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Tuesday
Jul232019

Time to Speak Out

I have listened to Trump’s statements (when I am forced to) over the years. This latest rant, telling four congresswomen (the “Squad”) to go back to their countries, was beyond the pale. I spoke out and protested to my friends, but they were pretty much in agreement. Is that enough? I feel as if I now must publicly make my protestations loud and clear. 

As shown by established case law on racial discrimination, this is a racist statement, plain and simple.  This would be especially true if the speaker was addressing someone who was born in this country and not some “shithole” foreign location. Throughout Trump’s run for president and after, Trump was openly critical of our country and the people who managed it. He was going to drain the swamp. Maybe he did. Now he has filled it with individuals who put their own financial interests, as well as their friends, above this country, and they are being indicted for their criminal acts. 

When did I frist hear that phrase about going back to your country? Might the native American Indians said this phrase to the white explorers who landed on their doorstep, pushing them out of their native lands and into reservations? Might the Pharoah have said this to the Jews when they proved to be too much to control in his kingdom? Might we have said that to Japanese-Americans before we locked them up at Manzanar, taking away their homes and possessions? Might we have said that to Mexicans when we took over Texas and California? And might not slaves, forcibly kidnapped from “their countries,” willingly and happily gone back to their former lives in Africa?

This country was formed by dissent and activism. Rebellion was in our nature as we rejected the loss of individual freedoms and overtaxation. Are we not a better country because we outlawed slavery? Are we not better for allowing women to vote? And what about implementing child labor laws and consumer protections? Dissent and activism means someone is paying attention. Someone is noticing that we can be better and demanding change. Much better to be vocal than to allow injustice to continue without speaking a word. 

If we sent such activists back to “their own countries,” even if such a country did exist, then we will have lost the voices that seek change and a better world. Who would be left? Only people who agree wholeheartedly with Trump or those who sit silently by while our freedoms and protections are destroyed? And aren’t we all immigrants, except for native American-Indians?

Trump’s disavoval of a crowd’s chant to “send her back” rings hollow. He insists he told the crowd to stop or he spoke quickly to stop their chants. The videos of the rally proved otherwise. No, he smiled (or smirked) with satisfaction at how he could control and incite his crowd.

He is a racist without doubt. I don’t expect him to change. Nor do I inspect many of his followers to change. But we have to decide who we want to b e as a country. Are we going to be ruled by fear and hatred? Or are we going to raise our voices and vote for love and compassion. I will choose love over hatred, and kindness over cruelty, with every breath in my body. I refuse to let hatred take over our beautiful, and yes, imperfect country.

Friday
Jul192019

The Nonsense Factory by Bruce Cannon Gibney 

An appellate colleague, who has been practicing for over 40 years, told me of her upcoming oral argument, a right guaranteed to litigants under the California Constitution. She seemed resigned to the process, “Oral argument is a joke. The Court rarely changes its mind, much less listens to what I have to say. It’s simply done to make the public believe they are really listening.” After spending so many years in litigation, I have to admit that I am often frustrated and pessimistic about getting justice for my clients.

Sometimes the end is the best place to start.  In the final chapater of his book, The Nonsense Factory, (published in 2019 by Hachette Books), author Bruce Cannon Gibney notes, “Law cannot survive when people cease to believe in it. Unfortunately, few legal institutions seem moved to address the decay of civic faith.” That loss of faith can be traced back to systems that make or break laws and law schools that accept too many students so they can pocket huge tuition fees. But do they prepare their students to be attorneys or even take the Bar exam? If they did, perhaps students wouldn’t experience such a high failure rate or require the service of companies that focus on preparing graduates to take the Bar. The high cost of law school almost mandates that students take high-paying corporate jobs, if they can get them at all, to pay their student debt. Gibney notes the “troubling levels of employment,” including the lack of training and the failure to consider the clients’ perspective. To make it worse, law schools don’t actually teach students to practice law in any particular state.

Over the course of my life, I’ve witnessed this decay. Parties do not usually contact me until the end of a case when an appeal might be needed. If this was their first encounter with the legal system, they often express disillusionment over the failure to receive justice for their case. I would often reply that “consider yourself lucky if you get justice,” but really, should luck enter into it at all?

That disillusionment rose to a group experience after the O.J. Simpson murder trial or after watching acquittal after acquittal in police shootings involving victims of color. Gibney traces that disillusionment from the justice system, our method of selecting judges, costs of litigation and even the jury system itself. Don’t assume that there is more justice in our arbitration system, which favors big companies and repeat customers over a single use. 

At the highest level, it is hard to convince citizens of the impartiality of Supreme Court justices who regularly split along partisan lines. One would be crazy to argue that personality and politics don’t enter int a judicial decision. So, why would we think the situation would be any different at the lower level where litigants face enormous legal fees and costs, the need to hire experts, and decisions by jurors who don’t really want to sacrifice their time hearing a lengthy trial? Trying a case is simply not practical in these times, which is why so many cases are settled before trial. 

That disillusionment soon spread to Congress as their inertia and partisanship was publicly observed. As Gibney points out, the favorable opinion of Congress is very low. People have little faith that the Congress will get anything done, no matter who is in power. Gibney writes, “Congress is a sour joke, widely loathed. Partisan preference plays a role, but citizens also sense that legislators cannot do their jobs.” A case in point, the failure to come up with a comprehensive medical insurance scheme that will allow the poorest among us to receive adequate medical care. Or what about our immigration scheme?  The public is often surprised to learn that a member of Congress does not even read a bill or fails to show up for hearings. Gibney extends that inertia to bureaucracy, which is often headed by partisan choices. 

Of course, the executive branch is not spared in Gibney’s exhaustive research. This one is especially susceptible to pessimism, if not national depression. While no one would argue that Trump is a typical president, our faith in government has been severely tested as we have watched our relationships with allies to sink to a new low and face ongoing threats of war. We have a president that has more admiration for bullies and dictators than he does for democracy. 

But Gibney does not leave us without hope. He claims, “At some point, the public will decide that legal dysfunction has risen to an intolerable level, and shift from polite requests for incremental reform to adamant demands for fundamental change.” Isn’t that what we have been hoping for with each election?  Even though our last choice has failed miserably in this regard, Gibney does find some ways to pursue reform, such as by serving on juries, donating to solid candidates, advocacy and activism. We can’t afford to sit on the sidelines.

Monday
Jul082019

Find a good lawyer, get through it as quickly as possible, and then avoid litigation like the plague

Several years ago, I wrote an e-book, How to Find and Keep a Good Attorney.  It was written in response to questions I received from people who were searching for a good lawyer or were having problems with their current one.  Based on the dissatisfaction of so many people, I thought my new book (my third!) would fly off the shelves.  (Of course, I meant this literally as e-books are not on physical shelves and do not fly anywhere.)  Based on the price of $4.49, I estimated it would take me a lifetime to accumulate enough royalties to buy a good chicken dinner.  (I suppose steak dinner sounds more expensive, but I am concerned about the effects of cows on our environment.)

I've decided that I do not need to become rich through royalties and I am going to offer my book for free to the public.  Yes, that means you. In the long run, I think it is more important to get the word out and perhaps save a few people some grief in dealing with the legal profession.
So, here it is.  Download it and enjoy.  Learn.  Even pass it on.  But don't try to get a refund!  And best of luck.  As I've often said, litigation is an endurance sport.  It can ruin your health, and maybe even your marriage.  It will definitely put a dent in your bank account.  Find a good lawyer, get through it as quickly as possible, and then avoid litigation like the plague.  Your head and heart will thank you for it. 
Wednesday
May292019

Being an attorney and then not

Recently I was visiting a grave site at the Mount Hebron Cemetery. I have photographed some historic cemeteries in the past but it was the first time I was in a cemetery on personal business. As I walked through the cemetery, I found myself looking at the age of death, noting that some people had a long life while others died when they were young. It made me think that I should exercise more often and try to eat better.  (No, I am not talking about artisan ice cream versus the cheap stuff.)  

Many of the grave sites were marked with a description of the role that person played in life. Some said "father," others, "husband," "wife," "daughter," or "son." I was surprised when I found a tombstone that indicated the deceased person was a "lawyer," although I was pleased the role of "father" was more predominantly displayed. I wondered who decided that the word should appear on the person's tombstone and, more importantly, why.  

As I face my retirement, I know I have decisions to make. Do I retire and give up all work or do I work part-time? My answer depends on who asks me the question and how I feel on any particular day. One thing I have learned about retirement is that people quite often face a loss of identity. After all, I have described myself as an attorney for well over 40 years now and it has become an essential part of my identity. At least, it is or was essential to me. It's hard to give up that role, even if I have other things I want to do and other identities that describe me.  

For the most part, I have enjoyed being an attorney. I have loved helping people and I know there are other ways to help, but it just feels so odd to no longer tell people I am an attorney. Okay, I will admit my ego is wrapped up in this question but I don't want to be defined by a role. I want to continue to help and care about people but it may not always involving handling an appeal. Sometimes just listening and caring is enough.  

I thought it would be easier to transition to another role in my life, i.e., artist, but it is hard to let go of being an attorney. It's been an honor and a privilege but I have other things I want to do.

 

Thursday
May232019

The hazards of representing yourself in pro per

As legal fees continue to skyrocket, more and more people find they cannot afford to pay high rates for legal services. Reasoning that they know their cases better than anyone else and are not willing to forfeit their claims, laypeople are filing lawsuits in pro per.  (In propria persona, but that is quite a mouthful!)  

It is a daunting prospect. As an in pro per litigant, you are held to the same standard as an attorney who has gone through law school and may have years of experience in civil procedure. You cannot use ignorance of the law as an excuse. You are expected to know how to present your case without the assistance of the judge.

Some litigants mistakenly believe that a judge, who is supposed to be impartial, will help you. Such a believe is inopposite to the very concept of being impartial. It requires a judge to educate you at the expense, and very often the objection, of the opposing side.

Judges take different views on how helpful they can be. The reality is that courts are more efficient if everyone knows the rules. That means that both parties are represented attorneys. Attorneys know their roles and the procedures involved in handling a case. Explaining these rules to in pro per litigants takes time and patience. Not all judges are willing to do it and will take very opportunity to encourage you to retain an attorney. Some are nicer than others in their encouragement.

Judges also know that even the best case can be lost through a procedural error. Miss a hearing and you have no voice. File your papers late and they will often be disregarded. There are rules - statutes, rules of court, local rules, and even unwritten local practices - that must be learned and applied. It is a mindfield for the in pro per litigant.

In the last few weeks, I have been contacted by in pro per litigants who have lost their caes at the superior court level.  Most of them were lost due to procedural errors. Quite often, there is not much I can do at the appellate level, especially if there is no record to explain their failure to observe procedural rules. For instance, if you file a medical malpractice action against a doctor, you will eventually need a medical expert at some point, whether it is to oppose a motion for summary judgment or at trial. But many doctors refuse to act as an expert for in pro per litigants. End of case.

It is sad to hear from litigants who may have a meritorious case but lack the knowledge to pursue it. In essence, the legal system is set up against in pro per litigants. Sometimes there are viable alternatives, such as legal clinics, legal aid or even self-help clinics offered by the courts. But in reality, these may be poor substitutes for hiring an attorney. I think it would be great if there was a way we could make the judicial system more user-friendly but there does not seem to be a big effort to overhaul it to accommodate in pro per litigants.