Spin the random topic wheel...

So the Family Court trial wrapped up today. There wasn't an actual trial, as we agreed to a new arrangement to settle the matter, but there was too much grumbling to say it ended with a whimper.

Today the random topic wheel is coming to rest on "legal questions from relatives." I've yet to have the question asked directly, but it's out there in the ether, and it's something most lawyers will face at some time. It's the infamous "how can you defend those people?"

I find, in talking to friends and family, that there is really a substantive and a procedural aspect to that question. Substantively, I think every person has the right to a fair hearing and to due process of the courts. The vilest offender, completely repulsive to me personally, still deserves the chance to have fair treatment under the law. A lot has been written on this topic, though, and not a lot varies greatly from what I would add. In short, we have a system that works well because the same rules apply to you, me, or the guy with the smoking gun in one hand and the crack pipe in the other.

Procedurally, many people don't understand how the criminal justice system works. This is where I tend to hear more complaints from those I know. If someone pleads eventually, the public wonders why he/she just didn't 'fess up to begin with. There are a variety of answers for that, all based in how the system works. For one, the judge might not be willing to accept a plea of guilty until the defendant has had a chance to speak to a lawyer. Entering a plea involves a knowing waiver of the right to proceed through the system up to a trial and beyond, and a judge needs to make sure that the defendant has been informed of these rights. Even if the defendant has a lawyer, negotiating the plea can take time, and a lawyer often needs to look at the defendant's rap sheet or other documents first. It'd be malpractice for me to advise someone to plead without knowing whether it's a repeat offense, violates probation, etc. So it's really not all about helping the scumbag du jour beat the rap by pleading not guilty, and entering this plea doesn't always mean the person is denying the offense. Quite often it is done to allow both sides to investigate and refine their cases.

Lawyers in the news

An article from today's Buffalo News. I won't pass judgment on the firms involved or comment on that, since I don't have enough facts to form an opinion. My reason for posting: a reminder that lawyers are human too. No, seriously, that wasn't the punchline. We may have graduated a special school and passed the bar, but no one knows everything and is completely infallible.

Thinking of law school?

A brief post, as I've been swamped of late and have been neglected my blogging duties.

Are you thinking of going to law school, and that's how you stumbled upon my blog? If you are considering law school (and this is something I tell my students every year in undergrad political science), take some time to work with a lawyer. Or better yet, do two separate internships. If you spend a semester helping at a corporate law megafirm, take at least a month and spend some time at the local legal aid. Or the reverse, depending on your preferences.

In my experience, every firm or office has its own culture and procedures. You may have loved your semester chasing debtors and finding hidden assets at Dewey, Cheatem & Howe, PC, but that's one small area of legal practice and one office. What happens after law school when the firm can't offer you something and you end up at Unnamed City Legal Services, working on completely unrelated issues, for the "other side"?

As a second point, it's also good to meet more lawyers before going to law school. The field isn't anything like it's pictured on television, for 98% of lawyers. I didn't know any practicing lawyers before I went to law school, and really had no clue what to expect from the people or the profession. I'm not going to say it's "hard" in the sense of coal mining or working construction outdoors in 15 degree weather...but I've never met a lawyer who doesn't work very hard. I don't just mean in the work-ethic sense, although the law does tend to attract a certain driven type. It's not a job where you can clock in, spend eight hours putzing on various tasks (or checking email) and then clock out. (Not that there isn't the odd day like that, of course). By and large, you need to produce--either in number of clients served, numbers of hours billed, $$ brought in, etc.

More regular and topical posts to resume once I wrap a Family Court trial this week....

Agony of defeat

Sometimes, young lawyers, you're going to lose. I think this is one thing that law school does teach well--after a lifetime of being academically able, sometimes being smart isn't enough. Someone will be smarter. Someone else may not be as quick, but will have a better answer, or even a worse answer presented in a better way. It's often a difficult concept for newbies to grasp, and I have to admit I'm not done wrestling with it myself most days. On a semi-disgruntled Friday afternoon, though, I just wanted to post that thought in case others were banging their heads in frustration.

Point is, don't take it too personally. It's the breaks of the game. Learn from it and move on. Unless you've committed grievous malpractice, and then see a lawyer. By and large, though, it isn't a reflection on an attorney to win or lose a given case. Sometimes the law/facts just aren't there, and sometimes they may be too complicated to be easily apprehended, and sometimes, you just get robbed. In my limited time practicing, I've found that most clients who end up on the losing side appreciate the effort put in and the attempt to represent their interests. They might not appreciate the bill so much, but they haven't been vengeful or angry most of the time. In fact, I've probably had more disgruntled winners, who felt they didn't get enough or it was "so easy" they could have done it without paying for legal counsel. Don't fall into the trap of thinking it's a zero sum game and someone else's success somehow drains lawyering ability from you.

Hi Mom.

Just thought I'd post a hello to one of my favorite readers, since I'm sure most of what I babble about is irrelevant to her. Back to regular posting soon.

Articles of Impeachment

This is from a random research project I was working on, and it seemed topical in today's legal/political world. While he resigned before being impeached, the House Judiciary Committee was preparing Articles of Impreachment on one of my favorite Presidents, Richard Nixon. Below is some text from the second Article that might provide food for thought given current events:

He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.

Chief Judge: No-fault divorce in NY.

My original idea was an Enquirer-style "Judge Kaye: I want a no fault divorce!" tease, but I decided that my already dwindling bank accounts wouldn't survive the inevitable lawsuit and disbarment.

What the story is actually about it, following a series of statewide hearings, Judge Kaye has adopted a committee report that recommends the creation of no fault divorce in NY. If you're not familiar with it, in NY you can't get one of those "irreconcilable differences" divorces based on the fact husband and wife no longer want to be married. In NY, someone has to be at fault--adultery, cruel & inhuman treatment, abandonment -for a marriage to be severed. Alternatively, the couple can negotiate a separation agreement and live apart for a year, then file to have the separation made into a divorce. The fact that one party has to be at fault can cause problems--even if taking the blame won't have an effect on custody or support, many people just don't want to be the one forever named as the "bad person" who ended the marriage.

Certain groups have opposed no-fault divorce for some time. Some religious groups feel making divorce easier is incompatible with their teachings. Some womens' rights groups have also expressed concern, as the current system can be effective in levelling unequal social/economic/education/etc. situations between the parties.

Personally, I'm all in favor of the change and I hope the State legislature takes action. I do some matrimonial/family work and quite often it's too emotional due to the fault issues. While family matters will always be laden with emotion and strife, creating new grounds or removing the need to lay blame solely on one person seems like a change that would make the process more efficient and easier on all involved.

More landlord/tenant

After another phone call with a client, I thought I'd return to this topic in an attempt to clarify one of those bits of law that is more complex than it needs to be. Say that you, hypothetical reader, are a hypothetical renter. You do not have a lease, but rent on a month-to-month basis. The hypothetical landlord stops by and gives you a sheet of paper titled "30 day notice," and says he needs you out by the end of the month as, hypothetically, he's selling the place and the new owner wants it vacant. But what's it all mean?

1. In upstate New York, a "30 day notice" does not mean a literal 30 days. Real Property Law 232-b, in somewhat antiquated language, specifies that tenancy outside New York City is terminated by notice "at least one month before the expiration of the term." RPL 232-a deals with termination in NYC, which is apparently a literal 30 days. What does this "at least one month" stuff mean? As a general rule of thumb, if you're served with a 30 day in one month, you have until the end of the next month. So if you get notice on February 6, and the landlord says you have until March 6, the landlord is incorrect. RPL 232-b states you have until the end of the next month, or 3/31.

Please note that the length of the month does not make a difference. The reason for this post is I, moments ago, had a client trying to tell me it wasn't a valid 30 day notice because February only has 28 days.

2. A "30 day" doesn't have to be notarized, issued by the court, or served in any particular manner. Unlike three day notices, which are supposed to be served in the same manner as a Notice of Petition and Petition, a 30 day can be delivered by a party. Unlike the Notice of Petition, a 30 day is not required to be issued by an attorney or the clerk of a court. Whether it is handwritten, photocopied from a book, or typed up on a home computer, all that matters is that the required dates are there and that the landlord signs off on it. Like 3 day notices, however, a 30 day can also be orally given.

3. A "30 day" is not required to list a reason for issuing, or even to have a reason. Termination of tenancy for illegal reasons, such as retaliation for calling the housing inspector, racial or other discrimination, or certain other categories can't fly, but the burden will be on the tenant in challenging a notice.

4. A "30 day" is not an eviction. An eviction (generally) is a court process in which the court hears the relevant evidence and makes a decision whether or not to grant possession to the landlord by removing the tenant. If you do not leave at the end of the time given by the notice, then the landlord can bring an eviction proceeding. If you do leave, however, you have not been "evicted" in the legal meaning of the word. I've had clients tell me things like "She evicted me six times," meaning the landlord had previously given 3 or 30 day notices. Maybe it's petty or semantics, but if you tell a lawyer, human services agency worker or potential landlord that you've been evicted six times in the last year, you're hurting yourself through misuse of the word.

5. As a tenant, you're still responsible for paying rent while living there, even if you've received notice that you have to move soon. Also common in my practice are comments like "He's evicting me so I'm not going to pay him." Well, if the rent isn't paid, you might very well be evicted in a summary proceeding for nonpayment. Once that happens, you'll get 72 hours to get out instead of 30-40 days. If paying for the current place and arranging for a new place isnt' financially feasible, talk to the landlord about it. Most would rather work out some plan, in my experience, than go through the hassle of court.

Final caveats: The above is general educational material and is not meant to be legal advice on your specific problem. Consult a lawyer if you need help. Secondly, anything that is said about landlord/tenant law is subject to revision if the parties enter into a lease, which can waive and/or create additional rights in both parties.

Myspace

I'm a myspace.com user, and I find it's a fun way to keep up with friends who are also members. Recently, though, there have been a number of stories in the press, such as this one, concerning the use by minors. The linked story concerns private school students who brought the wrath of the principal down upon themselves with school-related posts online. I'm still not sold that the out-of-school comments should have such in-school ramifications. Also, though, I'm not a parent and if I had a teen at home I'd probably be trying to rein in rights to protect said teen from predators and scammers. From a Constitutional standpoint, though, there are certainly questions being raised concerning the rights of minors/students to use such forums.