5 Things You Need to know about – SUPERVISING YOUR ATTORNEY and MANAGING YOUR CASE

 

Here are some handy tips for successfully SUPERVISING YOUR ATTORNEY, and MANAGING YOUR CASE.

 

  1. RUN THE TABLE.” You may be impressed with your attorney, but make sure YOU take the initiative and make the major decisions.  (This applies to Medical Doctors, just as well as Attorneys.)  DO NOT sit back, relax, and enjoy the fact that someone else is handling a major part / component of your life and well-being.  Pretend you’re in Vegas, playing “Craps,” or pretend you’re Donald Trump, after winning three or four Primaries in a row …. this is an opportunity for you to shine, to be the boss, and the “mover and shaker.”  Do not pass up the opportunity.

 

  1. SPEAK-UP … BE THE “SQUEEKY WHEEL” THAT GETS THE “GREASE.”  Be in constant contact with your attorney, but do not be a pest.  When possible, send e-mails, rather than make telephone calls.  That gives your Attorney just a little bit more control of the timing of the conversation – meaning when exactly he or she responds – but  YOU must still control the agenda, as much as possible.  Just like the patients in a hospital that have the most visitors – and most assertive visitors – are treated the best by the Hospital Staff, so the Clients that communicate the most, speak up when appropriate, and make their “presence felt,” are the ones that are treated the best by their attorneys.

 

  1. TRY YOUR HAND AT LEGAL WRITING. By this we mean, rather than sending your Attorney a ten-page handwritten note, or a series of disjointed e-mails, try your best to send him or her a brief, concise e-mail, with a DRAFT DECLARATION attached.  Meaning, try your best to put the written information that you are conveying, in the form and format – more or less – that your Attorney will be required to put it in, in order to file it with the Court, or use it as the basis for a letter to Opposing Counsel.  If this is your very first lawsuit or divorce or legal matter of consequence, this may sound like “Greek” to you.  But for those of you who have had to hire an attorney once or more already, you will understand.  Try your best to convey your thoughts … in a form and format that your Attorney can readily and quickly USE.

 

  1. BE REASONABLE AND REALISTIC. I was once involved with a complex commercial lawsuit, and I recall that the parties scheduled a Mediation, before a Retired Judge, in hopes of settling at least some of the issues, without going to Trial.  The Mediator made it clear at the outset that his approach required each side to think hard, and then convey to him (the Mediator) a reasonable and realistic settlement offer, which represented (theoretically) the absolute minimum that they would require in order to consider the settlement to be worthwhile, from their perspective.  After several hours of preliminary discussions, the Mediator requested that reasonable and realistic settlement offer from each side.  On the side that I was involved with, the Attorney left it up to the Client (Principal of the Company) to formulate the settlement proposal.  The Client thought for five minutes, and then assembled a “Laundry List” of all the amounts and concessions that he would like to have.  Upon presenting his Laundry List to the Mediator, the Mediator said, “well thank you very much [sarcastically], we’re obviously done here,” and walked out of the room, and actually terminated the Mediation.  So the day was a waste for everyone involved.  It would have been better for the Client to be Reasonable and Realistic.

 

  1. EXAMINE INVOICES CAREFULLY, REQUEST REVISIONS, BUT THEN ACCEPT THE RESULT.   Meaning, do not pay an Attorney’s Invoice without reviewing it carefully.  If you have questions, or believe that the charges are too high, then discuss it with your Attorney.  Attorneys’ Invoices CAN be negotiated.  But, after your Attorney revises the Invoice amount downward, accept the result and pay it.  Not necessarily all at once … you can informally work out a payment schedule or accommodation, so that the impact of the Invoice can be spread out over time.  But then, you really should pay your Attorney some or all of the charges.

 

Here’s why:  much as your Attorney trusts you, and believes in you, and agrees with your assessment of your case, he or she still has to pay the rent.  Consciously or unconsciously, if you stop paying your Attorney, her or she will begin to place more energy in his or her other cases, where the clients pay regularly.  If this occurs, your Attorney is not intentionally failing you, rather, he or she is just focusing more energy on the clients that support his or her law practice.  If you quote me, I’ll deny that I ever said this, but, to some degree at least, it is the truth.

POSSESSION IS NINE-TENTHS (9/10) OF THE LAW

I don’t know about you, but when I was a kid back in the 1960’s, watching black-and-white TV, I heard (several times) the phrase, “Possession is nine-tenths (9/10) of the Law,” but I had no idea what it meant.

Most clearly, I remember the phrase from the old Western Television series, “Maverick” starring James Garner as the stylish and rambling Gambler “Bret Maverick.”

Well, now  –  fifty years later  –  I finally understand.

It means that you should never give up the “high ground.”   You are always better off being the person who possesses the “thing of value,” with others trying to get it from you.

For example:

  1. In Family Law, when your marriage is fraying apart, and you think your spouse might be planning to file for Divorce, ALWAYS stay in the MARITAL RESIDENCE.  Do Not leave, or agree to leave.  The “high ground” advantage goes to the party that is in the HOUSE, with the other spouse going to Court to take it away.  You also want to be the party that spends the most time with the children.  Always insist on the kids being with you for the majority of each week, even if you have to take time off from work to make it happen.  Eventually, the custody sharing arrangement will be finalized by the Court, and your percentage of time with the kids will determine whether you are paying or receiving Child Support, and how much … for a very long time.  If there is a Property Settlement, with one party keeping the House, and the other receiving an equivalent amount of Cash, you want to be the one that keeps the House … since it will be critical in keeping the kids with you for the majority of each week.  And don’t forget that on a School Day, the party that has the kids with them in the morning, and again in the evening, gets credit for the six (6) to seven (7) hours that the kids are in school each day !

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  1. In the Dissolution of a Business Partnership or Corporation, you are generally better off to be the one that keeps control of the business, and not the one that will be paid an annual payout from the operation of the Business.  If you are in control of the Business, you make the decision of how much will be invested in expansion, and how much will be taken out in profits, despite what the provisions of the Dissolution Agreement state.
  1. Whether it’s Real Property or Personal Property, it is generally best to be the Person “ON TITLE.” Let your business partners and/or relatives go to Court to say that despite the fact that YOUR name is on the Title, you were actually just a “NOMINAL TITLE HOLDER,” and it is really them that should be awarded the Beneficial Interest in the Real Estate or Personal Property.  With YOUR name on the Title, you are holding the “high ground.”
  1. If it’s Livestock, Whether Cattle or Horses, you want to be the one that owns the animals, just like it should be you that is on Title to the Real Estate.  Better to be the one with the livestock, with your business partners and/or relatives going to Court to claim that YOU are the “cattle-rustler,” instead of YOU going to Court to say that YOU’VE been “rustled.”
  1. If there’s been Fraud On Your Credit Card, and the Credit Card company asks you to review the monthly statement, and “circle” the charges that are “fraudulent,” just say, “no thank you” … the charges are ALL fraudulent, as far as you’re concerned … and let the Credit Card company be the one to spend the time “circling” the charges that appear NOT to have been “fraudulent.”  Just an illustration of when you might want the other side to spend the time, doing their homework, “taking the laboring oar.”
  1. Be the One to “Press Charges.”  I hesitate to even say it, since it just doesn’t seem right to suggest this, but … if you get in a scuffle, and Police break-up the fight, and ask, “do you want to press charges?,” YOU should be the one to say “YES.“  Years ago, a thirty-something, “Yuppy” friend of mine, on the City Subway, back in the day of “Boom-Boxes,” and very loud radios, got in a verbal argument with a teenager, and (apparent) gang member, about the loud noise from the teenager’s “Boom Box.”  The teenager “sucker-punched” my friend, and pretty soon it was an all-out fight on the subway platform.  The NYC Transit Police broke up the fight, and turned to my friend, asking, do you want to press charges?  My friend figured enough was enough, and no one was really hurt, so he said, NO.  The Transit Police then asked the (apparent) gang member the same question, and he said, “YES … I want to press charges.”  So my friend was arrested.  He should have said “yes” when asked.  It is always best to negotiate from a position of strength, meaning be on the “high ground.”  So, in this case, the criminal process “corollary” to the saying “Possession is nine-tenths (9/10) of the Law” means, do NOT “waive charges” until the other guy “waives charges.”

 So, always remember, “Possession is nine-tenths (9/10) of the Law,” and YOU want to be the one on the “high ground’ … the one that maintains “possession.”

NOT SO FAST, MY FRIEND – CITY OF LOS ANGELES SAYS: YOU ARE LIABLE!

You’ve read the book, “A Tree Grows in Brooklyn” …. but now, there is a Tree growing in front of YOUR home or business, in the City of Los Angeles. 

Unfortunately, the Tree growing in Los Angeles is pushing up the concrete sidewalk, and causing it to buckle, as if there’d been a recent earthquake.

Being a responsible person, you contact the City of Los Angeles and inform them of this Tree problem.  In most cases, nothing further happens, and that’s the end of the story.

If you are lucky, the response of the City of Los Angeles is to go out and inspect the problem and repair it if necessary.

But even then, what the City of Los Angeles does next is really quite surprising – the City holds YOU responsible.

Over recent years, the City of Los Angeles and other local Governments, in an attempt to shield themselves from liability, lobbied the State of California to pass California Streets and Highways Code Section 5610.  Section 5610 places liability for the sidewalk on the “Adjacent Landowner.”  And that person / entity is YOU !  To say the least, you have been Blindsided.  Your response is shock, since you did not put the sidewalk in, nor did you plant the Tree that is now affecting the sidewalk.  You are wondering how on Earth you could possibly be liable !  

The statute shifts responsibility for the maintenance and repair of sidewalk to the “Adjacent Landowner.”  The Statute, and subsequent cases interpreting the Statute, have held that the adjacent landowner owns all land from the edge of the sidewalk adjacent to their land to the middle of the street.  (What if the problem is a Sewer Connection under the street, which would be virtually inaccessible to the Adjacent Landowner ?

The City of Los Angles claims that it will gladly come out and repair and then bill you, the “Adjacent Landowner” for their expertise.  We are currently litigating a case involving a serious injury where an “Adjacent Landowner” Restaurant built a restaurant patio extension onto the sidewalk.  It turns out that neither the Restaurant, nor its construction company (now bankrupt), had a permit to do so.  

In the ongoing litigation, both the City of Los Angeles and the Restaurant have Cross-Complained against each other.

Logically, one would think that the entity that built the sidewalk, and planted the Tree, would be liable for injuries caused by their Negligence.  

However, logic and law are at times not in sync.

In our case, the City of Los Angeles claims that it had no notice of the danger caused by the un-filled, deep Tree well.  The Statute shifts the responsibility to the Adjacent Landowner to notify the City.  This makes nosense, since the City of Los Angeles had sent various employees to the area, on business for various other City departments.

Should there not be a duty on the City to inspect and identify hazards before an injury occurs ?

In our case, an 18-inch deep Tree well became unfilled (how?) and our client (Plaintiff), walking at night, in conversation with a friend, down the narrow and partially-obstructed sidewalk, and tripped and fell into the deep Tree well, sustaining serious injuries.

The City of Los Angeles claims that it is not liable, since it (allegedly) had no notice of the dangerous situation, while the Adjacent Landowner claims it thought it had a permit and does not know how the deep Tree well became unfilled.  Luckily for Plaintiff, case law places liability on the Adjacent Landowner when the land was altered for their benefit.

In our case, the construction of the Restaurant’s patio extension gave exclusive benefit to the Restaurant.

Does this situation make sense?   Should not the City of Los Angeles be liable, since they built the sidewalk, and planted the Tree ?   

Should the Adjacent Landowner be liable for a dangerous situation that it did not create ?

On the other hand, as in our case, what if the Adjacent Landowner did create the situation ?

What say you?

ANATOMY OF A SUCCESSFUL PERSONAL INJURY CASE (“ PI “)  

Here are the CRITICAL “ANATOMICAL” STAGES of a successful PERSONAL INJURY  (“PI”) CASE :

 

  1. INFORMATIONAt the scene of the car, truck or motorcycle accident, if you are able, get Driver License and Insurance information, and take photos. (Again, IF you are able.)
  1. AMBULANCE  /  EMERGENCY  TRANSPORTATION. If possible, accept Ambulance or Emergency Transportation to the nearest Hospital Emergency Department.
  1. IMMEDIATE  MEDICAL  ATTENTION. Whether it is a Hospital Emergency Room, an Urgent Care Clinic, or your Family Physician, you absolutely must seek Medical Attention immediately, meaning right after the accident, obviously the same day, but best timing is immediately … do NOT go home, do NOT “Pass GO … go directly to the Hospital or Physician.
  1. REQUEST  THOROUGH  MEDICAL  TESTING  AND  EVALUATION. Request X-rays, CT-Scans, MRI’s, and push for a very thorough medical evaluation, right at the beginning.
  1. CONTACT  ATTORNEY  /  GET  LEGAL  REPRESENTATION.   On the day of the accident, contact an attorney, and retain legal representation.  Your legal counsel must be “in place” from DAY ONE.  In terms of your medical treatment, your Personal Injury (“PI”) attorney will be able to recommend suitable medical staff from a network of physicians, technicians, chiropractors and care givers.
  1. LEGAL  COUNSEL  AS  “GATE-KEEPER.”  Your attorney and/or law firm will serve as your “Gate-Keeper,” keeping track of the Medical Invoices, requesting Medical Reports, and ensuring that not only do you receive proper medical care, but that the medical care that you do receive, is PROPERLY DOCUMENTED ON PAPER.
  1. ATTORNEY’S  LETTER OF  REPRESENTATION. Soon after your Accident, your Attorney will send a Letter of Representation to the Insurance Company representing the other parties involved in your Accident, and will ensure that future communications go directly to your Attorney, and NOT to YOU.   This ensures that an experienced Personal Injury Attorney will handle the upcoming communications, and will know what to say, and what not to say.
  1. ATTORNEY’S  DEMAND  LETTER. As soon as your Medical Evaluation and Treatment is well underway, and in some cases, concluded, your Attorney will get final Medical Reports from your treating Physicians and Health-care providers, and add up your Medical Expenses, plus your Lost Income and other Damages, and send a DEMAND LETTER on your behalf.  In many cases, this is all that is necessary in order to obtain a successful monetary recovery.
  1. CRISCI  POLICY-LIMITS  DEMAND  LETTER. In some cases, your Attorney will have a basis to send a Policy-Limits Demand Letter, warning the Insurance Company involved that they must pay the Policy Limit to cover your damages, and if they refuse, and the case goes to Trial, and the Jury awards an amount above and beyond the Policy Limit, the Insurance Company will be REQUIRED TO PAY THE FULL AWARD, despite the Policy Limit of the Insurance Coverage !
  1. FILING  LAWSUIT. Your Attorney will know, from long experience, when it is necessary to actually go to Court, to advance your legal rights, and when NOT.
  1. LITIGATION  LESSONS. Your Attorney has learned many lessons from the “trench-warfare” of litigation, lessons about how best to deal with what may be at times a daunting process.   You will need representation for Written Discovery, Oral Depositions, and Court Appearances.
  1. COURTROOM  DEMEANOR. Your Attorney will coach you on “Courtroom Demeanor.”  How you act in Court, or in a Deposition, may determine how believable you are.  One really decent and honorable client, listened in Court as his teenage children not only took the side of their Mom, but testified falsely on Mom’s behalf, actually lying on the Stand.  The client WEPT as his children testified against him, because he felt the pain and anguish of betrayal, and also deep sadness for a broken family …. But the client’s weeping conveyed the impression that the teenagers were telling the truth, even though they were not.   Ideally, the client’s Courtroom Demeanor would have been one of disbelief, outrage, even anger … had he kept his composure, and even used a little bit of drama, he would have conveyed the (accurate) impression that his teenagers were lying to the Court, and betraying their Dad out of anger and disrespect.  There was a lot at stake … in this case, the Dad was forced to move out of the Marital Residence, which was his Separate Property (inherited from his father).  The Mom didn’t fare much better, since there was no income to pay the mortgage, and the Marital Residence was ultimately lost by the family.

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  1. ESTABLISHING  DAMAGES. Your Attorney will help you to establish evidence of DAMAGES, and prove DAMAGES at Trial.   How bad are your injuries?  Juries are increasingly cheap when it comes to awarding damages in personal injury cases.   Jurors are not happy to be on Jury Duty in the first place.  As Plaintiff, you had better have a compelling story to tell the Jury, through your own testimony, as well as the testimony of witnesses and experts.  If you do not have such a story, the Jury will take it out on you, and your Attorney.
  1. ESTABLISHING  LIABILITY.   Your Attorney will help you to establish LIABILITY on the part of the Defendants.  What did the Defendant do, or not do, which would trigger a finding of FAULT (LIABILTY) against them?   Major damage cases have been lost because a Judge or Jury has found that there is no liability on the part of the Defendant.
  1. INSURANCE. Defendant’s INSURANCE Coverage is of critical importance.  Although the law clearly states that neither Judge nor Jury can imply or infer that there is, or is not, INSURANCE Coverage for a Defendant, most people understand that this is a critical aspect of the case.  Without INSURANCE, collecting on a judgment will be a problem.  A Defendant could file for bankruptcy and have the Judgment discharged, or a payment agreement could take years to satisfy.
  1. PUNITIVE / EXEMPLARY DAMAGES. Only your Attorney will know whether or not to allege Gross Negligence, and whether or not to seek PUNITIVE / EXEMPLARY DAMAGES.  In an appropriate case, PUNITIVE / EXEMPLARY Damages may be applicable.  Punitive damages are those that are designed to punish or deter the defendant and others (similarly situated) from engaging in the type of conduct that the Defendant engaged in.  PUNITIVE / EXEMPLARY DAMAGES are to be awarded in an amount commensurate with (in accordance with) the Defendant’s ABILITY TO PAY, and in an amount sufficient to deter such conduct in the future.  However, PUNITIVE / EXEMPLARY DAMAGES are not covered under the typical INSURANCE policy.  If a Defendant acted intentionally, those actions are not covered under insurance as well.  The courts have concluded that this would be against public policy.  This is why in a given case, pleadings may allege actions of the Defendant as both negligent (covered by insurance) and intentional (not covered by insurance).
  1. DO  NOT “GO  IT  ALONE.”   Let’s face it, you are going to need a skilled and experienced Accident ATTORNEY to help you navigate through some pretty rough seas, and what can sometimes be a long journey.  You should hire your Attorney at the very start, and take full advantage of what the American legal system has to offer you.

LGBT PRIORITIES … RULE OF REASON – Transgender In the US Army New Law

Our American Society’s Lesbian, Gay, Bisexual and Transgender (“LGBT”) Community must decide what its priorities are.

What is most important ?

Is it an urgent need to have LGBT COMBAT SOLDIERS on the FRONT LINES in Syria, Iraq and Afghanistan ?

Is it to have equal access to RESTROOMS of choice ?

Is it to have America’s FIRST LGBT PRESIDENT elected ?

Is it to have LIBERTY, FREEDOM and EQUAL OPPORTUNITY, regardless of Gender and/or Sexual Orientation ?

Regarding LGBT COMBAT SOLDIERS on the FRONT LINES in Syria, Iraq and Afghanistan, does anyone really want that ?  Are members of the LGBT Community so determined to have full integration of America’s Armed Forces, that they will seek out Front-Line Combat positions ?  Is full integration of America’s Armed Forces really such a good idea, or will there be at least the potential that we would lose a degree of Battle-hardened, Combat-readiness ?

Regarding equal access to RESTROOMS of Choice, do new laws and regulations really help anyone ?  Perhaps we should just leave things the way they are, and let the individuals involved sort it all out.

Regarding America’s FIRST LGBT PRESIDENT, will that be achieved if Hillary Clinton is elected ?

Regarding LIBERTY, FREEDOM and EQUAL OPPORTUNITY, regardless of Gender and/or Sexual Orientation, isn’t that the most important thing, for the LGBT Community, as well as everyone else ?

And perhaps we should all apply a “RULE OF REASON,” which is a time-honored LEGAL TERM referring to a well-thought out decision, using COMMON SENSE, avoiding extremes, and coming up with the BEST SOLUTION.

Let’s not be so driven by specific MILESTONES, as by COMMON SENSE. 

If Discrimination is alleged, capable attorneys can argue the issues in a Court of Law. 

After all, our Adversarial Judicial System works best when  opponents hire experienced counsel, who argue the different sides of the issue, to be ultimately decided by either a WISE COURT, or a JURY of PEERS, or both.