Noxious Liquids

I used to have a part-time gig working for the taxi drivers union. My friend's wife's Dad was the founder and President of the union. The union provided health insurance to the drivers, and represented them in contract negotiations with the City. They also offered the members a "legal plan". The main benefit of the legal plan was a free lawyer for traffic court. Actually, a law firm represented the union, and part of their retainer agreement required them to provide lawyers for traffic court. Sometimes the firm just couldn't make all the traffic court appearances. When that happened, yours truly got the call.

I used to mostly go to "Manhattan South" (down by Astor Place.....terrible parking, but a big Starbucks across the street) or "Manhattan North" (126th Street in Harlem....parking not too bad, but no Starbucks). Most of the cases were red-light tickets (there's a surprise). I got pretty good at them, topping out at winning 75% of the time. The way I learned to do it was watching lawyers who went to traffic court every day, and if they were nice, asking for some advice. Most were nice, and after a few visits, I knew how to do it.

OK...it's not what this post is about, but I will tell you how I used to win many of the cases. The easiest ones were when the officer didn't show, but that didn't happen too much. Traffic officers have their regular court days, it's part of the job. Any tickets where people plead not guilty get a date that is that officers day. The really good traffic cops were hard to beat, and my 25% losers were with them. They would lay out the case perfectly, and if it ever came down to credibility (drivers word versus the cop, the driver is dead meat). As one of the regulars told me, you NEVER want a traffic case to hinge on credibility.

The way to win, is to know when the officer has left out some element of the "prima facie case". This would be because either the ticket, or the officers testimony, was lacking an essential element of a case. I had a little mental checklist......date, time, where officer was, light in working order before and after, vehicle kept in continuous view, things like that. Officers who are not strictly traffic guys, cops doing their work who pull someone over and give a ticket, would frequently fill out the ticket wrong OR not testify to the required elements. If they left one out, the Judge would ask them "is there anything else?", and if they couldn't think of anything else, I'd make a motion to dismiss and Beldar Conehead Singh could go on his merry way.

Unfortunately, the union president called me in one day and said, "I'm sorry, but we can't pay you to go to traffic court any more."

Being a stellar businessman I replied "But I can't do it for free."

He said "Of course not, what happened is we need our union law firm to cover ALL the traffic court stuff, and we don't have it in the budget to pay you for the extras, THEY have to get their own people. But don't worry, YOU are gonna do the ECB cases".

I knew that ECB stood for Environmental Control Board, but I didn't see what that had to do with the taxi union.

I said "What are the ECB cases?"

"Well, those are mostly noxious liquids cases."

And so, I got to make the call that every young lawyer dreams about....

"Hi Mom, guess what? I'm starting a new thing, I represent peeing cab drivers."

Actually, there were two main kinds of noxious liquids cases. I called them either "containers" or "squirters". Containers were when a driver poured a "noxious liquid" from a container, usually a coffee cup, into the street. I sometimes wondered how the officer KNEW it was a noxious liquid and not just cold coffee. I also wondered what the officers told THEIR mothers about their job.

A squirter ticket was when the officer actually saw the driver delivering his noxious liquid streetward. Those were difficult to defend, especially if the driver insisted that he didn't do it. I mean, what could you say......I was just.......resting......or something.

I did the noxious liquids cases for about two months. Actually, it was kind of fun. The main reason I stopped was that ECB was somewhere mid-town, and you couldn't park. It was worth doing it, just to be able to tell you about it fifteen years later.

Thanks for listening.

Ratatouille

I was a little concerned as we approached the movie-plex to buy tickets for Ratatouille, the new G-rated Pixar/Disney movie. The lobby was packed with folks who looked like they were out for a change of scenery from father/son WWE and Ultimate Fighting. Fortunately for us, the throngs were awaiting "Transformers", enabling us to scoot nimbly past, into air conditioned civility and elbow room.

THIS movie is what the powers behind Disney/Pixar had in mind. The highest level of animation and effects, combined with an engaging script, exploring themes that would engage audiences of all ages. I did not just "tolerate" the story, I got caught up in it, as did my wife and 13 year old daughter.

In Ratatouille, a young rat (Remy) approaching manhood (rat-hood?) has an extraordinary talent. He has a highly refined sense of smell, and an appreciation for the culinary arts. He is inspired by a famous TV chef and his best-selling book "Anyone Can Cook". He wants to leave the rat life of garbage eating and stealing food, which causes conflict with his controlling father, who wants him to stay and become part of rat life and his extended family. He confides in his dopey brother, who wants to support him but does not fully understand Remy.

A series of rat catastrophes cause Remy to be separated from his clan, and he discovers that "all this time we have been under Paris!". He happens upon the restaurant of the famous chef, now deceased, and the back workings of the kitchen of a famous Paris restaurant. The plot is actually quite intricate, and I will not spoil it. Remy becomes deeply involved in the conflicts of many players in the restaurant drama, and he DOES get to use his culinary skills. Many of the characters, human and rodent, are put to high level moral and life altering tests. Can I pay a higher compliment to an animated movie than to say that, throughout, "I felt for all the characters".

Remy was voiced by Patton Oswalt, a comedian I have seen a few times. I did not know this in advance, and for awhile tried to place the vaguely familiar voice. Eventually I stopped trying to figure out the voices, because I was absorbed in the story and the characters. This was a big improvement over celebrity voicing in other animated films. For example, while I enjoyed Finding Nemo, the entire movie I felt Albert Brooks talking to Ellen DeGeneris. In Ratatouille, the characters and story line stood strongly on their own.

I don't know whether the powers that be intend to score with a big marketing and product bonanza on this film. It probably does not lend itself to that. I do think this movie will "have legs" for exactly what a great movie is supposed to, a thoroughly enjoyable watching experience......for the whole family.

Handicapping the Presidential Election

Gambling is illegal in this country, except where it's legal, like Nevada, Atlantic City, some Indian reservations, on barges in many cities, and arguably in "private home games". Also legal is horse racing, dog racing, jai-alai and other "pari-mutuel" forms of betting (I know WAY too much about this, and if anyone wants an explanation of pari-mutuel betting, post a comment and I will explain). Also legal in some States is poker, though internet poker is "illegal" (yet somehow I may be playing later tonight). Sports betting is only legal in Nevada, though billions of dollars is bet illegally on all sports. Ever wonder what those baseball odds in the paper are all about? (Yeah....I know about that too). Lotteries seem to be everywhere, too.

In this country, you can't bet the Presidential election legally, but there ARE places where you can. I Googled "Odds on Presidential Candidates" and got this cool site

http://www.oddschecker.com/specials/politics-and-election/us-presidential-election-2008/to-be-elected-president/best-odds/

Check it out....you won't be arrested.
It made me think, Polls Shmolls, this is where the action is.
I will list the odds as this site states them, with some comments:

1. Hillary Clinton 2-1 knew she'd be the chalk, these are "best" odds, some books have her at even money or less. No filly has ever won the big one, but Bill can really ride.
2. Barack Obama 5-1 does he have a better chance than Rudy? I don't see it. I may use him in an exacta with Hillary.
3. Fred Thompson 6-1 Who??? Rudy is in trouble if this guy is a lower price. First time politicians rarely can get around two turns.
4. Rudy Giuliani 8-1 Not a bad price. Might have beaten Hillary for Senator but came up lame. Breeding a question mark.
5. Al Gore 12-1 Could emerge if Hillary stumbles. Shoulda taken the prize back when.
6. Mitt Romney 14-1 Couldn't pick him out of a lineup. Is he a Mormon? Big Love is my favorite show.
7. John Edwards 20-1 Big overlay. All or nothing, won't take second seat.
8. John McCain 25-1 Can you picture it happening? I can't.
9. Michael Bloomberg 40-1 Awesome mayor, incorruptable, strictly business. Could affect race and would likely hurt Hillary. Pbly will scratch.
10. Evan Bayh 50-1 Not this time.

There are other longshots listed....Jeb Bush, Dick Cheney, Condi Rice, Newt Gingrich, Bill Richardson, John Kerry. I wonder if you could bet the "Field" of others, that would probably be about 25-1 right now.

Who do you like?

Wills and the Dysfunctional Family

Sometimes family members feud.
Sometimes its irreparable (in the eyes of the participants.....I would always beg to differ, but that's another story).
Sometimes thoughts of mortality and money will lead a person to take action.

So they make a will....with one main purpose.....to make sure that " X " doesn't get anything. Sometimes there are related purposes, to make sure that " X " gets the message, or knows what he missed out on, but the theme is often the same......." X " gets nothing.

I've done a lot of wills like this. In these situations, one thing you don't want is a will contest in the future. Sometimes the main problem the will-maker has with " X " is "he's the kind of person who would contest a will". The solution to this is something we learned in law school, which students think would never come up, but in practice is does, it's called an "in terrorem clause". Sounds pretty cool.....here's how it works. You leave " X " enough of a bequest to make it interesting, and add a clause that says effectively "If after my death ' X ' takes ANY steps to contest this will, he will get ZERO". People who are so inclined seem to love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave " X " something in the Will. Clients in this situation will invariably say "So leave him $10"....but this is not the way to do it, because " X " would have nothing to lose. A better approach would be to leave " X " a bequest of say, $15,000 or $25,000, in a million dollar estate, and let him deal with it.

Sometimes people don't want to do an in terrorem clause, but they do want to leave " X " nothing, and they want to minimize " X "'s chances in a will contest. One thing I always do, if someone is being left out, is specifically refer to them. It can be as simple as "I intentionally make no provision in this Will for X, and this is not due to an oversight". Some people go further and say something more....."I leave X zero because he .....whatever." Another one I have had, more than once, is "I leave nothing to X, for reasons which are well known to him." I didn't like it, but the clients wanted it and I did it. I always wondered if X really knew the reasons.

If there are any potential issues regarding the will-makers competancy, steps must also be taken to ensure the Will will stand. This would include using the best witnesses possible, keeping the language of the will as simple as possible, keeping detailed notes, and making sure you can document that you (attorney/draftsman) met with the will-maker ALONE.

There are legal provisions for video-taping a Will, but I have never done it. It surely is done, but I suspect not that often, and I can see many reasons not to.

Why all the fuss about possible will contests? Consider this.....an attorney can take a will contest on a contingency fee. There are often high stakes, where the will beneficiaries may get nothing (or much less) if the Will gets tossed. When Will contest cases first appear in Court, the first thing the Judge will usually say is...."any way to work this out?"......and eventually, there usually is.

Filing a Will for Safekeeping

Questions sometimes arise about where to keep a Will, and who to tell about a Will. In a perfect world, where families are close and people communicate openly, this would not be an issue. The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowlege that when the time comes, the will will be found and its terms carried out. There are times when it's not that way, and even times when clients want and need to resort to deception and skullduggery to make their will, but keep it safe and a secret until they pass.

I always look at whether anyone with access to the will would benefit from its disappearance. I had a client recently whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He has the nephew in the will for about $50,000, has some other cash bequests, and leaves the rest (about $400,000) to his best friend, and if his best friend dies first, to his friend's family. I know him long enough and well enough to know it's legit, but he is very concerned that his nephew would be called to his residence if he died, and the will would be gone. He also is uncomfortable keeping it in a safe deposit box, and uncomfortable about leaving it with me. I suggested that we file it for safekeeping with Surrogates Court, while he is still living. Many people, and many lawyers, don't know you can do this, but it can be very useful. It costs $40 to file. Whenever anyone files an Administration proceeding (claiming there is no will), the Clerk ALWAYS checks for wills on file. I have filed wills for safekeeping about 10 times in the last 25 years. I don't know if it ever stopped skullduggery, but whenever I do it, the clients always appreciate the advice.

Isn't it True.....????

As I start my second 25 years in practice, here are a few observations about lawyering......

Isn't it true......

.....that most criminal clients are nicer than civil litigants?

.....that Judges who have never practiced can really hurt you?

.....that getting a retainer is not so hard, getting paid beyond the retainer is harder?

.....that in practice, it never matters where you went to school or what your grades were?

.....that whenever a new client tells you that people involved in the case have been "paid off", you know they are nuts and you want out?

.....that you could have been a psychologist?

.....that truth IS stranger than fiction?

.....that when you deal with extended families, very often "stupid is as stupid does"?

.....that small money cases drive you crazier than big money cases?

.....that some files are jinxed?

.....that when a client wants you to send a "lawyer letter", you know it isn't going to do anything?

.....that you don't know what people who have "real jobs" actually do?

.....that people who have real jobs have no idea what YOU actually do?

.....that you have thought about changing careers many times?

.....that you could write a book?

.....that the longer you practice, the more you realize how much you don't know?

.....that knowing how much you don't know is not only OK, it's one of the best parts about lawyering?

Fathers Day 2007

Top 10 things I learned from my father:

10. Think BIG.
9. Always reverse your exactas.
8. Give people a ride all the way home, no “dropping off”.
7. Tip generously.
6. Winning is not the only thing, fun and sportsmanship count.
5. Don’t use racial slurs.....he never did, and still doesn't.
4. Try to see things from both sides.
3. You can try to make everyone like you, but not everyone will.
2. Brothers should stick together and help each other.
1. Being a good father is very important. He grew up without one, and did his fathering without having anyone to show him how. I was luckier.

HAPPY FATHERS DAY MANNY!!!!

Per diem update

The per diem (court coverage) business is getting tougher all the time. Here are the main reasons:

1. The overall volume of personal injury cases is down. This is primarily due to the vigorous defense on these cases by the insurance carriers. It has become unprofitable for most plaintiff firms to accept the lower level cases, so now, these cases are simply not in the system. This puts pressure on the per diem business because not only are there less "jobs" to cover, but many firms who used to use per diems are now covering the appearances "in house".

2. Many of the civil defense lawyers are now victims of their own success. They beat the tar out of the plaintiffs, so now there are less cases, and the insurance companies have either laid off lawyers or stopped hiring. Many of the displaced lawyers try per diem work. Some can make a go of it and some can't. The bottom line is there is more competition for less available work.

3. The competition for work has kept the fees down. I would love to raise my per diem fees, but the problem is all my competitors would love me to do that, so they could undercut me. I recently told another per diem lawyer that in this environment I would lower my fees before I raise them. He seemed to think I was nutty. He can follow his business model, I'm going to stick with mine.

4. Many of the per diem players are marketing and advertising much more than before. I suspect some of them have actively pursued my attorney accounts, and sometimes in the course of marketing they "inadvertently" have gotten in my kitchen and taken some clients. Fair is fair, and my view is it works both ways and evens out. In the end, quality will tell. One thing is for sure, the per diem business is no different than any other, you have to service your existing clients AND market for new business.

5. Some of the downturn in lawyer business spills over into accounts receivable. There are some really bad attorney clients in this biz. I've learned who they are, the hard way. I am tempted to name names, but I won't. What I will do though, is let my new competitors scoop up all THAT business, and then struggle to get paid from these deadbeats. Here's when I knew the depth of sleaze from one of these firms.......He ran up a $10,000 tab with me (you may ask, how did you let that happen? and the way it happens is every so often they send in $3-4000 when you really need it, so you stick with it, and then it gets out of hand) and forced me to sue him. We negotiated a settlement, which I had to chase him for. After it was all over, I called him and said "No hard feelings, I have a business proposal.....I know you have volume in Queens, and I would like the work, but I must get paid, SO, I will give you very VERY low prices, lower than anyone else, EVER, and I only have one condition.....I want to bill a credit card once a month". He said no. He then proceeded to stiff my biggest competitor for $6000!!!!
Yipes!!!! and I am usually the guy who defends other lawyers.

The business still has a lot going for it, but anyone thinking about trying it should remember, it IS a business.

DOH! Immigration Bill Going Nowhere

President Bush really looked like Homer Simpson (or any other doofus paradigm you prefer) on this one. My faithful blog readers know that I nailed this situation.....I should only pick horses this well.

You have to give the Democrats credit, they lured Bush into a "compromise" that NONE of them would have actually voted for, and waited for his cretinous cronies to rail against it and "defeat" the bill before it went anywhere. It does not appear that the issues will actually be publicly debated. That seems like a constructive way to handle the most important social issue in our country.

What could Bush and the remaining upright-walking Rebublicans have done. Consider this scenario.....they all supported the bill despite stating certain reservations about it, but express a willingness to compromise further and work out any differences in the best interests of the country. They further trumpet their support of those things that would have forced the Democrats to actually talk about the bill (provisions regarding returning home, fines, waiting, elimination of certain family preferences, and English language encouragement). How many Democrats would have actually supported or voted for a bill with all those provisions? How different would this all look if the Democrats would have been the ones who "defeated" the bill, or at least contributed to the defeat.

The way this played out shows an appalling lack of political skill from the White House. It could also be that nobody in Congress, especially the Republicans, can gain anything from an association with the President. Bush is so far down that his best political ally is now Ted Kennedy.

DOH!!!!!!!

Immigration Bill......I'm on the right track

Here's a link to a fascinating op-ed piece from today's Wall Street Journal http://www.opinionjournal.com/columnists/kstrasselpw/?id=110010155

It's based on interviews with President Bush regarding the immigration bill. I realize that some of my "liberal" readers will have difficulty reading anything emanating from "that man". I would say this.....the column is impressive, and explains many of the difficulties inherent in reaching a consensus for immigration reform.

In past posts, I have stated my basic position: President Bush wants and needs to enact a comprehensive immigration reform bill, and the Democrats will never let this happen until 2009. Furthermore, the present bill is all about changing the nature of the future debate, embarrassing the right wingers, and keeping the democratic Presidential candidates (primarily Hillary and Edwards) out of the fray.

There was one section of the article that really let me know I'm on the right track. Please read the whole piece for context, but here is the section that really caught my attention:

"When I ask if Mr. Bush thinks any of the current GOP candidates are proving to be leaders on immigration, he again flips the issue around (while still managing to sneak in one candidate's name): "I would rather refer you to those in the Senate that are doing a standup job. Of course, that would be Jon Kyl and Lindsey Graham and [Mel] Martinez--I hate to name them because I'll leave somebody out--John McCain has been very strong in the Senate, Ted Kennedy." He goes on to praise Mr. Kennedy, noting that an "untold" story is just how many Democrats are against this bill, and that Mr. Kennedy's leadership will thus be necessary to get a bill through the Senate. "

Yes, that is the "untold" story, because this bill is way too stringent for most Democrats, and there will not be any "leadership" from Senator Kennedy to get it throught the Senate. Neither Senator Kennedy nor any other Democrats have any intention of passing this bill, and that is the REAL story.