Lessons from Sandy Hook.

Remember last year's shooting at Connecticut's Sandy Hook Elementary School?  20-year old Adam Lanza shot and killed his mother, and then 26 people (plus himself) at the school.  Recordings from various 911 calls were released yesterday.  Some of the lessons to be learned (again):

- The recordings include anguished people inside the school describing the killer continuing to fire.  Apparently three of the 911 calls to state police went unanswered (there were seven recordings released).  Police arrived within 4 minutes but it took them another 6 minutes to enter the building.  Lesson?  Calling 911 won't save you from a determined killer.

- The first priority of police is to protect themselves.  Of course there is nothing inherently wrong with that most natural instinct, but it did delay their entry into the building (they thought there might be a second shooter nearby).  Similar concern apparently also delayed entry into Colorado's Columbine High School shooting scene a decade earlier.  Lesson?  The police can't save you either.

- By now it should be obvious that "gun free zones" aren't necessarily gun free.  And surely they make tempting targets for determined killers.  Lesson?  Laws only deter the law-abiding.

Dealing with Contractors.

New house construction, remodels, kitchen updates, new flooring, roof repair?  If you've dealt a lot with contractors you've probably run into problems with the work they did, or were supposed to do and didn't.  Here's how to minimize problems:

1.  Put everything important in writing - start and end dates, changes, amounts due and when, estimates, who pays for the materials, any guarantees.  Email is a good way to memorialize such things so craft them accordingly.

2.  Include an attorneys' fee and legal cost provision - for example, if you have to take the contractor to court, you want him/her to pay your legal fees and case costs if you win.

3.  Try to deal only with a reputable and established business - is it bonded and insured and if not, how long has it been around, does it have local offices?  Get references and check them beforehand.

4.  If you get in a dispute, have another (reputable and experienced) contractor take a look and give you a written opinion on what went wrong, who caused it, and what it'll take to fix or repair.

5.  Save a big chunk of the fee payment until the very end, only when it is all done to your satisfaction according to the written agreement above.  This is especially advisable if its a relative, or friend, someone without much experience, or not an established business (see #3 above).

6.  Before filing a lawsuit (best to have a good lawyer do that), try in writing to lay out the problem to the contractor and give him/her a reasonable chance to fix, repair or refund.  If not, take 'em to court; you (or they) can always try again to negotiate a resolution later.

Trial versus Plea - Which is Better?

     Most criminal cases end with a plea agreement (sometimes called a plea "bargain" depending on one's viewpoint) rather than trial.  The benefits usually are apparent - reduced criminal charges, speedier resolution, minimized sentence risks, and of course lower legal fees and costs.  So why would anyone ever try his/her criminal case?

There are seven main reasons:

1.  No acceptable plea offer is made.  The prosecution does not have to make a plea offer, or if one is made, it is a bad one (because the facts of the case are terrible, or the defendant has a criminal history, or the law precludes a better offer, or the prosecutor's policy is not to extend good offers, or the judge won't accept a better offer etc.), or not really an offer at all (such as having the defendant plead to the charges and be sentenced by the judge, known to some defense lawyers around these parts as "the Jeffco deal").

2.  The defendant is innocent. Just as the prosecution does not have to make an offer, a defendant does not have to accept one and instead may invoke his/her constitutional right to trial (where the charges of course must be proven beyond a reasonable doubt).  Some judges will not accept a plea (a requirement) if the defendant insists on innocence.

3.  Delay.  By not taking a plea, the case eventually is set for trial and related proceedings before then, delaying resolution of the case.  Whereas a plea may end the case in a month or two, trial may extend it out a year or more (and even more for appeals).

4.  Trial may result in a better outcome.  Although most criminal trials (state and federal) end up with the defendant losing - by something like over a two to one average - good facts, good law, good evidence, a lack of bad evidence, a good defense strategy etc., and a good lawyer, may justify "rolling the dice" with a trial.

5.  Strange things happen when trial is set, and it usually favors the defendant.  In the run-up to trial, witnesses move away or otherwise become unavailable, evidence gets lost, laws change (think of the marijuana laws), the defendant has the chance to make a more favorable impression etc. - all potentially resulting in a better offer or even dismissal of charges.  During trial, all kinds of things happen with witnesses and evidence and rulings that inject new (usually more favorable because it can't get much worse for the defendant by then) dynamics into the case, further justifying the risks of trial.

6.  Send a message to the prosecution.   Many defendants finds themselves repeatedly in court facing criminal charges.  The plea offers get worse and the convictions pile up.  In those situations sometimes defendants simply have to decide when to fight (via trial) rather than whether to fight.  Prosecutors generally would much rather resolve a case with an easy plea than do all the work associated with trial.  Sometimes trial is the best place and time to stand and fight.

7.  Preserve an appellate argument.  Before trial the judge usually is called upon to rule on various evidentiary matters - what evidence can or cannot come in at trial for instance.  Plea deals typically cut off the case from further review so any perceived errors in those rulings basically are waived.  In drug cases for example, search and seizure rulings early on can determine the outcome of the case.  Trial may be necessary to preserve ruling errors for appellate review and possibly reversal (i.e. if the drugs are thrown out, the case might be too).

     Of course every case is different.  Criminal defense, like all litigation, is a dynamic process, frequently changing to favor one side or the other.  Call Sanderson Law, P.C., 303-444-8846, when you need experienced representation in criminal or civil cases.  Sanderson Law, P.C.  Experience + Personal Service = Success.

What to Wear to Court.

"Dress for where you're going, not where you've been" is another one of the timeless gems learned from my old boss in New York.  It means to look as good as you want your future to look.  Or as my mom would say, Don't dress like a bum unless you want to be one.

Showing up at a court proceeding is more than just showing up, even if you have a good lawyer (like Sanderson Law, P.C.) doing all the talking.  Being on time (a little early is on time), cleaned up, dressed up, and positive, sends valuable messages to the other side, to people watching, and to the judge.  It conveys commitment to toughing out the process and confidence in the outcome.

Business casual is the baseline.  Anything more is better.  Although they say you can never be too dressed up (people assume you're going someplace better later), don't overdo it - leave the flashy tuxedo or evening gown for the party when the case is finished.  How you look in court says a lot, so make it the best you can say.

Do I Need a Lawyer?

If you find yourself asking this question, the answer is that Yes, you do need a lawyer (even if it is to tell you that you don't need a lawyer).  Let me explain.

Lawyers are not the second oldest profession for nothing.  People (and businesses) need them, and have from the earliest days.  They can help, a lot.  An old lawyer friend once told me, People can do their own dentistry work too, but having a professional do it is much less painful.

Ever notice when a lawyer, or politician, or judge, or police officer etc. is charged with a crime, or involved in a lawsuit, they most always have a lawyer helping them?  Surely if lawyers were not necessary these "insiders" would not bother with them.

Criminal matters these days - even relatively minor ones - are fraught with risks and dire long-lasting consequences.  Check out the pages and pages of the latest punishments for drinking and driving offenses for example.  Civil judgments can haunt your whole lifetime.  All kinds of regulatory agencies are out there overseeing business and professional activity too.

The fact that lawyers may be a necessary evil makes them no less necessary.  Play it smart; play it safe.  Call a lawyer first.

What is White Collar Crime?

Newspapers and TV - and lawyers and judges - unofficially label certain criminal offenses as "white collar" crimes.  These typically involve the alleged stealing, misuse and otherwise making off with lots of other people's money.  The media version is of the blue-suited, white-collared accountant, business person, lawyer, or other professional with a briefcase full of cash absconding to Mexico.  Hence the phrase white collar crime. 

They usually involve crimes that are not inherently violent, like say assault, robbery or homicide.  They are also distinguishable from the more everyday variety of crimes, like drinking and driving, drug possession or domestic violence.

White collar crimes also tend to be prosecuted more frequently (though certainly not exclusively) in federal court, because they involve the crossing of state lines, significant amounts of money, numerous co-defendants or victims throughout the country or world, and a complex myriad of federal statutes.

Indeed, often their very complexity qualifies them as white collar crimes, seemingly involving a tangled web of corporations and associations, bank accounts, volumes of paper, accountants, lawyers, politicians, and the like.

Lastly, white collar crimes can carry with them long prison sentences and huge fines.  Indeed, lawyers handling them have noticed an increase in the number of such cases being prosecuted and the severity of sentences.  Much of this is the result of public and political pressure, and ebbs and flows with the economy.

Fraud, embezzlement, forgery, tax evasion, Ponzi schemes, misuse of entrusted funds, etc. can all qualify as white collar crimes.  If you or anyone you know is charged with one of these, get a good lawyer on board fast.  The stakes are high, the consequences severe. 

The best white collar defense lawyers immerse themselves in their client's case, learning the business and its nuances, compiling and personally reading the documentation, discussing the case with experts who can help, investigating and exploring every possible avenue of defense.  It takes commitment, dedication, and great amounts of time most "general practice" or high-volume lawyers simply do not have.  Call Sanderson Law, PC, when you or someone you know needs help.

Can you recover monies for flood damage?

Most of the folks who suffered flood damage recently - for example in Lyons, Longmont and nearby towns here in Colorado - did not have flood insurance.  Mainly this is because they don't live in recognized "flood zones." Those people are in the (further) unenviable position of having to seek government assistance or make good their own losses.

Some standard home owner's insurance policies provide limited funds ($10,000 is typical) for backed up drains and resulting damage.  Water seeping into basements generally is not covered.  Of course whether there is any insurance coverage, how much, and the details, requires a reading of applicable insurance policies.   A phone call to the agent should be made ASAP too.

We litigated a case out of Lyons not that long ago where a neighbor had altered the drainage on his property, resulting in a massive amount of water/flood damage to our clients' house following a particularly heavy August rain storm.  The jury agreed with us and awarded substantial monies to cover our clients' losses. 

The bottom line is that, absent insurance or government assistance, unless you can show that someone else negligently or knowingly caused water to move onto your property and damage it, little relief is available.

Will the dam burst on doping cases?

The U.S. Postal Service is suing Lance Armstrong, claiming it was hurt by its highly touted sponsorship of his Tour de France cycling team while he secretly was doping (which apparently he admitted on TV?).  No doubt the USPS will be asking for its support money back, and then some.  Lance and his team are fighting hard to get the case dropped.

The case is really interesting because it is based in large part on claims of fraud.  As this blog has discussed in the past, a civil fraud claim provides a powerful remedy (and deterrence) because it can reach back years to the fraud and allow for the recovery of pretty much any and all kinds of resulting money damages - economic loss, noneconomic loss (like pain and suffering if appropriate), punitive damages, attorneys fees, case costs etc.  Most importantly, it could result in a civil judgment collectible from Mr. Armstrong himself (and any other person or entity proven at least partly to blame).

You can bet other professional high-priced athletes (and their lawyers) are watching this case.  Arguably anyone who has been defrauded by athletes who cheat could bring such a lawsuit.

Can new evidence help an old case?

Throughout the summer Colorado media outlets have been reporting problems with the state's criminal evidence testing lab at the Department of Health (formally known as the Colorado Department of Public Health and Environment, or CDPHE).  The CDPHE for example tests blood samples taken in connection with DUI cases.  Based on an independent investigation report, it seems the lab boss was biased for the prosecution, that lab techs were inadequately trained, and that required lab protocols were not being followed, among a host of other problems.  In short, the lab tests could not (and some say still cannot) be trusted.

What about all the DUI cases that went down before this new information about the lab came to light?  Many people accused of that and other crimes went to trial and were convicted based on faulty supposedly scientific evidence against them.

Fortunately the state's rules of criminal procedure (i.e. the rules that help guide when and how the government can proceed against your life, liberty and property) provide a remedy.  Rule 33 (similar to the federal Rule 33) allows a defendant to ask the court for a new trial based on newly discovered evidence.  Of course there are certain restrictions - like the evidence really has to be new, be of significance to the issues, the defendant has to show he tried to get helpful evidence sooner, and the request must be accompanied by an affidavit (explaining for example why the evidence is new).  The request should be granted if it is in the "interests of justice" to do so.

There is no time limit for seeking a new trial using this rule, other than that it should be done soon once the evidence (its nature, scope, significance etc.) comes to light.  A similar process may be available for cases that pled, that is, where the defendant took a deal (based on bad evidence?) instead of going to trial (by far, most defendants plead their cases).

So pass it along, and if you or someone you know needs help, give us a call.

Goal-oriented decision making threatens our legal system.

The law is always changing.  Usually change is good and to be expected.  Much of our law is made in the way individual cases are decided by appellate judges and applied by trial judges.  Those decisions become the basis upon which subsequent cases are decided.  In my over 25 years reading case decisions, I've seen a change in how those decisions are made, and it isn't good.

Historically - for the hundreds of years we've been using the English common law system - judges adhering to time-tested legal principles would apply them to the facts and arrive at a decision.  That seems to be changing.  Too many cases are being decided backwards.  More and more judges seemingly arrive at a decision first, and then look for supporting principles to justify the decision.  This new goal-oriented decision making process is a matter of expedience - politically safe but not legally sound, a crowd-pleaser but dangerously short-sighted.  Because so much is based on precedence (i.e. previously decided cases), any weakness in the foundation threatens the whole legal system.

The continuing assault on the Bill of Rights' 4th Amendment is one of the more striking examples.  Goaded on by the devastating War on Drugs, too many judges (politically driven, or with social agendas, or merely concerned about not rocking the boat) have twisted the plain language of that historic privacy-based provision to gut its protections.  Other examples are in family law with its emphasis on (perceived) wealth shifting at any cost, in criminal law with its emphasis on facilitating convictions for marginal behavior and watering down criminal intent requirements, in personal injury law curbing the procedural rights of one side or the other, in civil rights law empowering corporations over individuals (or vice versa depending on your perspective).  A more general example, especially at the trial court level, is the increasingly lax and selective application (if at all) of long-standing rules of evidence (which determine what facts and arguments can be considered).

Too many written (and binding) appellate decisions these days begin with pages of lip service to the time tested legal principles the rest of the decision trashes in the writer's haste to reach the goal.  True justice becomes fleeting, unpredictable, inconsistent, random - in a word, an accident.

True justice is blind; it doesn't look to see what the outcome should be - based for example on who is involved, what is at stake, or someone's political agenda or social goals.  Take the blindfold off Lady Liberty and justice stands to become dangerously subjective.  Let legal decisions follow the careful application of sound principles and experienced reasoning and they will stand the test of time.

Trials and Appeals.

     Trials and appeals are where rubber meets road in the legal profession.  Although most cases settle or plea bargain before either (and sometimes during), the mere prospect of trial and appeal leads to such resolution.  That is because most people and businesses are risk averse, and avoid the uncertainty of leaving decisions and outcomes in the hands of trial judges, jurors, and appellate judges.  Also, litigating matters through trial and appeal is time-consuming and expensive for everyone involved.

     The outcome of most any trial can be appealed at least once.  The rate of reversal or similar is about 25% in state cases, and just over 10% in federal cases.  Fewer cases end up at the highest appellate courts, like the U.S. Supreme court at the federal level for example.  Mainly this is because those appeals are discretionary, meaning the appellate judges themselves decide whether to accept the appeal.  The likelihood of this is less than 10% (although once accepted, the reversal etc. rate approaches 50%).

     Many appellate decisions - the written opinion disposing of the matter usually authored by one appellate judge on behalf of a panel of three or more - are published and become precedent for future cases.  Transactional lawyers, regulatory lawyers and other non-litigators typically do not try or appeal cases, but they are guided by those precedents.

     Though risky business, trials and appeals are crucial to the effective and ultimately efficient operation of the entire legal system.

Put it in writing.

As one of my former bosses used to say, If it ain't in writing, it ain't.  Many times I've been asked about the need to put understandings or agreements with partners, fellow shareholders, employees, customers etc. into writing.  While for the most part verbal agreements have the same legal force and effect as written ones, they are much tougher to prove and therefore, to enforce.

Put it in writing.  Fancy legal terms are not required (but may certainly help).  Ask yourself, What is it we are agreeing to, and in the simplest, clearest language put it into a confirming letter, memorandum signed by the parties, even an email is better than nothing.  In my view, email has been a boon to the extent it compels people to organize their thoughts, be concise and informative, and put things in written form that can be saved, reviewed later, etc.

Depending on what's at stake, and to be on the safest side, ask an experienced lawyer to review the writing before you send it.  Ask if you can email it to him/her in draft form.  An ounce of prevention is worth a pound of cure.  As time goes by, memories fade, disagreements arise, you'll be glad you took a few moments to "put it in writing."

Ongoing Lance Armstrong Lawsuit Could Be Trouble for Cheating Athletes Everywhere

Today's newspapers report a Texas judge has refused Armstrong's request to dismiss an insurance company's lawsuit seeking the return of bonus money it paid him from 1999 to 2001.  Depositions (questioning the cyclist under oath) and other information gathering discovery are sure to follow.  As I've written before on this blog, fraud-based civil lawsuits against doping athletes and their enablers seeking return of monies paid would be a huge deterrent against such cheating.  Look for more cases soon, including against some equally high-profile players.

Jury Trial - a poem

Jury Trial

In the shadow of the Capitol

By the sunlight of the day

In the hushed and musty courtroom

The witness has her say.

The judge who’ll soon retire

The parties who’ve lost their fire

The jury in facts mired

The lawyers anxious and tired.

If eyes could answer what we seek

If silence spoke what one won’t speak

If what’s kept out is what seeps in

There’d be no need for trials then.

 

Entranced by legal ritual

In stiff and creaking chairs

What’s fair and what is just

Lies behind the jurors’ stares.

 

-Dave Sanderson, 5/16/05, during a trial in Denver District Court, copyrighted 2005

Depositions: How They Work and Some Do's and Don'ts

     In a deposition, you, the deponent, answer under oath questions asked of you by a lawyer, the examiner, usually relating to a pending civil lawsuit.  For example, maybe you witnessed a car accident, or worked with someone suing an employer, or have knowledge about a business dispute.  You may be required to share what you know with one side or the other in a related lawsuit.  Same goes if you are a party to a lawsuit.  Depositions can last hours or days., depending on the issues.  How does it work?

     An officially recognized court reporter is present at the office or conference room to record your answers and upon request (and payment of a fee) produce a written transcript of your testimony for use by others later in the case including at trial.  Most often deposition transcripts are used at trial to try to show you are fabricating or mistaken about your testimony, even if neither is the case.  They are used in pre-trial matters like motions to help argue for or against a point of fact or law.  Accordingly, the goal of the deponent should be truthfully to answer questions (without giving unnecessary information).  Here are some things you should and should not do:

You should:

- answer truthfully

- speak slowly and clearly

- leave room for nervous omissions, mistakes or faulty memory where appropriate, such as "at this time," "right now," "as I recall," "off the top of my head," "I do not remember all the details right now," and the like (especially with questions asking you to list or detail something)

- answer verbally (so the reporter can hear and take down your answer)

- let the examiner finish his/her question before answering

- repeat the question in your mind before answering

- answer "I don't recall," "I don't remember," or "I don't know" if that is the case, and leave it at that

- take a break (while a question is not pending) if you wish to use the restroom, compose your thoughts, talk to your lawyer, etc.

- review interrogatory and other sworn or recorded responses or statements already provided by you before the deposition.

You should not:

- repeat yourself

- explain an answer unless asked to do so

- fill in “awkward silences” with unnecessary testimony

-volunteer anything, or offer to get or look for anything or talk to any person.  Do not refer to or mention anything or any person you do not wish to produce or identify unless required

- bring anything to the deposition unless you clear it with your lawyer first

- anticipate the question, or what you think might be the "real" question

- give non-verbal cues (fidgeting, frowns, grimaces, smiles)

- talk about anything you and your lawyer have discussed

- ramble on or add unnecessary afterthoughts  (and most are)

- argue, be cute or tricky, use profanity or sarcasm

- answer a "yes" or "no" question any other way

- apologize for an honest answer.  The truth never changes, so stick to it.

* * *

Same Sex Divorce - Top Ten Issues

Now that gay marriage has gotten the green light from the U.S. Supreme Court (and various states) - wags might say its about time the right to suffer was enjoyed by all - its only a matter of time before more and more divorce courts across the country will be asked to address same-sex couple breakups.  The primary governing rules, processes and procedures already in place, and issues to be determined, include those listed below.  Whether you should involve attorneys (versus say mediating without them) depends on the usual issues of what and how much is at stake and how acrimonious are the parties' dealings.

 

- TOP TEN DIVORCE ISSUES-

1.         Commencement, timing, venue (where should the case be heard)

 

2.         mediation (non-binding discussions) v. litigation (hearings, trial, court enforced deadlines)

3.         marital v. separate property.  Generally, the former includes anything acquired during the marriage.

4.         property distribution (who gets what)

5.         debt allocation (who pays what)

6.         maintenance (fka alimony) and imputed income (how much could your spouse be earning)

7.         child custody (who has the children) and parenting time (when does the other spouse get to see them)

8.         child support (determined by number of overnights and relative incomes)

9.         tax issues (deductions, joint returns, refunds, etc.)

 

10.       attorneys’ fees and costs (should one side pay the other's).