Wednesday, February 28, 2007

ALJ at the PVB

For a few years I was an Administrative Law Judge at the NYC Parking Violations Bureau (ALJ at the PVB). The Law Journal ad said it paid $89 per 3 hour session, all you needed was five years in practice. So, at age 30 I became a "Judge".
I thought it was really cool to get the $89 for each of the Judge training sessions, and then I was sworn in and ready to commence judging. You could request which shifts you wanted, and PVB tried to comply. I figured out that the Bronx wasn't so popular with a lot of the other Judges, most of whom were either "retired" or "old and practically out of business", so if I requested the Bronx I could get the shifts I wanted. The evening choices were 5-8, 5:30 - 8:30, or 6-9. I was a big fan of 6-9, once I realized that the Clerks stopped accepting new cases at 8:30, and if you had no cases at 8:30, your 6-9 shift ended and you still got the whole $89.
I liked sitting in the Bronx in the evenings because sometimes it wasn't busy, and you were permitted to do other work. If I brought work with me and got some other work done while I was sitting as a Judge, I used to call this "LEVERAGE". Sometimes I didn't feel like doing other work, and I would spend my time talking to the other Judges and the PVB clerks, who were all very nice.
Sometimes I did some judging too. The way it worked was there was an "intake area", where the Clerks would make sure the "cases" (people who were fighting parking tickets) were "ready for trial". When they had enough people they would randomly fill the rooms, presumably to prevent Judge shopping. Believe it or not, years later I found out that one of my co-Judges in the Bronx was indicted for having cases directed to his room and "fixing the tickets". I wasn't going to risk my $89 doing stuff like that, and besides, I was having too much fun judging the cases.
When I got a full room, I always started by making a great speech. I would drone on about my procedures, and the different ways one could plead their case, and when the whole room was nodding out I would conclude with....."and remember......multiple first prize winners share the jackpot in accordance with lottery rules."
In this court there were no prosecutors, actually the ticket was considered the prosecutorial instrument. Part of my training was to notice if the ticket was defective, in which case I was supposed to dismiss it. I was obliged to do this even if the defendant did not realize the defect, and wanted to defend on some other basis. One common defect was a "wrong date". Once, in say April, 1988, I was presented with a "no standing" summons dated April 9, 1989. The defendant pled not guilty and started to explain about the sign or some such nonsense, but I stopped him when I noticed the futuristic date. I told him we had two choices......I could hear what he had to say and decide whether it made sense, OR we could wait until 4/9/89 to see whether he would in fact commit the infraction at that time. All the English speaking people in the room laughed, and then I dismissed the ticket.
One might think there were a lot of Spanish speaking customers in the Bronx, and there were, but what always amazed me was the variety of other languages. One night the first defendant was Russian, and when his case was done I said "Dasbedanya" (good-bye) to him. The next defendant was Haitian, and while we were reviewing his case I said "Le jeuz son fait" (literally 'the die is cast'), and he smiled. The next man approached and he had an Israeli sounding name and I just had a feeling, so I said "Ma shlomcha" (how are you?) when we started and "Shalom" when we were done. Finally, a Hispanic man approached, sat down and said "You e-speak e-spanish?" What could I say? I said "NO".
I did handle a large volume of cases, and I must have pleased someone in authority, because after six months I was asked to be on the "appeals board". These were cases that were appealed from the ALJ's. The Board sat in Manhattan, and consisted of the Chief ALJ and two "selected" ALJ's. When the Chief called me he said I would be the youngest ALJ to ever serve on the Appeals Board, and it was "quite an honor". I asked what the pay was, and he told me $89 for a three hour session, but we sit in Manhattan at "headquarters". I told him I felt so......"honored", but I mostly liked working in the Bronx at night.
After all, I valued my leverage.

Sunday, February 25, 2007

First to Go

When I began to jettison certain areas of practice, matrimonial was the first to go.

Even when I was well paid on a divorce case, from my end it never felt worth it. Put another way, there may have been some threshold of money that would make it worthwhile for me, but I never came close to finding out where that threshold was, not did I want to die trying.

I have a lot of respect for the lawyers who specialize in matrimonial, and many of them seem to enjoy their work. Legally, the cases are often interesting. There are always issues on the cutting edge of law in this field. I know this from reading the law journal, and from cases I have referred out. That's close enough for me. If there is one area of law where, as a general practitioner, I hated having adversaries who specialized, this was it. Not only did they know the law, they knew how to make sure they were well paid (very disheartening when you can't say the same), they knew the Judges, and they knew how to handle their clients. This last part is the essence of matrimonial practice, and capsulizes why the generalists should not dabble. Here is the essence........
If the case has become "personal", and is not just a business proposition for the client, matrimonial lawyers know how to give the client their money's worth, and the game gets played until it's time for it to stop.
When the case is not personal, and the clients are not overly emotional and are trying to resolve their "business" together, experienced matrimonial lawyers know how the case should turn out, and they generally get right down to it. This is where handling the clients is also key, and the discussion is along these lines....."This is how it's likely to turn out, this is what it will cost to fight over certain points, this is what we can negotiate to, etc..." This works if both clients and both attorneys are like minded. But, one lawyer who doesn't really know, leads to a client who doesn't know, and then it gets ugly. As a lawyer, you don't want to cause ugliness, nor do you want to be involved in it.
What I do with matrimonial cases now is the following:
1. I do an intake, with the understanding I am doing it so I can make a proper referral. I explain my philosophies about this to the client.
2. I try to know who the matrimonial lawyers are in each County. This is very important, because this is one field where there is a distinct home court advantage. (See my post entitled "Location location location")
3. When I am thinking of a referral, I am VERY conscious of fee tolerance and making a good match. Some clients and some cases simply do not warrant the top attorneys. Having attorneys to refer to at all fee levels is very important.

A comedian once asked, "Why is divorce so expensive?".........
Answer......"Because it's worth it."

Well, that is either funny or sad for clients going through it, but for lawyers in general practice, I suggest you ask yourself a related question.....
"Are divorce cases worth it?"........
Be honest with yourself. I have never regretted making them the first to go.

Thursday, February 22, 2007

Pre-paid Legal

One sure thing about starting a solo practice, there will be gaps in your cash flow. There are three hurdles to overcome: finding the work, doing the work, and getting paid for the work. The only way to develop skill at all three is experience. Eventually you learn how to get paid (mostly by figuring out why you didn't get paid a bunch of times), but in the meantime it's financially stressful. One way to relieve that stress is taking a part-time legal job, which I have done four different times. I have been an Administrative Law Judge at the Parking Violations Bureau, taught paralegal courses at Queens College, worked for a taxi drivers union, and worked at a "union pre-paid legal plan". Each of these provided steady money, experience, contacts, and most stories.
The story that follows is true, only the names are changed....


One year into my practice I answered a Law Journal ad for a part-time attorney for a "pre-paid legal plan". The attorney who placed the ad was the union attorney for Local 831, a loose coalition of shipping clerks, mail room personnel, local delivery drivers; and warehouse workers. The lawyer, Stewart Miller, represented the union in labor negotiations and other union matters.
This union could not make great strides for its members on salary or working conditions because frankly, what leverage did they have? They were just assorted workers in assorted small companies. But the union did provide two valuable benefits to membership, a medical plan and a legal plan. Union headquarters was a two story brick office building on Queens Boulevard in Elmhurst. In the building were all the doctors, dentists and podiatrists who union members could use. It was actually a smartly run little operation, an in-house HMO ahead of its time.
The union also offered a legal plan, where members were covered for an array of legal services. Stewart received an annual flat fee from the union to offer this service. Think about the economics of this. He agreed to provide legal services for everything and anything the members needed, and within his budget he had to hope they didn't need too much. His bottom line would go down when he had more cases. The types of cases reflected the demographics of the membership: debt collection cases (not as the sue-er, always as sue-ee); Family Court (usually Welfare suing a father to pay for kids on welfare); immigration; uncontested divorces (which to my nose always smelled immigration related); and minor criminal cases.
According to the law journal ad, Stewart wanted a part-time attorney to work 15 hours per week, including 10-2 on Saturdays and one court appearance per week. He would not be there with me, so I would use his office during my "office hours". His office was small and windowless, on the first floor in the back. Not too uncomfortable really. He shared a secretary and receptionist with the medical office. His secretary, Lillian, was a very experienced legal secretary, and ran the law office day to day. I thought I could learn a lot from her. I also liked the location, the hours and the pay, so I took the job.
The idea, Stewart explained, was to resolve the cases quickly and with as little real legal work as possible. Simple economics really, if there is a way to get it done simply, find it and do it. Of course, the clients often had different ideas. When you are not paying for something directly, you want your moneys worth. As I soon found out.
Tom Johnson had a DWI (driving while intoxicated) charge pending in Brooklyn. Stewart had been in court with him several times trying to get a plea bargain, without success. The problem was, Tom refused to plead guilty to ANYTHING, no matter how light the charge. Stewart was really mad at him, and turned the case over to me, with clear instructions, "Find a way to end it!".
There was a court date coming up in two weeks, so I had Lillian call Tom for a Saturday appointment. Tom was a quiet black man, about 50 years old, who worked on a loading dock. He was also a stutterer. He explained how he had been arrested. He was at a party with his brother and another friend. They had driven there in Tom's car. At the party Tom got so drunk he couldn't drive, so his brother drove while Tom laid across the back seat. At 3 A.M. they got in an accident with another car, driven by an Israeli woman, somewhere in Brooklyn. The woman and her husband got out of there car, came over to Tom's car, reached in and took the keys. Then they called the police.
By the time the police came, Tom, his brother and friend were all standing outside the car. One officer reached into Tom's glove compartment, took out his registration and said "Which one of you is Tom Johnson?'
"Hiccup.....I am.", came the reply.
"You're under arrest."
Tom's brother and friend were screaming that Tom wasn't driving, Tom was stammering a similar tune, and the officer wasn't believing it. He put handcuffs on Tom and sat him in the police car. Meanwhile, the other officer was questioning the Israelis. Finally, the two officers conferred and decided to figure out who had been driving. They brought the Israeli woman over to the police car, in the middle of the night after a car accident, with Tom in handcuffs in the police car, and said "Is that the driver?"
So Tom was arrested and charged. Fortunately, his union had pre-paid legal coverage. Stewart had gone to court with him, and the assistant district attorney made the usual offer, plead guilty to "impaired" which is not as serious as "intoxicated", with a small fine and a small record. Stewart wanted him to plead. He wasn't going to. After three court appearances, Stewart gave me the case, and strongly suggested I find a way convince Tom to plead to SOMETHING. Herein lies the basic business problem with pre-paid legal. If Tom were a private client, you could point out how much more it would cost to take a case to trial, and the risks versus the gain, and how it wouldn't be worth it, and he'd probably plead. Or, he'd pay an appropriate fee, you'd work hard for the money and give it your best shot. Tom didn't have to pay, he just wanted the charges dismissed by the DA or he wanted a trial. Stewart had a dilemma.
I did not have the same dilemma, since I had to go to court for Stewart once a week anyway. I liked going to court on this case. It was far better than Family Court and some of Stewart's other legal garden spots. I went to Brooklyn Criminal court a few times, meeting with assistant district attorneys and their supervisors, trying to get them to drop the case. They wouldn't, they wanted Tom to plead to something, anything, even a traffic violation. Tom wouldn't plead to anything. Actually, if Stewart would have let me, we could have filed a written motion to obtain a hearing on the way Tom was identified. This would have been very time consuming, and would have prevented me from working on anything else. A private client would have to pay $3500 for this work, and Stewart wasn't going to have me do $3500 worth of work on one case.
Twelve court appearances and one year after the arrest, the case had to go to trial. During a pre-trial conference with the Judge, the DA made no secret of his disgust at our not taking a plea. I asked him if he knew what a pre-paid legal plan was.
A defendant has a right to a jury trial, but as a lawyer you don't always want one. You can opt for a trial with a Judge deciding the facts and the law. This is called a "bench trial". Strategically, I thought this was a good case for a bench trial, and besides, Stewart would have killed me if I took the time for a jury trial.
At the bench trial, the police officer testified that he arrived on the scene after an accident. He testified about how he had determined that Tom was the driver. On cross-examination he admitted he hadn't seen Tom driving, Tom was outside the car when the officer arrived, and that Tom was in the police car with cuffs on when the Israeli woman identified him.
The police testimony was not enough to make out a case, and I knew the DA would call the Israeli woman as a witness. During her testimony I figured out why the DA had adjourned the case so many times previously. During the past year his "star witness" had become a mother for the first time, had traveled back and forth to Israel several times, and didn't seem too happy to be in court.
The DA worked hard to get her to talk about the accident and Tom Johnson, but she was not very convincing. One exchange on cross-examination decided the case:
Me: "Do you recognize the man sitting at the defense table as the driver that night?"
The witness: "I don't know."
I was going to ask more questions, but the Judge's face and body language told me it wasn't necessary. After the DA said "The People rest", all I had to do was stand up and make an oral motion to dismiss the case, and the Judge dismissed it.
Stewart may have lost money on this one, but Tom got his money's worth.

Sunday, February 18, 2007

Bad is Bad

No matter what anyone says, there is plenty of law business out there. The real question, the one that separates the successes from the strugglers, is knowing and getting GOOD business. Oh, and staying away from BAD business. That’s all a law practice is, really. Hearing a person’s story, and making a business decision on whether they and their story are profitable business.
Here’s a list of the reasons bad business is so bad:
1. All time spent on bad business takes away from two things: good business and personal time. You can make up for bad business with good business, but only if you expand into personal time. Very unhealthy.
2. It saps your energy. Squeaky wheels get your grease, and that is the essence of bad business. Squeaking clients, making a noise you can’t escape and have to attend to. So you grease it, and talk to it, and e-mail and fax it. Still, it squeaks. You grease it enough, it starts to move along, nice and quiet. Eventually, you and the squeak get to your destination, the case ends, and then you realize the third reason.
3. You lose money. Putting aside clients who get quiet, and then slink away without paying, that’s bad enough. All that squeaking, all that time, your time, and in the end you made $10 an hour. It happens, and if you don’t pay attention, it happens a lot.
4. Bad karma. When you are a solo lawyer, your clients and their cases are your life. When you have a lot of cases, you always have a certain “mix”. I first realized this one afternoon at 4 o’clock, while talking to one of my lawyer friends, another solo. It was a typical “can you top this” of problems, commiserating in our misery, when he asked, “Why are you so down today?”, and without hesitating I answered “Bad mix right now”. He knew just what I meant and said, “Yeah, that’s a bad thing” Since then, we always start our afternoon calls with “How’s the mix?”
5. A bad mix, that you don't fix, makes you hate your practice. And if your practice is YOU, well, you know where this leads.

I have blogged previously about general practice vs. specializing. We are all bound to dabble in certain areas of law. Once you do more than a few of something, either really do it, or STOP. Here is my short list of bad kinds of cases, and the reasons they are bad:
a. Real estate closings: fixed fees with no control over your time; clients who are generally not business people, suddenly under pressure and needing you. (see previous blogs entitled "Perils of Real Estate)
b. Accident cases with minor injuries: You end up working your tail off for years, spending your own money, and the insurance company fights you every step of the way. Now, it is true that every so often you hit a home run with an accident case. But sometimes there are no home runs in the mix, just some very squeaky wheels.
c. Landlord-tenant cases: Unless you do a lot of them, so it would make sense to hang around in Housing Court all day. Hanging around in Housing Court all day on one case, is bad business.
d. Debt collection cases: a percentage of nothing is nothing. Never forget this. Yeah, you can collect once in awhile, but on all the ones where you get nothing, you never get back your time.
e. Purchase and sale of a small business: Unless you are really tough, and a super smart businessman, and ruthless, and heartless. As a young attorney, you find out right away, that compared to other small business owners, you are a wimp. A nothing. You may be able to do the papers for the deal, but you don’t even know what the deals are really about. I’m not talking about corporate mergers here. I’m talking about representing someone buying a coffee shop. If you really knew the coffee shop biz, and all the details of what went on, maybe you could effectively represent someone buying or selling a coffee shop. The problem is, if you knew that, you’d be IN the business, not “doing the papers”.

It is really easy to market for, and get, bad business. Place an ad in the yellow pages, pay to be on lawyer internet sites, do speaking engagements in the community, join organizations. These things all work, you will get business, lots and lots of bad business.
Of course, if you get enough bad business, bad becomes good, you become the specialist, and you are the bad business go-to person.
Bottom line: bad is bad, bad can become good, if you don't know bad when you are in it, bad is VERY bad. If you can figure out what good is, skip all this bad stuff, and go for good from the git-go. Get me?

Thursday, February 15, 2007

Fond Memories of TAP

I learned a lot about TAP (Trial Assignment Part) when I first started doing my per-diem business. At that time, Justice Alfred Lerner presided in the Queens TAP part. When I started getting assignments to appear in the TAP, other lawyers warned me about Judge Lerner. The sentiment in the courthouse was "He's not going to like what you're doing, covering all these cases for other people and asking for adjournments".

The reality for me was, at first, he didn't seem so bad. Even better, the reality that counted was that virtually every lawyer in the City thought he was tough, and they didn't want to appear before him. From my perspective, he seemed dedicated and hard working, and singularly focused: he wanted to move the calendar and settle the cases. It was inevitable we would clash, since as my business grew, lawyers were constantly calling me to "get one more adjournment in TAP". I tried, but then it started to happen, Queens per-diem justice courtesy of his honor. A few examples: making me come to court all day every day for six weeks waiting to pick a jury, and then assigning me to pick on two cases at once; making me pick a jury immediately, in his courtroom, in front of all the other lawyers; or assigning the same hostile trial Judge every time, after we refused his settlement recommendations.

He did these things to everybody. The technique I actually admired most, was how he solved problems with trial ready cases. First, he insisted on hearing in detail what the case was about and what the settlement positions were. After this, he would hear about who wasn't ready, or who had a problem with a witness or some evidence, or some other motion that needed to be decided. At that point, he would dispense hints about his potential rulings, based on where the settlement discussions were. He tried not to commit, but made the lawyers make painful concessions. If one stood up to this pressure, he would surely be losing on the rulings in question. Of course, these techniques did tend to make the cases settle, or as we say in court, the cases were "disposed" or "folded" or "went away". Having the Judge's techniques used on me, as I covered for others, was bad for business and bad for healthy living. I decided on a radical plan and told a few of the courthouse regulars of my intentions. I decided to figure out Judge Lerner’s motivations, then make an appointment and tell him about my per diem business. I would be honest, ask him what he would permit me to do and not do, and if he could not bless it, ask him at least not to destroy it.

I made an appointment and met with him in chambers one afternoon. I told him I respected what he was doing with the calendar, and that I had started this per diem business that led to a lot of lawyers asking me to appear in his part, that I wanted to be able to effectively appear, but I understood that he wanted the part run a certain way....a way that maximized resolving cases. I also made clear that I did not expect special treatment, nor would I permit any perception that I was getting special treatment.

He thought about it and said, "I have no problem with you or anyone else appearing in my part, and making a living. I don't think much of some of the firms that ask you to do their dirty work, or for lawyers who are lazy or disrespectful to the court. When you appear in my part, know the case and be prepared to talk about it and settle it. Have someone you can call for more authority when we negotiate. If the case has a problem, be up front about it. Sometimes, if there are lawyers you should not appear for, or requests you should not make, you will have to know these situations, and turn down THAT work. In the end, that will help you, wherever you appear."

What he told me is what I adopted as the way to appear in a TAP part. In Judge Lerner's part I had a standard operating procedure. When the lawyers would come in and sit down with him, I made sure I was the one who answered his first question "What is this case about?". I did it directly and with just the right amount of detail. I then summed up the settlement positions as I understood them, BEFORE he asked. This got the action going quickly, brought any problems to the fore, and got me in and out of there quickly. The WORST thing another lawyer could do was go in there, and talk about the case like he was the Tin Man talking to the wizard...."Well you see, we were walking down the yellow brick road, when....". whereupon Judge Lerner would bellow "SILENCE!!!!!" Then he would ask ME what the case was about. If you do per diem work, and appear in TAP parts, I advise the following:

1. If your instructions are "please adjourn", call and get better instructions.
2. Have someone to call from court if necessary. I make firms give me someone's cell phone. Otherwise, invariably when you are in trouble and call, "all the lawyers are in court". If the staff says that, ask them to get someone on a cell phone.
3. Protect your reputation in the TAP part. Be candid about what you do, show that you are prepared, and if you get caught short....apologize.
4. Maintain a good relationship with the clerks and court attorneys.
5. If there is a TAP appearance you know you should not make....turn it down.

Judge Lerner had it right

Tuesday, February 13, 2007

Bad is Good

Bad is good. That's the philosophy behind the main part of my law practice. One might call it a "niche" practice. I don't feel so lofty about it, so I call it what it is, "Queens Court Appearances". It works because of a basic business truth: Success can be as simple as finding and filling a demand in the marketplace. Put another way, making court appearances in Queens is so bad that lawyers pay me to do it for them.

Essentially, I make court appearances for other lawyers on any kind of civil case in Queens County. "Civil" is a word to distinguish these cases from "criminal", another beast altogether. There is not much civil about them, just an endless stream of car accidents, malpractices, fall downs, and other schemata to transfer money from insurance companies to thousands of plaintiffs and their counsel.

There are so many cases that it takes many months to get a trial date once you are "on the calendar". However, before a case can even go on the calendar, all "discovery" must be completed. Discovery means each party learns about their opponents case, through depositions, physical exams, expert reports, and many other techniques, all designed to keep discovery fair. Of course, someone in the sandbox is always yelling "no fair". The legal way to yell "no fair" is to "make a motion" (yelling on papers) or "demand a conference" (yelling in person). One of the things Judges do is resolve sandbox skirmishes by deciding the motions and supervising conferences. There are so many motions and conferences that each Judge (there are 20 such Judges just in Queens County) has a "motion day" and "preliminary conference day". A typical motion day calls for 50-75 motions, all scheduled at the same time. All these matters, great and small, require lawyers to appear in court. All this yelling may be legally necessary, but for plaintiffs lawyers especially, it's bad business. All the plaintiffs lawyers are on a contingency fee: they get paid a percentage of any settlement, later........ at the end. They want to spend as little time as possible now........ in the beginning. Civil defense lawyers get paid by insurance companies, by the hour. They love to yell, its good business.

And these are only the preliminaries! Many months and many appearances later, all this legal jousting ends and the case goes on the calendar, heading towards its eventual end, the cholesterol of the court system, a civil jury trial. Trials take up too much Judge time and court personnel, yet the litigants and lawyers want them. The plaintiff lawyers want a trial so they can convince a jury to award their client big money (or settle the case because the insurance company fears the jury is about to make an award), and the defense lawyers want a trial so they can keep getting paid.

There are not enough Judges to preside at all these trials, and if the Judges tried cases all the time, how would all the motions and conferences get done? All these cases on the calendar wind up in the Trial Scheduling Part (TSP). It used to be called the Trial Assignment Part (TAP), and most lawyers in the City call this a "TAP part". It sounds cool....."Meet me in TAP. Who's sitting in TAP. Can I get an adjournment in TAP? Tap me if I fall asleep in TAP."

The TAP Judge's job is to handle the onslaught of trial ready cases in the TAP part. This is not like being a regular Judge. Appearing in TAP is not like making other appearances. Even in the "Queens Court Appearances" business, it's a different kind of business......

Sunday, February 11, 2007

Who is my client?

Here's a paradox.......

"An attorney's ethics are inversely proportional to the number of ethical issues he encounters".

This is because the most ethically aware attorneys will SEE the issues as they arise, while the ethically challenged will be unaware of the problems they are about to encounter. I wonder how many law students have taken an ethics course, or ethics exam, and thought, "This is all academic; these things don't actually happen." Well, it's true in one way.....real practice is WAY stranger, and much more ethically challenging, than any law school exam. If your practice is presenting you with ethical questions to resolve, you are not an unethical attorney. More likely you are highly ethical, and your diligence will serve you and your clients well.

Here's a recurring ethical question.......WHO IS MY CLIENT?

This arises in many contexts, but is especially prevalent in elder law, estate planning, and estate administration. Here are a few examples:

1. An elderly man and adult daughter make an appointment for "Dad to do a will" but the daughter is doing all the talking.

2. An adult calls you and inquires about your fees because "Mom wants to sell her house".

3. An adult calls you regarding petitioning for guardianship for their incompetent parent. Upon meeting the parent, you agree the person needs a guardian, but you then receive a call from another adult child, stating that the person who called you cannot be trusted with money.

4. Same scenario as #3, except when you meet the parent they tell you quite clearly that they don't want or need a guardian.

5. Same sceario as #4, except when you meet the parent a second time, they seem to have deteriorated mentally....Upon telling this to the two children, the first one tells you that this is how it has been going, and the second one tells you that the other child has not been giving the parent their medication.

6. You start an Administration proceeding, and then find out that the Petitioner can't be bonded (as the court required) because they have some credit problems. You call one of the other adult children, ask if they could serve as Administrator, and they proceed to tell you a litany of financial improprieties committed against the decedent by your original Petitioner.

7. You are contacted by the child of a person who died six years ago. There is no will. The person who contacted you lives in the house owned by the decedent, and has lived there his whole life. There are three other children who do not lived there, and have not taken any action, until recently. The person who contacted you wants to be the Administrator.

All these scenarios are real. In fact, they are situations I have encountered in the past year alone! These situations have one thing in common. One cannot proceed until determining "who is my client?" and reconciling that with the appropriate ethical questions. Very often one can proceed but must (or should) obtain waivers from parties who could later critisize the conflict. Other times we may be able to proceed, but prudence will dictate documenting what we are doing and why.

Something I always do if a parent and child are in my office, and I sense a "Who is my client" situation.......I tell them that at some point I MUST meet with the parent alone, and I mean ALONE, and that I am doing this for their benefit. When I meet with the parent alone, I make very clear that I am THEIR attorney, that we have attorney client privilege, that I will not do anything they don't want, that they can call me on their own if they wish, etc....and, I DOCUMENT MY FILE that I have had this meeting. In some cases, I will ask an associate to sit in on the meeting, and make notes as well. It is THAT important.

Sometimes it takes some work to untangle these initial ethical issues, and sometimes clients think you are working on a side issue and causing there to be extra fees. Don't succumb to the temptation to ignore the issues. Another paradox here....."the person who doesn't want you to spend time resolving the ethical issue, is the one who really needs you to resolve it" In estate planning matters, don't be afraid to ask yourself "How is this going to look later?", and don't be afraid to ask that person (client?) across the desk "How is this going to look later?". I like being able to do right, and have it LOOK right, and have a result that will stand.

Friday, February 2, 2007

Groundhog Day

I just finished watching Groundhog Day, again, something I do every February 2nd.

I expect to do it every February 2nd for the rest of my life.

I suspect I am not the only one.

For the uninitiated, here's the basic plot........The protagonist Phil Connors (Bill Murray) is a self-centered, unhappy, sarcastic, egotistical TV weatherman. He goes to Puxatawney, PA, to cover the annual Groundhog Day festivities. He finds his TV crew, and the small town activities, beneath him. A possible exception is his producer Rita (Andie McDowell), who he is interested in only on the superficial level his flawed personality will allow. After an initial long, tedious day, a snow storm forces him to stay overnight in Puxatawny.

When he wakes up the next morning, its February 2nd again, he’s still in Puxatawny, and the same day is starting over. At first he doesn’t believe it, and thinks he is going insane. As the day progresses he encounters all the same people and situations he encountered before. He handles each slightly different from the day before, and manages to get through the day. This happens to him over and over, to the point where he knows who he is going to encounter, and realizes that his knowledge is cumulative, and each day he knows more about THIS day, and the people in it, than the day before.

When he first realizes that he is going to keep waking up in the same day, he does selfish and outrageous things, like seducing a woman using information he learned about her “the day before”. In bits and pieces, the film shows you how he pursues his interests. After awhile he begins to despair over his situation, and each day when he commits suicide (in many different ways) no matter what, he awakens each day and its still Feb 2 in Puxatawny.

Eventually he turns his attention to Rita. She is such a genuine, beautiful person, he wants desperately to develop a real relationship with her, but he has no idea how to do it. Each day he learns more and more about her, and each day we see him learning not just about her, but FROM her. We begin to sense that if he could get the day right, if he could know enough, if he could genuinely change, that his life could go on past Groundhog Day.

There is a point in the movie where he changes, and starts to live his day(s) differently. When we are shown this, it is never tedious, its downright ingenius. At one point he decides to learn to play the piano, because Rita tells him that her perfect man would play an instrument. He takes a beginning piano lesson, and a few scenes later, when he plays expertly, you realize he must have lived that day hundreds of times to learn to play that way (I'm dense, so I didn't realize this until I'd seen the movie 3 times). He also starts doing helpful deeds for people all over town, knowing everything that's going to happen, and you see that his desire to do these things is coming from within.

At this point, he continues to pursue his one day relationship with Rita, starting from scratch each day, and we see he is starting to do it "right". OK, it's a movie, what do you think happens? When he goes to sleep after what sure feels like a perfect day, he wakes up the next morning and its February 3rd, Rita is with him, and he is ready to move on, a changed person..........

At its core, Groundhog Day is about the opportunities in each and every day. We can live the same day over and over, or we can make each day count. We can learn something each day that enables us to progress, or we can make other choices. The next day WILL always come, and it may seem like the same day, or it may seem like a brand new day, but one thing will be constant.....we each have the ability to impact the kind of day, and the kind of tomorrow, we are going to have.

There are four possibilities regarding a person's relationship with this movie:

1. "Never saw it." "Heard about it, seemed kinda stupid." "I don't care for Bill Murray" "Saw parts of it but it was just the same day over and over"................. To you I say...........there are some things in life worth thinking about and worth doing, so....set aside the time, watch the whole movie, and if its not as profound as I say, at worst you watched a romantic comedy that had some laughs. On the other hand, you may find that it positively affects your attitudes about a host of personal issues. That possibility makes it worth the "risk".

2. Saw it some time ago, it was OK, never thought about seeing again. Considering that the nature of "time" is a central issue of the movie, seeing this movie again after a passage of time might have a particularly strong impact.

3. Have seen it, didn't like it. I know that you too live each day to the fullest.

4. Love the movie, watch it whenever it's on. Thought I was the only one.


Here are a few Groundhog day related links.....

Am I right...or am I right?