Archive for the 'Viewpoint' Category

New York Times op/ed piece about self-help representation

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Two state judges opine about the state of accessibility to the legal system.

As the economy has worsened, the ranks of the self-represented poor have expanded. In a recent informal study conducted by the Self-Represented Litigation Network, about half the judges who responded reported a greater number of pro se litigants as a result of the economic crisis. Unrepresented litigants now also include many in the middle class and small-business owners who unexpectedly find themselves in distress and without sufficient resources to pay for the legal assistance they need.

As judges, we believe more needs to be done to meet this growing challenge: an inaccessible, overburdened justice system serves none of us well. California took a major step forward in October when it became the first state to recognize as a goal the right to counsel in certain civil cases. (The state also committed to a pilot project, financed by court fees, to provide lawyers for low-income citizens in cases where basic human needs are at stake.)

Go here to read the entire article.

Should you go it alone – loan modification?

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Interesting article here about the advisability of representing yourself when attempting to get a loan modification and avoid disclosure.  Admittedly, the author is in the loan modification business, but that doesn’t  negate what he has to say about the difficulty of the process.

For example:

The banks want you to work on the loan modification by yourself, so they can avoid dealing with a professional who knows the game. By all means, feel free to have a go at it if you wish. The truth is you are very likely to have a frustrating and unproductive experience. Look, banks lose money when they modify a loan—a lot of money. You just cannot expect them to make that process easy for you. What is going to happen is that the bank6 will “lose” your faxes, make you wait hours on the phone, require copious documentation, etc. And, ultimately, if you do not know the parameters and other criteria the bank is looking for, your request will either be denied or the bank will offer a modification that does not provide any real relief. In that case, you will have wasted a great deal of time and energy, you will still be vulnerable to losing the home and, worse still, you may have made it impossible for a professional to go behind you and clean up the mess.

Tips for helping the law librarian help you.

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Here are some suggestions on how to make your trip to the law library for effective and more efficient.

Bring the paperwork with you.

Patrons often come to the library to seek help because they’ve been sued or charged with a crime.  When a statute is involved, we really need to know what statute in order to help you.  Even if no statute is involved, we need to know what the cause of action is.  If you have paperwork, bring it with you.  We won’t read every word but it will help if we see precisely what statute or issue is involved.

Spare us the intimate details.

Please don’t launch into a detailed story about what someone did to you and why they did it.  Just give us the gist of the matter and if we need more information, we’ll ask for it.  This is partly to save time but it is also because people tell us some pretty intimate things that we don’t need to know in order to help.  I really don’t want to know more about your personal life than I do about my best friend’s!

For example, just tell me that your ex-wife won’t let you see your kids and you want to know what to do about it.  I don’t need to know all the details about what a horrible mother your ex-wife is and how nasty her new boyfriend is, and how your ex-mother-in-law hates you.

Also, please try to stay calm while relating your problem.  We know these issues can be emotional, but remember that we didn’t have anything to do with the creation of your problem.  If you start getting angry or agitated, we will take a step further into professional detachment and probably be less effective in helping you.  If you really go over the top, we will have to call for security.

Understand that we can’t give legal advice, even if we’re lawyers.

I’m licensed in Maryland and Tennessee, but I work as an academic law librarian in California.  I didn’t study California law in my Pennsylvania law school, and I’ve never even taken the California bar, let alone passed it.  I haven’t practiced since 1988 and unless you’re dealing with a construction law problem, a real estate development issue, or a matter involving a cable TV franchise contract, your issue is probably something I’ve never handled before.

Most law librarians probably have a history like mine.  Some have law degrees; some don’t.  Some who have law degrees took and passed a bar exam and were admitted to practice; others did not.  Some have experience in practice; some don’t.  Our expertise is legal research, not any particular area of the law of the state where we work.

When you ask us a question that we’re not permitted to answer, we will tell you, “I’m sorry, but I can’t give you legal advice.”  Your response should not be, “I don’t want legal advice; I just want to know X.”  Trust us, we’ve already evaluated your question, and to tell you X would require us to give legal advice.

We can’t tell you what the statute of limitations is for your matter.  We can show you how to use the resources so you can try to determine for yourself.  We can’t tell you whether the Americans with Disabilities Act applies to your situation.  We can get you the Act and help you find secondary sources that might enable you to answer your question.  We can’t tell you what document or pleading you need, or tell you which form to use.  We can’t tell you how to fill-out a form.

Realize that the court clerk isn’t always right.

Patrons frequently tell us that the court clerk’s office told them they could get forms at the law library.  That’s both true and not true.

Patrons usually think of a form as something like their tax return.  All they have to do is fill in the blanks.  Some libraries will have forms like this because they’ve been created by the state court system or some other organization such as legal aid.  There might be forms like this for some matters but not for others.  We usually won’t have copies of the forms you can take with you.  We might have a book with these forms and you can make photocopies.  If an outside organization has created forms and helpful information, we might have a packet you can take.  (I’m thinking of the useful “simple divorce” packets that we had at the University of Nebraska law library, but they were prepared by a task force that included legal aid and the state court system, if I remember correctly.)

More likely, what we have is “form books.”  These are books for lawyers which contain samples of language used in different types of documents.  Lawyers use them to piece together a completed document.  They have to determine which pieces to use and how to use them.  They’re not intended to be used blindly without adjustment.  They can get you started and give you a framework that you can work with.  I can’t help you pick out the pieces you need and revise them to fit your circumstances.

Please don’t get angry with us because the court clerk told you we would have something that we don’t.

Remember that you might not be our priority.

If you go to an academic law library (one that is part of a law school), please remember that our priority is our students and faculty.  We often teach, so we might have to leave for class and hand you off to another librarian if one is available.  We might have to leave your side while we help students.  We’ll give you as much time as we can, but our students, faculty, and preparing for classes are our priorities.

And lastly, some advice from the best law librarian I know, Sharon Blackburn at Texas Tech University School of Law:

Understand that it isn’t easy and it’s going to take some time.

Lawyers get college degrees and then spend three years in law school learning substantive and procedural law.  Don’t expect to master your problem in mere hours.

Sharon tells the story of a patron who wanted to research federal income tax laws regarding charitable giving.  And he wanted it all in 30 minutes!

Don’t wait until the day before your answer is due or the criminal trial is scheduled to come to the law library.  If you know what you’re doing, expect to spend hours, if not days, preparing.  If you don’t know what you’re doing, plan to spend weeks, if not months.

Parental Alienation Syndrome

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An interesting issue arising in some custody battles in recent years is something called Parental Alienation Syndrome.  As described in this article, PAS is a not-yet-officially recognized “ailment,” inflicted upon children by custodial parents during and/or after divorce.  Basically, PAS occurs when the parent who has greater access to the child uses that access to negatively influence that child’s feelings about the other parent.

Although doctors and psychiatrists are in dispute about the validity of PAS, it is arising in custody cases more and more often.  Still, it can be difficult to prove PAS because the lack of official recognition makes it difficult or impossible to secure expert testimony on the subject. 

This is one of those areas where the law seems, to me, hopelessly out of touch with people’s day to day lives.   In order to get evidence of PAS admitted into court, it must be a scientific syndrome, described and analyzed in technical language and supported by empirical studies.  Yet ordinary people know that, whether or not it rises to the level of a syndrome, the concept of parental alienation exists.

Unfortunately for children of divorce, many parents are unable to control their anger at one another when their marriage fails.  Even more unfortunately, one parent may take out this anger by manipulating the child into blaming or disliking the other parent.  Does the court really need to see studies showing that this type of behavior is harmful to the parent-child relationship?   

At any rate, I thought this was a useful issue for shlep discussion because I suspect that pro se patrons who are dealing with child custody issues often worry about the influence the other parent is having on the child’s feelings.  It might be helpful to these people to learn more about PAS and its effects, even if they aren’t ultimately able to get everything into the courtroom.

In praise of legal research guides

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Legal research guides, sometimes called “pathfinders,” are exactly what they sound like – guides to legal research. A number of different organizations publish these guides, but a consistent source for particularly thorough and helpful guides is academic law libraries. As a new academic law librarian myself, I consistently use the guides published on the web-sites of other law schools when researching an unfamiliar topic. Almost every academic law library publishes them to some extent or another, and they can be a great resource for pro se patrons in learning how to find things like cases, laws, regulations – or even just in developing a research strategy when you don’t know where to begin.

If you need help with a particular type of problem, try googling for a research guide. For example, say you are going through a divorce – try googling “family law” and “research guide” or “family law” and “pathfinder.” I just tried the first search, and a number of helpful options came up.

If you need to find something more directly about your state (and most of the time, that is the case), you could try adding the name of the state to your search. Another, and probably more helpful, option, is to go to the home page for an academic law library in your state. Most such law libraries will have state specific, as well as more general, research guides, but they may not appear in Google. Because each law library works differently, you will probably have to poke around the web-site to see where the research guides are located, but usually, they are listed in the “Reference” or “Search” section of a given law library’s homepage.

As an example, check out the research guides on the UCLA Law Library web-page, which cover a variety of California and federal topics.

the Florida Bar and you the people

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 FloridaMap  Earlier today, Rick Georges posted about a newspaper article that focused on the recent opening of several We the People document preparation stores in the Tampa Bay area.  See “DIY stores walk fine line between law help, outlaw: They can offer document prep but not advice,” St. Petersburg Times, by Carrie Weiner, March 19, 2007.  For my money, you can get a more well-rounded picture of We the People USA by reading two additional articles:  ”Moving In on New York Lawyers” (New York Times, Feb. 15, 2004; discussed at f/k/a); and “First Kill the Lawyers… … on the price for basic legal paperwork” (Money/CNN.com, April, 1, 2004).

  • For example: The St. Pete Times tells us that “The company has been the target of multiple lawsuits by lawyers, state bar associations and disgruntled customers who said its documents didn’t pass legal muster.”  The NYT article also states that We the People has been the “target of 29 lawsuits by lawyers, state bar associations and other critics.” However, NYT adds the relevant fact not found in the SPT article: “Twenty-six of the [29] lawsuits have been dismissed or have been won by We the People.” 

My main focus in this post, however, is on the section of the St. Pete Times piece concerning the Florida Bar:

“Those looking to save money can already find a variety of resources, said Bruce Lamb, chairman of the Bar’s committee on the unlicensed practice of law.

“Organizations such as Legal Aid can provide low-cost advice from an attorney, Lamb said. Those who want to represent themselves can get most of the documents offered by We the People at courthouses or through the Florida Bar for free, he said.

” ‘The value of these places, when you look at it, is pretty low,’ Lamb said.”

ProfPointerIt’s no secret that I am at times suspicious of the motives of the organized bar — especially when it comes to new sources of competition from outside (or even inside) the profession, and to the growth of the self-help law movement.  See, e.g., our post “a guide or a guild: where does your bar group stand?” (Sept. 8, 2006).  So, I was not very impressed by the Florida Bar’s UPL chairman’s suggestion that those who need “to save money” can get help from Legal Aid.  As you know, only a small portion of the total population who cannot afford lawyers (see prior post) is poor enough to be eligible for Legal Aid; and, of course, only a relatively small percentage of the eligible actually get a lawyer from Legal Aid. 

Even bar groups deserve the benefit of the doubt, however.  So, I thought I’d follow up on Mr. Lamb’s apparent endorsement of pro se litigants using the legal documents that are available at “courthouses or through the Florida Bar for free.”   I was especially optimistic, because (as we noted in “getting self-help help“), the Florida State Courts have a nice little Self-Help Program, that focuses on Family Court matters (e.g., divorce, custody, child support, paternity) — with many forms created with the pro se litigant in mind, and  a network of local self-help centers that provide a variety of onsite services. 

FloridaMapN  Just as a Florida resident who read the SPT article and wants to save money might do, I went to the Florida Bar website, to find out how to obtain and intelligently use the available forms to represent myself.  Here’s what I found [warning: it isn't pretty]:

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NJ Fed. Court bars undisclosed ghostwriting

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ghostProf  According to a summary in Freivogel on Conflicts (March 13, 2007), the Federal District Court for New Jersey has issued a decision stating that ”undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey.”  The case is Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643. (via Carolyn Elefant at LegalBlogWatch and Alan Childress at  Legal Profession Blog)  A ghostwritten pleading has been drafted in whole or part by a lawyer for a party who is appearing pro se in a court proceeding; the document is filed by the party without attributing it to the attorney.   Writing the pleading is an “unbundled” service provided by the lawyer to the unrepresented litigant.

According to Freivogel:

ghostProfN ”The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se litigants more slack. That puts the other side at a disadvantage when the pro se litigants’ pleadings are ghostwritten by lawyers.”

If you have access to the court’s opinion in Delso, please share the relevant parts with us.

As we reported on January 2, 2007, Rule 3.37 of the California Rules of Court permits “Undisclosed representation,” including ghostwriting and coaching.  Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.” (emphasis added)

You can find further discussion of ghostwriting, in Arizona Bar Ethics Opinion 05-06 (July 2005).  The Arizona Bar concluded that “The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona [pro se].”  The ethics opinion noted that other jurisdictions have disagreed, and collects citations to many rulings in other states (via Mike Frisch at Law Profession Blog)

ProfPointerMy perspective (as stated today in a Comment at LegalBlogWatch):  In general, if a judge gives a pro se litigant “more slack,” it should only be where and when he or she needs it in order to have the case fairly presented and heard — e.g., understanding procedural rules, presenting written arguments, asking questions at trial.  The pro se party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g., cogency of arguments, form of citations, depth of research, etc.) that has in fact been written by a lawyer.  Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading.  Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. [our prior post discusses and links to sources on the proper role of judges dealing with unrepresented litigants]

the dis-accessed middle class of North America

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Just yesterday, in our post on Family Court Civil Gideon, I noted that the American who is non-poor (but not rich) very often cannot realistically afford a lawyer, but is not helped by the Civil Gideon movement.   By coincidence, the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, warned on Thursday that the middle class in her country is also often denied effective access to justice due to the high cost of retaining counsel.  See “Access to justice is critical for Canadians: chief justice,” National Post/Canada.com and “Top judge sounds alarm on trial delays,”  The Globe and Mail,  (March 9, 2007)

CanadaFlagG   The Chief Justice warned: “Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to.. . Hard hit are average middle-class Canadians.”

According to the National Post:

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Family Law Civil Gideon: are free lawyers always the best approach?

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fencePainterS In “Family law not for amateurs” (March 5, 2007), lawyer Paul J. Martinek used an op/ed piece in the Boston Herald to introduce the Massachusetts public to the Civil Gideon concept, focusing on its relevance to family court matters.  Martinek is the editor of Massachusetts Law Brief

  • Civil Gideon” is the right – and the name of the movement to obtain the constitutional or legislative right — of low-income individuals to the appointment of a lawyer when basic human needs (such as those involving shelter, sustenance, safety, health or child custody) are at stake in a court proceeding. The name comes from the analogy to the right to counsel in criminal cases, which was announced by the U.S. Supreme Court in Gideon v. Wainwright. [see our prior post on a pilot project in California] 
  • ProfPointer On August 8, 2006, the House of Delegates of the American Bar Association unanimously passed the following Civil Gideon Resolution: “RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.” (emphasis added) See “A Civil Law Gideon,” ABA Journal, Aug 8, 2006 (via Trial Ad Notes)

SoapBox   Warning: I’m about to upset some of my usual allies:  I agree with the fundamental — and I hope uncontroversial — assertion made by those in the Civil Gideon movement that our government must ensure fair and effective access to justice for all, including the poor, and especially in matters related to basic needs and rights.  But, “Family law not for amateurs“ underscores my growing discomfort with the notion that access to justice can best be achieved in our society by giving publicly-funded lawyers to low-income Americans in most of the circumstances in which they are likely to find themselves in court.  

Like the proponents of the ABA’s Civil Gideon Resolution (e.g.here and here) Martinek argues that no lawyerless litigant can get a fair hearing when the other side has a lawyer — and that having a lawyer will ensure such fairness.  Although he mentions that there are “some practical downsides” with Civil Gideon (such as its ”staggering” cost, difficulties telling who is eligible, and disincentives to settle when you have a free lawyer), Martinek concludes that “something” must be done and:

ESPMazeNS ”The issues that are litigated in family courts – especially those involving the right to see and help raise one’s children – are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.”

I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts or to work much harder to structure the judicial system so that most individuals can achieve fair and effective justice without lawyers.  (see our About page)  Based on my experience as a self-help law proponent, a legal ethics watchdog, and an observer of the legal profession’s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here are some of the problems that I have with the lawyers-for-all-style Civil Gideon:

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The Costs of Conflict

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Stewart Levine, an author and consultant in the area of alternative dispute resolution, has piece The Many Costs of Conflict in the December issue of Law Practice Today.

The cost of conflict is composed of the following:

  1. Direct Cost: Fees of lawyers and other professionals
  2. Productivity Cost: Value of lost time. The opportunity cost of what those involved would otherwise be producing.
  3. Continuity Cost: Loss of ongoing relationships including the “community” they embody
  4. Emotional Cost: The pain of focusing on and being held hostage by your emotions

It’s worth thinking about all these costs when you contemplate litigation. Even if you proceed pro se to avoid paying for a lawyer, you can’t avoid the other costs (and sometimes they’ll shoot up because of your decision to go pro se). Is your dispute with your neighbor who trimmed your tree really worth the hours you’ll spend working on and worrying about the litigation and the bitterness that the litigation will foster? Maybe so. But think about it.

NYT focuses on a pro se outlier, sheds little light

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 NYTlogo  On the surface, the New York Times devotes a lot of column space today to an important issue involving the pro se litigant.  The reporter states: “As the number of pro se litigants has grown in recent years, judges across the country have struggled with the question of how far to ease the rules to help the self-represented while remaining fair to the party with counsel.”   Unfortunately, rather than addressing the topic in a manner that might enlighten the public or promote needed judicial reform, “The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting” (Feb. 19, 2007) is simply another juicy tale of an over-the-top pro se outlier.

The article focuses on Michael Melnitzky, 69, who “was once a recognized art expert” and conservator but now declares “I am a litigator.”  As the article stresses “when his wife filed for divorce in 1994, Mr. Melnitzky became something else: a litigator. A prolific one. And although he has no law degree and only himself as a client, he has never been busier.”  Here are excerpts from the article about Melnitzky’s situation:

  • heartarrowV  Through a series of self-fashioned lawsuits and appeals, issues that might have been settled with his divorce have gone on for 13 years, 3 years longer than his marriage.
  • He has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.
  • When not in court, he applies the same meticulous attention that he once put into restoring great Impressionist works to researching the law. Legal texts fill his cluttered brownstone on the Upper East Side, whose top floors he rents out.
  • donkeyS  In the last 10 years, he has lost 17 of 18 lawsuits — the remaining one is still active — and 30 of 32 appeals. The two appellate victories ultimately ended in defeats after the cases were returned to lower courts.
  • But Mr. Melnitzky is unusual because of the volume and complexity of his litigation, and because he arguably could afford a lawyer but has seldom chosen to use one, even in the face of repeated failure.  

Justice Walter B. Tolub of Manhattan Supreme Court wrote in a 1999 ruling that the advantages of Mr. Melnitzky’s decision to represent himself “soon became clear”:

SoapBox  “Mr. Melnitzky was free to plead ignorance of the law when it suited him, at the same time picking and choosing those points of law which he ‘discovered’ were in his favor,”  

The Times tells us that “Legal experts say Mr. Melnitzky is hardly alone among people who become fixated with the legal system, filing lawsuits again and again without the aid of a lawyer to try to reverse an earlier loss.”  This rather small group of “fixated” or “obsessed” pro se litigants clearly raises far trickier problems in docket management and courtroom control and fairness than the everyday self-represented litigant, who appears in courthouses across the nation in tens of thousands of lawsuits each year.  The typical pro se litigant has neither the time nor the capacity to manipulate the court with selective presentation of the law based on extensive research and deep knowledge of the issues.   

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sutton’s “no-asshole-rule” works pro se, too

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donkeyS  There will almost certainly be much discussion this week of Robert I Sutton, Ph.D’s new book “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” (Warner Business Books, release date Feb. 22, 2007).  At law-related weblogs, the talk will be spurred by Sutton’s identically-titled article in the latest American Lawyer, which was also posted this weekend at Law.com (Feb. 20, 2007).  Sutton is a professor of management science at Stanford University.  He argues that “assholes” are bad for business, regardless of their individual effectiveness.

In a favorable book review at Life at the Bar, Julie Fleming Brown explains:

NoAssholeRule ”According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole.  (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.)  These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others.  Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people.  The latter, he argues, must go [from the workplace].

  • The book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website.  I expect webloggers will be tagging eachother to find out the results. Let me say in advance that I do not plan to take the test (much less reveal my results). 

Although the book deals with all sorts of jobs, it can be no surprise that many people think about lawyers when they hear reference to Sutton’s title character.  In his weblog post “American Lawyer on THE NO A**HOLE RULE” (Feb. 11, 2007), Sutton notes that doctors appear to be more abusive in the workplace than lawyers, but nevertheless explains that “there are some special challenges for law firms that want to enforce the rule.” He concludes, “Indeed, you might say that one key to law firm management is learning how to turn your assholes on and off!”  [Over at f/k/a, you can find my fuller treatment of Lawyers and the No Asshole Rule.]

In another posting, “Lawyers and The No Asshole Rule (Feb. 15, 2007), Sutton says that lawyers are naturally interested in The No Asshole Rule.  He quotes from a 2004 piece by Aric Press, editor of American Lawyer, suggesting that law firms do “jerk audits.”  One reason for the difficulty in applying The Rule within law firms is that “people hire lawyers to be tough and nasty –to do their dirty work.  But people who are best suited for such work aren’t always capable of turning off their venom when they deal with staff members and fellow attorneys.”

DeleteButtonN Sutton is right that many people hire lawyers “to help intimidate rivals . . . through demeaning interpersonal moves meant to unnerve and intimidate opponents — dirty looks, put-downs, teasing, glaring, and intense eye contact.”  As he suggests, there may even be times when those skills may help a lawyer ”in the courtroom, a deposition, or a negotiation when used at just the right moment.”  However, I want to stress that such tactics will virtually always harm the cause of any pro se litigant. 

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ten things about judges

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          Earlier this week, SelfHelpSupport.org added the document TOP 10 THINGS YOU SHOULD KNOW ABOUT JUDGES to its Library.  The list was written by Kelley Carpenter, Public Information Officer, Jackson County, Missouri, Circuit Court.  This one-page document “provides insight into the limitations of judges by spelling out 10 simple things everyone should know” about them and their role. 

ProfPointer All who participate in our judiciary/justice system [including judges] should keep these Ten Things About Judges in mind.  Here are a few Things that may be especially relevant to the pro se litigant:

1. No matter what we decide, at least one side is going to be unhappy, sometimes all sides.
2. An “activist judge” is a judge that makes a decision the critic doesn’t agree with.
4. We have families and private lives we wish to protect, so please don’t show up at our homes.
5. We make decisions based on the law and the evidence, not public opinion or our personal views.

7. Both Judges and the media are information gatherers, information disseminators and decision makers. We are both the messengers, and people often want to shoot the messenger.
9. The Judge can only consider evidence which is admissible in court. . . .
10. The constitution is not a “technicality!”

p.s.  My only quibble is with #7, which seems to overlook the fact that, as ”decision makers,” judges are not simply “messengers.”  Finding facts and applying the relevant law are not merely the automatic functions of a mesenger.

 

Lincoln’s message to lawyers and litigators

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 AbeLincoln  Abraham Lincoln will be quoted and discussed a lot today, the 198th anniversary of his birth.  I thought I’d share with you a few excerpts from his Notes for a Law Lecture (July 1, 1850).  Aimed at lawyers, the Lecture has good advice for pro se litigants, too. (emphases added)

  •  ”The leading rule for the lawyer, as for the man of every other calling, is diligence.” . . . [Perform] “the labor out of court when you have leisure, rather than in court when you have not.”
  •  ”[P]eople are slow to bring [a lawyer] business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.”
  • Never stir up litigation. A worse man can scarcely be found than one who does this. . . . A moral tone ought to be infused into the profession which should drive such men out of it.”
  • pennyS ”The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance.”
  • There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

pennyS You can learn more about Abraham Lincoln’s lawyering (including what kind of fees he charged) at f/k/a, in the posting A Lincolnesque Law Practice?  And see, Lawyer Lincoln Was a Bargain

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