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).