As always, before reading this post, please review my disclaimer by following the link at the top of the page or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Well, it's Thursday, and I haven't done a blog post yet this week, so my calendar tells me I'm due for one. Nonetheless, after spending most of the day yesterday in court, and then running around the county on various errands, I find myself this morning with a terrible case of writer's block. Fortunately, I had planned for such a possibility.
Over the course of my legal career, there are numerous questions that I get asked repeatedly. In terms of this blog, the answers to these questions are frequently too short to warrant blog posts on their own, so I've had an "FAQ" post on the back-burner for a while. So, what follows are some of the questions I am frequently asked as an attorney, and my quick answers thereto. I doubt this will be my last FAQ, however, as I have quite a few to go through. Moreover, if there's an answer you want more information about, you can certainly leave a comment. Heck, you may inspire me to extrapolate an entire post about that topic and help break my writer's block!
Anyways, here we go...
Why do lawyers charge so much money?
The complete answer to this question is a fairly complex economics explanation - we charge what "the market" allows us to charge because clients come into an attorney-client relationship expecting to pay that much. The simpler answer, however, is that like any business, attorneys charge at rates they need to in order to sustain their business. Attorneys have very high rates of non-payment from clients for a variety of reasons (sometimes even the best attorneys lose, and clients seem to think they don't need to pay when that happens), and a large percentage of our workday is non-billable time. As a result, we need to charge enough to keep the business going (pay rent, computer fees, employee salaries, etc.), and also to feed our families. You see, there's this misperception that lawyers are all wealthy aristocrats which is largely false. There's a small percentage of attorneys that make millions a year, but most make middle class salaries at best.
Why is the legal system biased in favor of people with lawyers?
This is a question I get a lot and most people are quite skeptical when I say the legal system is not biased. In fact, I see judges often go out of their way to make sure pro se (unrepresented) persons get heard. The problem is, we have a complicated legal system, filled with rules that are, in theory, designed to promote the efficient running of justice, and attorneys are forced early on to learn those rules, whereas an unrepresented individual who has never dealt with the court before hasn't, and can fall into those traps much more easily. Moreover, attorneys know the law better because knowing the law is our job - we have studied the law much longer than most any pro se person will have. This question is almost like asking "why are illnesses biased in favor of being treated by doctors." Sure, anyone can treat an illness (and for some small illnesses, most of us do treat them ourselves), but doctors have spent years studying these things that we just can't, and so they know how to treat it better. With lawyers and the legal system, it's largely the same.
What does "jurisdiction" mean?
The dictionary definition of jurisdiction is "the official power to make legal decisions and judgments," and that describes it pretty well. Jurisdiction determines when a court can make a ruling, and when it cannot. For most intents and purposes, there are two kinds of jurisdiction - "subject-matter" jurisdiction and "personal" jurisdiction, and in order for a court to be allowed to even consider a case to begin with, it must have both.
Subject matter jurisdiction is the law determining whether or not the court is allowed to hear cases of a certain type. If a court does not have subject matter jurisdiction, it does not have the power to hear a case, even if all parties want the court to hear it, and any ruling issued by a court without subject matter jurisdiction is immediately void. Subject matter jurisdiction is usually determined by the legislature that controls the court (so, state legislatures for state courts and Congress for federal courts), but there are some constitutional limits as well (the case you all learned in school - Marbury v. Madison, which established judicial review, did so by saying it was unconstitutional for the Congress to give the Supreme Court subject matter jurisdiction over the original filing of a writ of mandamus).
Personal jurisdiction is, as the name suggests, "jurisdiction over the person." In other words, if the court does not have jurisdiction over the person, it cannot very well compel that person to do anything. Personal jurisdiction is a much more complicated subject than subject matter jurisdiction, and it may very well warrant a short blog post someday, but the short (and admittedly imperfect) description is, a court has personal jurisdiction over you if a) you were served with process personally in the state where the court sits, b) you are being sued for an action that had some effect in the state where the court sits, c) you are a resident of the state where the court sits, or d) you willingly consent to the court having personal jurisdiction over you. So, as you can see from d), unlike subject matter jurisdiction, personal jurisdiction can be overcome if the parties want it to be (and there are reasons why someone might consent to personal jurisdiction).
Who picks the judges in Virginia?
So, most of you are probably aware that in the federal system, the president nominates judges for confirmation by the Senate. You may also be aware that in many states, the state judges are either similarly picked (Governor nominates, legislature confirms), or are elected. Virginia, however, has a fairly unusual system - our legislature unilaterally (without any legal say from the Governor, though he may have a practical say) picks our judges. The way this practically works is that when there is an opening, the local Bar Association interviews candidates and recommends several to the local legislature delegation, and the local legislature delegation then decides who to recommend to the full legislature. It is unusual for the full legislature to go a different route than the local legislature delegation, though it does happen on occasion. Our judges serve 8 year terms, except for the Supreme Court justices who serve 12 year terms, and must be re-appointed if they wish to stay on the bench at the end of their terms (most judges are re-appointed without difficulty, but every now and then one will get voted off). Further, our judges have a mandatory retirement at age 70, although they can continue to serve as "senior" judges and justices after that, in which case they can sit on cases where other judges are not available.
What is a "Demurrer"?
As my boss likes to say, they don't call us the "Old Dominion" for nothing. Virginia courts have a particular love for Latin terms that have long since been abandoned by most other states. While most states have a "Motion to Dismiss" on the basis of "failure to state a claim" (this is Rule 12(b)(6) in federal court, for example), Virginia calls that a Demurrer. Basically that just means you are saying that even if every allegation in the Complaint initiating the lawsuit were true, the plaintiff would not be entitled to the relief the plaintiff seeks. Also, Virginia also still uses the term "subpoena duces tecum" which is the same thing as what other states call a "subpoena for documents."
I'm about to go skydiving, is my liability waiver valid?
So, liability waivers are another thing that might warrant a full blog post some day. Virginia's rule generally, although there are some exceptions, is that you can waive liability in advance for property damage, but not for personal injuries. So, a waiver that says "I will not hold x liable for damage that may occur to my property" is valid and enforceable, but a waiver that says "I will not hold x liable for any injury or death I may suffer" is invalid. Again, there are exceptions, but that's the general rule in Virginia.
Conclusion
Well, I think that about covers it for today. Thanks for bearing with me as I battle the dreaded writer's block!
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