorney’s go their whole career without ever doing it. It could be because they are nervous about public speaking, it could be because they don’t want to deal with the hassle. An attorney needs to ask deep, probing, and sensitive questions to each juror (more about Voir Dire in an upcoming post). And even after finally selecting what seem to be 14 rational people, they sometimes don’t come to the seemingly obvious verdict. I am obliged to say this “There is no slam dunk case”. That case would settle anyways, not go to trial. That’s because jurors are too risky.

Individual jurors are logical. Jurors put together are crazy. Wherever you stand on the political spectrum, in the last 20 years there is some case you probably don’t agree with. OJ Simpson, Michael Jackson, George Zimmerman, to name a few. Entire careers are made on conducting jury panel preparation on big cases. Companies specialize in jury consulting to find out what average joe/jane thinks. Maybe there is some edge or magic formula, but then again maybe its just a crap shoot and you are only playing odds.

So where does that leave you? We have all felt wronged at some point. And when that wrong leads to injury, well maybe its no coincidence that injury contains the word jury. We want to tell someone about it and have it fixed. That would be the role of the jury. Right? Well as i said before, the vast majority of cases don’t make it to trial. Just check out this New York Times article on the subject. http://www.nytimes.com/2008/08/08/business/08law.html?_r=0 While the article is a little old, the trend continues.

So what is the point? Make sure your attorney knows how and when to try a case but also how and when to settle a case. There are always reasons for doing something. Make sure it is the right reason. Being too “gung-ho” either way may ultimately not be in your best interest.