When Finding a Lawyer Be Careful What You Wish For

As always, before reading my post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

I know it has been some time since my last blog post, and as noted last October, you can expect my posts to be irregular and infrequent now, although I do strive to at least try to keep past blog posts up to date, and they are not going anywhere.  Today's blog post will be a little different than my standard format, in that instead of going into a broad principle, I am going to tell a story, and then bring about the point of it.  Nonetheless, I think this is something you should read if you are considering hiring an attorney for your legal needs.  Please note that some specific facts about the story I'm about to tell have been altered so as to shield the identities of those involved.

I have strived, I'm sure not always with success, throughout my career to provide an honest voice when a potential client comes to me about a case.  I try not to sugar-coat things, I try not to make promises I don't know for sure that I can keep, and I try to make sure the potential client has an honest and realistic assessment of his or her case.  I run through best case scenarios, sure, but I also run through worst case scenarios, and discuss what I consider to be the likelihood of each outcome. I'm painfully well aware that this approach to potential clients has cost me clients over the years - after all, I am routinely telling potential clients something other than what they want to hear. My favorite example of this is when potential clients come to me wanting to file an appeal to the Court of Appeals.  The first thing I will tell them, before I even hear a word of the details of their case, is "remember that by my estimate, 85% of appeals fail, so the odds are yours will too."  Nonetheless, I do believe I would rather have fewer clients, but ones who know what to expect, than more clients ready to be disappointed when I cannot deliver what they want.

The value of this approach came to the fore today, and what I saw bothered me so much that I felt compelled to write about it.  Normally this is something I might opine about for my friends on Facebook, but as I thought about it, I realized it more naturally belonged here, so here it is.

I had a consultation with a young woman whose husband had abandoned her a year or two earlier.  She desperately wanted to move on with her life, and came to me about getting a divorce.  I discussed the process with her, what I expected would happen, and the fact that her particular case had some procedural challenges.  She told me she thought my price was right, and that she wanted to hire me as I had come highly recommended to her by someone she trusts.  However, she asked if I could promise her that her divorce would be complete within a month.  Two months at most.  For various reasons, she felt she absolutely needed her divorce to be done within two months.

I told her that I could not make that promise.  That procedural anomalies with her case meant that it would require a minimum of three and a half months to complete, but that four or five months was more likely.  I told her I'd move as fast as I could, but I simply could not promise anything faster than five months, and even that assumed no bumps coming up along the way.  She thanked me, left my office and I never heard from her again.

Today, while I was at a routine filing trip to the courthouse, I happened upon her case file.  Turns out her divorce was finalized this week.  Her consultation with me was in June of 2015.  This struck me so much - that she had come to me desperate for a promise to be divorced within two months, yet here she was finally getting her divorce more than two years later - that I just had to investigate.  And what I found wasn't pretty.

Her divorce was finalized by her fourth attorney.  Her first three had all begun the process for her, then attempted to take various shortcuts around the procedural issues I had discussed with her at our consultation.  It was clear from reading the files that they had been trying to meet her timeline, and in the process, all three attempts failed to complete the divorce and greatly delayed the entire process.  Finally, the fourth attorney did exactly what I would have done, and sure enough, from beginning to end, it took him just over four months to complete the process.

I would note, the fourth attorney's actions did not surprise me.  This is an attorney I know well, and who is on my short list of family law attorneys in Northern Virginia that I myself will refer people to if, for whatever reason, my firm cannot represent them.  This should tell you how highly I think of this particular attorney (after all, referring potential clients is probably the highest praise one attorney can give another within our profession).  So, in that attorney's case, I was not surprised that attorney had done it the right way.  But sadly, I also wasn't all that surprised to see that three other attorneys were willing to make promises they could not keep just to get the client.

In the end, this woman spent over two years waiting to get a divorce she could have gotten in 4-5 months, and probably spent about 3-4 times the legal fees in the process.  And while her request, demand really, was unreasonable, as someone who is not an attorney, she had no way to really know that.  Add in to this that she has other attorneys willing to make these outlandish promises, and it's no real surprise that it took her so long to realize that what I was saying was right.  As attorneys, it should be our responsibility to make sure clients understand the process well enough to know what can or cannot be done.

So, the cautionary tale in all of this is simple.  If you have an attorney telling you nothing but things you want to hear, you should be ready to push back with questions.  If different attorneys are telling you different things, don't be afraid to tell them, directly, what was said by the other attorney.  Listen to their response.  If this woman had reached back out to me, told me what her attorney was planning to do in order to meet her timeline, and asked for my thoughts, I could have explained to her in under 5 minutes why it wasn't going to work.  I never got that chance.

So, if you are looking for an attorney, please be careful.  If you're speaking to an attorney ready to promise that everything you want will be yours, perhaps it is time to speak to someone else.

Virginia Parental Placement Adoption - When the Families Find Each Other

As always, before reading this post, please review our disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

There are many situations in which an adoption might occur in Virginia - one of them, a step-parent adopting their step-child, I have previously covered on this blog.  However, when most people think of "adoption" they think of the image you see on TV - a family adopting a baby or child completely unrelated to them biologically.  In Virginia, there are three basic forms of what I call "stranger adoption" - parental placement adoption, agency adoption, and foster care adoption.

Agency adoption is probably what most people think of in an adoption.  This is when an agency, either a public agency (such as the state's Department of Social Services) or a private adoption agency, already has custody of the child and the biological parents' custodial rights have already been terminated, and the adoptive parents apply to adopt a child through the agency.  Foster care adoption is a sub-set of agency adoption where a child has been placed in foster care pending his or her adoption or the termination proceedings against his or her biological parents, and then after at least 18 months in the foster parents' home, the foster parents decide they would like to adopt the child.  Parental placement adoption occurs where the birth parents and the adoptive parents find each other, and arrange an adoption without involvement by the state or any agencies.

In today's blog post, I am going to cover some of the basics of how parental placement adoption works in Virginia.

Pros and Cons of Parental Placement

First off, for any set of adoptive parents, the first decision to make is what method to choose for adopting.  Parental placement has several pros and several cons.  To many, the biggest pro is that parental placement adoption is substantially cheaper than agency adoption.  In Northern Virginia, between legal fees and other costs, you can expect to spend between $8,000 to $15,000 on a parental placement adoption.  An agency adoption, on the other hand, can cost you $20,000 or more.

Another pro of parental placement adoptions is that you know a lot more about where the child is coming from - you are much less likely to end up surprised by a child with severe issues than if you adopt from an agency.  Finally, many adoptive parents prefer parental placement adoptions because it allows them to form a relationship with the biological parent(s), and they know this is something the biological parent(s) have chosen, instead of something that has been forced on them.

There are some cons to consider, however.  Perhaps the biggest is that a so-called "closed" adoption (where the biological parents don't know who adopted their child) is virtually impossible - you may not be required to provide those parents any information, but they may well be able to find you since they know who you are to begin with.  Another con is that, unlike in an agency adoption, when you begin the adoption process with a parental placement adoption, the biological parents have not yet lost their parental rights, and they can withdraw their consent without cause at any time up until 7 days after their parental rights are terminated, at which time they would get to take the child back.  No contract promising to let you adopt is legally enforceable in Virginia, so if they change their mind, there is really nothing you can do about it.  If you are uncertain of the biological parent(s)' level of commitment to the process, those 7 days in particular can be nerve-wracking.

Babies vs. Children

As you might expect, the vast majority of parental placement adoptions involve infants.  Usually the biological parents and adoptive parents have met prior to the baby being born and begun to make arrangements.  As a result, I will be talking in the rest of this post under the assumption that the adoption will be of a new-born infant.  However, it will be fairly obvious when something I say is specifically applicable to the adoption of newborns, and the process is the same whether the child is a newborn or not.

Who Should Have an Attorney

Ideally, all parties (the adoptive parents and each biological parent) should have an attorney to guide them through the process.  The rules are complicated, and I cannot hope to get to all of them in this blog post.  This process would be daunting for anyone to go through unrepresented, but the adoptive parents are likely the ones most in need of representation.

Exchange of Funds

Many people feel, reasonably, that if a child is going to be the child of the adoptive parents, those parents should share in some of the costs of caring for that child prior to the adoption.  However, out of a great deal of fear of a market opening up to "sell" children, the exchange of funds between adoptive and biological parents in a parental placement adoption is heavily regulated.  Adoptive parents can only pay for very specific things (some examples include the biological mother's pregnancy-related medical costs, food for the biological mother to eat when she is no longer able to work due to the pregnancy, and the biological parent(s)' attorney's fees).  Any funds given outside of these allowed amounts can cause an entire adoption to fall through.  It is usually best to work out a contract with the biological parents of what you will pay and how.  This contract will be legally enforceable, and can be provided as evidence to the court if questions are later raised of improper payments.

Home Study and Father's Consent

Generally in a parental placement adoption, the first two formal steps to be taken are a home study and obtaining the biological father's consent to the adoption.  This is because if you are adopting a newborn, these two steps can be completed before the child has even been born.  A home study is a process whereby a certified agency will conduct an evaluation of you, your home, and the biological parents to determine if an adoption is proper.  A parental placement adoption cannot be allowed to proceed unless the court that will eventually handle the adoption is provided with a positive home study report.  Additionally, the biological father can consent to a parental placement adoption by signing a simple affidavit that can be prepared by your attorney at any time prior to the child's birth.  If the biological parents are unmarried, this is particularly convenient, because once ten days have passed after the biological father signs the consent, he cannot take it back, and does not have to be further involved in the process at all.

Taking Custody of the Child

The next step is to actually take custody of the child.  If you are not adopting a newborn, this is simple enough - it literally just involves the biological parent giving you the child, and signing a sort of power of attorney that you can show to the child's doctors and school officials while the adoption is pending to show that you now have the child.  For a newborn, this is a little more complicated, as this involves having the hospital release the child to you.  Some hospitals simply refuse to do this, and make the biological mother take the child out of the hospital and hand the child off to the adoptive parents once they are off hospital grounds.  Most hospitals, however, will let the adoptive parents take the child home as long as the biological mother signs a number of waivers.

Juvenile Court Hearing

On the day the child is born, or the day the adoptive parents take custody of the child, a petition can be filed in the local Juvenile and Domestic Relations District Court to conduct what's called a "birth mother's consent hearing."  The court cannot hold the hearing until the child is at least three days old, but it will usually schedule a hearing for pretty shortly thereafter.  As part of the process, the court will appoint a Guardian ad Litem, an attorney whose job it is to represent the child, to ensure the child's interests are protected.  It will be the adoptive parents' responsibility to pay the Guardian ad Litem.

At the hearing, the court will ask the biological mother a number of questions to ensure that she is really, truly consenting to this adoption, that it was not coerced, and that funds have not been paid improperly.  The court will also review the home study report, the biological father's consent form, and ask for the opinion of the Guardian ad Litem, who by the time of the hearing will have interviewed the adoptive parents and the biological mother (and the child if the child is old enough).  Assuming the Guardian ad Litem approves and no issues occur with the biological mother's testimony, the J&DR Court Judge will then sign an Order which formally grants the adoptive parents legal and physical custody of the child, and terminates the biological parents' parental rights.  The biological mother has 7 days from then to withdraw her consent, and if she does not, the order is effectively final.

Circuit Court Petition

Once those 7 days have passed, the biological parents are no longer part of the process.  Now the adoptive parents can file their Petition for Adoption in the local Circuit Court.  There a judge will review the home study report and the order of the J&DR Court, and if everything is in order, the judge will enter what's called an "Interlocutory Order."  This Order grants the adoption on a probationary basis to the adoptive parents.  Thereafter, the same agency that conducted the home study must conduct three "investigative visits" to the home of the adoptive parents to review how they are handling parenthood of the child.  The three visits must be completed within six months of each other, and in most cases are usually conducted once a month for three months.

Once the agency completes its three investigative visits, it prepares and sends to the court a report on its investigation.  Assuming the report is positive, the Circuit Court then has the power to enter the Final Order of Adoption.  The Final Order of Adoption is the final document making the full adoption official, changing the name of the child (if desired by the adoptive parents), and formally making the child the legal child of the adoptive parents.  Once the Final Order of Adoption has been entered, the adoption is over.  As an added bonus, except in very rare and limited circumstances, once the Final Order of Adoption has been on the books for at least 6 months, its validity cannot be challenged by anyone for any reason.

Beware of Emotional Scammers

Just one note of caution - while you may not be able as adoptive parents to give biological parents much money, that doesn't mean there aren't scams out there.  Some people try to scam others out of funds, but most just do it for attention.  In the adoption world, we refer to these people as "emotional scammers."  They just thrive on the attention they get from the hopeful adoptive parents, and most adoptive parents are too hopeful to catch the warning signs (especially since they aren't being asked for any money).  As you can imagine, this is frequently devastating to an adoptive couple, and I always warn my hopeful adoptive parent clients to tell me if anything ever seems off, and to just try not to get their hopes up until they actually have the child in their custody.

Conclusion

A parental placement adoption is a very rewarding way to adopt a child, but it is also replete with procedural pit-falls.  For example, the manner of obtaining the birth father's consent, or negating your requirement to obtain it, can be different depending on whether the birth father is an assumed, acknowledged, or putative father - and this is just one of the many hurdles faced when people try to tackle this kind of adoption alone.  As a result, if you are interested in pursuing a parental placement adoption, I would strongly encourage you to hire an attorney from the outset.  Our firm handles these types of adoptions, and if you are interested in our services you can feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

A Brief Overview of Virginia Attorney-Client Privilege Law

As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.  As always, any legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means.  I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof.  Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.

Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.

A Brief History of the Privilege

As you probably know, attorneys have existed in some form or another since the Roman period.  Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England.  There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had.  Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them.  The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.

This is still the philosophical underpinning of attorney-client privilege.  It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages.  It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.

So, What Does Privilege Cover?

Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm.  That's it.

So, a few important things to note about the above.  First, privilege never expires.  Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death.  Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you).  Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged.  Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails.  Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney.  Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).

How Privilege Works

So, now that we know what privilege covers, it's worth discussing how privilege actually works.  So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this.  This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc.  If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained.  In other words, nothing privileged you tell your attorney can be used against you.  Unless the privilege is waived.

How Privilege Gets Waived

So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived.  Privilege can be waived many ways and for many purposes, both intentionally and unintentionally.  It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.

So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do.  The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.

Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm).  It does not matter who does the revealing - it can be you or your attorney.  It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization.  If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them.  If the revelation ends up hurting you, you can also sue your attorney for malpractice.  Nonetheless, the privilege remains waived.

Now, fortunately, this rule about revelation is not nearly as harsh as it used to be.  Courts recognize the supreme importance of the privilege, and protect it diligently.  As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter.  Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.

Similarly, where waivers are found, the scopes of those waivers are very limited.  With very rare exception, the courts virtually never find privilege to be fully waived.  Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed.  For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop.  I also stole Jerry's bike."  Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop."  Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."

As you might imagine, privilege is actually waived routinely in most cases.  This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side.  Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.

Exceptions to Privilege

Now, as you might imagine, there are some exceptions to privilege.  These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable.  There are a lot of exceptions to privilege, but most of them are very fact specific.  Here are the most common exceptions I encounter:

• Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests.  This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
• Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
• A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.

So, as you can see, the big areas where privilege does not apply are when you have a dispute with your attorney, or the communications that would have otherwise been privileged reveal some ongoing or future wrongdoing on the client's part.

Conclusion

Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand.  If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.

Virginia Attorneys' Fees Law - When Do You Not Have to Pay?

As always, before reading this post, please review my disclaimer by clicking the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

"It's their fault that I'm in this mess, they should pay your fees, not me."  If I had a dime for every time I've heard a client say that or something similar to me I'd... well... probably have a lot of dimes.  Attorneys' fees are one of those areas where a particular sense of unfairness hits a lot of clients.  If it's not their fault that they need an attorney (maybe they've been wrongfully sued, or wrongfully accused of a crime, or maybe they are enforcing their rights against someone who refuses to do what they are supposed to), it just doesn't seem right that they have to pay their lawyer and can't get the other side to pay.

Well, there are some situations in which your attorneys' fees can, in fact, be ordered to be paid by the other party, but those situations are exceptions, not the rule, and even they are complicated.  In this blog post I hope to discuss some of the basics (the details would be far too much for one post) on when you can and cannot require the other party to pay for your lawyer, and how such an arrangement actually works.

American Rule vs. English Rule

Much of the "common law" world (the parts of the world that can trace their legal traditions to Medieval England) follow what is known as the "English Rule" in civil lawsuits.  This rule is simple - in a lawsuit, the loser pays the winner's attorney's fees, in addition to his or her own.  The United States, however, despite being a common law country, does not follow the English Rule.  Rather, we follow the "American Rule," which states that, while there are exceptions, barring the availability of one of those exceptions, each party pays his or her own attorney regardless of who wins and loses.

The merits of this Rule can be debated all you want (and this is not a constitutionally required rule, by the way, meaning the various state legislators could change it any time they wanted to if they wished), but it is the law in all 50 states and the federal court system right now.  As a result, you should always enter a legal situation expecting to pay your own attorney.

Now, with that background, it might be worth discussing what the major exceptions are.  In Virginia, there are around three major exceptions.

Exception 1 - Statutory Exceptions

Statutory exceptions are situations where Virginia Law expressly provides for attorneys' fees to be awarded in the discretion of the court.  Some common situations in which courts have the power to award attorneys' fees to a party of its choosing are Family Law cases (including divorce), estate dispute cases, and all civil lawsuits heard by the Juvenile and Domestic Relations District Courts.

Now, the statutory exceptions themselves will lay out in each specific part how the court makes its determination - and not all statutory exceptions are the same.  For example, in a divorce, attorneys' fees are awarded "in light of all the equities of the case" - in other words, the judge is to make an attorney fee ruling he or she considers fair.  In J&DR Court cases, however, attorneys' fees are to be awarded based pretty much solely on the relative ability of the parties to pay.

So, as you can see, the statutory exceptions give a great deal of discretion to judges.  As a result, if you wish to enforce an attorney fee right which is granted by statute, you must convince a judge that you should be awarded such relief.  You cannot simply demand that the other party pay all of your fees.

Exception 2 - Agreement

The next major exception is if the parties have agreed to apply the "English Rule" to their case.  Many contracts, for example, will contain provisions that if a lawsuit is filed based on an alleged breach of the contract, the prevailing party will be entitled to his or her attorneys' fees.

With rare exception, when a lawsuit involves a contract and that contract provides for an attorneys' fee award, the judge is largely without discretion.  If the agreement provides that the loser pays, then the judge must order the loser to pay.  In these cases, it is much more reasonable to demand your fees from the other side at the outset.

Exception 3 - Sanctions

Virtually all court systems have provisions for dealing with lawsuits that are "frivolous."  In Virginia, our provision is Virginia Code Section 8.01-271.1.  This provision states that the signing of any "pleading" (court document) indicates that the person signing it (be it the attorney or an unrepresented party) has a good faith basis for believing that the pleading is reasonably based on law or fact.  If this later turns out to be untrue, and the pleading was filed in bad faith, the lawyer, the lawyer's client, or both can be sanctioned (penalized) by the court.  Amongst the penalties the court may impose is an attorneys' fee award.

Much like exception 1, sanctions are largely discretionary.  If a judge finds that sanctions are warranted, the judge may not award fees at all, or only award some fees.

How Fee Awards Function

If you find yourself in an exception situation where a fee award might be possible, the first thing you need to understand is that your fees are your responsibility first and foremost.  I've had clients say to me "do this, and then send the bill to the other party."  No, that's not how it works.  You owe the money to your attorney, and it is your responsibility to pay, even when the court has awarded you your attorneys' fees.

If the court awards you fees, it can come in two forms - an order to pay or a judgment.  As I've discussed before, an order to pay is a ruling that requires the person to pay under penalty of contempt of court.  A judgment, however, only creates the duty to pay on paper, and then you still have to engage in post-judgment collections to get the money.

The easiest way to tell which situation you are in is to see if the judge provided a payment deadline.  If they did, then it's probably an order to pay, and if they did not, then it is probably a judgment.  More generally, most (but not all) attorneys' fee awards arising out of agreements are judgments, and most (but not all) attorneys' fee awards arising out of sanctions are orders to pay.  For statutory exceptions, it generally depends whether the case is "in law" or "in equity" - so divorce attorney fee awards are usually orders to pay, but estate dispute attorney fee awards are usually judgments.

So, the fact that some attorneys' fee awards are just judgments that must be garnished or otherwise collected should tell you right away that you must still pay your attorney first, but then you can try to get that money back.  Even orders to pay, however, do not relieve you of your obligation to your attorney, since the other party may still refuse to pay.  Most importantly of all, however, almost all attorneys' fees awards (both judgments and orders to pay) are dischargeable in bankruptcy, so if the other party declares bankruptcy, you can't collect the fee award, and you still have to pay your attorney.

In short, there is virtually no situation in which "do this and send the bill to the other party" is actually acceptable.

Conclusion

There are few things more frustrating to a wronged party that realizing that you still have to pay for your own attorney.  While there are exceptions, these are frequently hard to understand, and harder still to enforce.  If you'd like to discuss whether an attorney fee award is possible in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com for a consultation.  Our initial consultations are free for up to half an hour!

Hiring a Lawyer - Making the Most of your Initial Consultation

As always, before reading my post please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Let's say you have a legal crisis.  You have been arrested, you have been sued, you need to sue someone, you need a divorce - whatever it may be, you are in a bad place and need to turn to the legal system to help you.  After reviewing your options, you decide you need to have a lawyer.  How do you pick who will represent you?  Well, for most people, after doing research, talking to friends, looking online and so on, they will call a lawyer's office (or several, so they can compare) and set up an initial consultation.  In that initial consultation, they will seek to learn what the lawyer can do for them, and decide whether or not to actually hire that lawyer.

Many lawyers (my firm included) offer free initial consultations, but most do not.  That being said, most of the ones that do not offer free initial consultations still charge a discounted rate for the initial consultation.  Regardless of whether or not you are paying, however, the vast majority of initial consultations are limited to half an hour.  In this blog post, I will discuss what to do and what to look for so that you can use your half hour to convey to the lawyer the most information possible, get from the lawyer the most information possible, and help you make an informed decision about whether or not to hire that lawyer.

What you should bring to your consultation

In some ways, your consultation begins before you even leave home.  This is because you need to decide what to bring with you to the consultation.  While it is hard to make generalizations about what you should bring (each case usually has its own requirements), you should bring all relevant documents.  If you're being sued, for example, at a minimum you should bring the papers that were served on you.  If involved in a contract dispute, bring the contract.  Any documents relating to the case that have been given to you by the other side, any formal documents you have sent the other side, etc.

If you are uncertain, usually when you schedule your appointment you can ask the receptionist what to bring.  The receptionist will usually have a list, or be able to get one quickly from the lawyer you will be meeting with.  It is very important, however, that you bring these relevant documents.  I've had way too many consultations with people who wanted me to assess their liability under documents that I didn't have in front of me to review, and by the time they got them to me, they'd already used up their free consultation.

Introduction and Background - 3 minutes

To lead off your consultation, don't talk about the case itself too much.  Instead, let the lawyer know who you are.  What got you to where you are at today, what has been going on in the days, months, even years leading up to the legal situation you are in.  Why might this have happened?  What might have been done to avoid it?

This background information lets us get a firmer grasp on the case than if we just dove right in, and also opens up potential ideas for settlement right from the start.  For example, when I represent tenants, two tenants with the exact same problem might have very different needs - one who has been a happy tenant for years and this is the first problem to ever arise may just need the problem fixed, while one who has been miserable and this is the straw breaking the camel's back may be more in need of terminating the lease than getting the problem fixed.

Ultimately, you should aim for the introduction and background portion of your consult to be around 3 minutes long.  As you can tell, this leaves room for some detail, but not painstaking, extensive details.

Details of your situation - 7 minutes

The next seven minutes or so of your consult should be a discussion of exactly why you're there.  Tell the lawyer what situation you are in, what has transpired so far, what efforts (if any) you have made to resolve your situation, and give the lawyer the documents you brought to review.  Talk to the lawyer about what your position is on any allegations made, or what allegations you have to make.  This is, in many ways, the "meat" of your consultation - the part that lets the lawyer know what's really going on.  This is where we learn what kind of case we are truly facing.

Outline your goals - 3 minutes

Spend the next three minutes talking about what you want.  Provide the lawyer the "best-case scenario" - the outcome that gives you everything you want.  But also provide the lawyer your "minimum" scenario - what is the least you'd be ok with to resolve this matter.  Talk about what it is you really want to get out of your case.

Discussion with lawyer - 7 minutes

At this point, the lawyer should have all he needs to start presenting to you what he can do for you.  Give the lawyer this opportunity to outline to you his analysis of your case, your legal strengths and weaknesses, and the outline of his proposed strategy.  Feel free to interrupt with questions throughout this time period.

The "cost" discussion - 2 minutes

With 2/3 of your consultation now done, this is the point at which to direct the lawyer to discuss how much this is all going to cost you.  The lawyer should outline the fee, the basis for the fee, how much of a deposit you will be paying, etc.

Question and answer session - 8 minutes

The rest of your consultation should be spent with the lawyer answering any and all questions you have.  These questions should range from questions about your case itself to questions about how the lawyer will handle your case and how you will be billed.  This should give you the final pieces of information you need in order to make your decision.

Some questions to ask

So, having never spoken to a lawyer before, it's natural to not know what kinds of questions you should be asking that lawyer.  Here are some of the basic questions that I think everyone should be asking in an initial consultation:

• Will you be the lawyer representing me, or will it be someone else in the firm?
• How much of the work will be done by legal assistants/paralegals?
• (For hourly rate cases) What is the hourly rate for each attorney and legal assistant/paralegal in the office?
• What is the minimum time charge per task (or "to how many minutes is your work rounded when billing")?
• Is my fee deposit refundable?
• Is your billing rate negotiable?
• How many cases in this practice area have you handled before?
• How many cases like mine have you handled before?
• How quickly do you typically respond to phone calls and e-mails?
• How many active cases are you handling right now?
• If you were in my shoes, and you couldn't hire yourself or your firm, what attorney/firm would you hire to represent you?
• What do you do to stay on top of changes in the law?
• From what you know of my case so far, what is my worst case scenario?
• If you were representing the other side, how would you argue their case?

Look for specific answers to these questions.  A lawyer who is being evasive may be hiding something from you ("it's hard to predict" or "it depends" are perfectly reasonable answers, but shifting subjects, downplaying your question, etc. is not).  If another lawyer will be handling most of your case, ask some of the above questions about that lawyer.

Be skeptical if the lawyer gives a large number or says "a lot" to the "how many cases like mine have you handled" question - every case is unique, and a lawyer should make clear that he understands that he probably hasn't handled a case just like yours before.  A lawyer unable to point to other lawyers who are good is one you should also be wary of - chances are this means the lawyer has been over-emphasizing self-promotion throughout your consultation.  Similarly, be wary of a lawyer who cannot put together a reasonably strong argument in support of the other side - he is much more likely to be blind-sided while preparing your case.

Conclusion

Hiring a lawyer can be a very scary prospect for those going through the legal system for the first time.  Much of the purpose of an initial consultation is to help guide you through that process so you can be comfortable with your choice.  If you are in a legal crisis in a practice area we handle (family law, landlord/tenant law, contract disputes, appellate litigation, etc.), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation.  Initial consultations at our office are free for up to half an hour!

Getting More for Less - Some Good Reasons to Hire a Small Law Firm

As always, please review my disclaimer before reading this post by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

In looking over my old blog posts today, it occurred to me that I have spent a great deal of time now discussing the law and the details of practicing law.  It has been months, possibly even years, since I last talked about relationships between attorneys and clients.  Today I want to change that.

I have never hidden the fact that I am not one of these fancy, wealthy, big law, big city, workaholic attorneys.  I work for a small law firm, generally handle my cases entirely on my own, work five days a week, and get home in time for dinner with my family almost every night.  The experiences of a small law attorney is very different than the attorneys portrayed on TV.  Our clients frequently are different, too.  Our clients are generally reliably middle class - too poor to afford the fancy downtown law firms, not nearly poor enough to qualify for pro bono assistance.  Given the size of the various "classes" in America, then, it should be no surprise that, in actuality, the vast majority of attorneys work for small law firms, and the vast majority of people who retain attorneys, retain attorneys from small law firms.

Nonetheless, that snapshot of our client base is not complete.  We do, on occasion, get the Fortune 500 executive, large business owner, or wealthy inheritor in our doors, even though they could afford those downtown attorneys.  On one occasion, I asked one of our wealthier clients why he chose to "go small."  His answer ("I want an attorney who's actually been in front of a judge before") made me realize something I hadn't thought about before - even when you have the option, financially, to retain a large law firm, there are actually many reasons to still go with a small law firm.

In today's blog post, I will discuss some of the reasons that I, personally, feel like "going small" is frequently the right choice.

Some basic background

To lead off, I want to be clear that there are many situations where, if you can afford representation from a big law firm, that is probably the direction to go.  Multi-million dollar mergers and acquisitions, extremely complicated lawsuits with millions of pages of documents, and other high-end business representation is typically best served by big law firms.  By and large, this blog post will be talking about personal litigation.  As in cases where you, yourself (not your business) are the party involved.  While some of this can apply to business litigation and other business work as well, by and large, I am referring to personal matters in this post.

"Going small" supports your community

This might be an odd point, but it's worth considering.  There has been a growing appreciation over the last decade or so for "small businesses."  This is a well-placed appreciation.  Small businesses keep money local, help our local community (by hiring people) and help our local economy (by spending money within the community).

It may be odd to think of us this way, but small law firms are small businesses.  A small law firm rarely has more than one office, all of its money tends to be spent locally, and all of its employees (including the lawyers) live locally and spend locally.  Just as with any other small business, when you retain a small law firm you are supporting your local community and local economy in a way that you simply don't when you hire a large law firm.

You get more varied experience for less money

In small law, since we generally do not have wealthy clients, we have to rely on having a large volume of cases to keep our lights on.  The result is that we tend to see a much wider variety of cases than your typical big law firm does, meaning that we could very well be more prepared for the issues to arise in your case than a big law attorney would be.  All of that, even though we cost less than our big law counterparts.

You get more practical experience for less money

I have been practicing law for more than four years now.  In that time, I have appeared in court hundreds of times, argued contested hearings scores of times, and handled numerous contested trials (even multi-day trials), all by myself.  My classmates from law school who are in large law firms by and large haven't even seen the inside of a courtroom yet - and they're the ones in their firm's "litigation" practice - but their billing rate is substantially higher than mine.  You can pay less money by hiring a small law attorney with the same number of years of experience, and substantially more practical courtroom experience, or you can spend a similar amount of money to hire a small law attorney with many more years of experience, and incalculably more courtroom experience.

We get to know you and your whole case

I spent the summer after my second year of law school in a large law firm.  You've probably heard of the "gilded" summer associateships at big law firms - the ones with the obscenely expensive events, obscenely high pay, ridiculously garish parties, etc.  Well, I had one of those.  It was an amazing summer, an experience I will truly never forget, and one that I cherish to this day for a lot of reasons.  What I will also never forget, however, is how we handled clients.  Clients weren't really clients, they were numbers.  I would enter into a database the "client number" for all client work I had done that day, and I would know basically nothing about the case except for the particular issue I was working on.

In small law, I know the client, I know the case, and I know every issue in the case.  If you want to know what's going on in your case, you can call me and get an answer from me, not some junior associate who's only worked on one element of your case.  That's the kind of personal relationship you rarely get with an attorney in big law.

Conclusion

The reality is, even when you have a choice, there are lots of reasons to choose to hire a small law attorney over a big law attorney.  This blog post has summarized some of them, but there are more.  If you are searching for an attorney and have a choice, I hope you "go small."  If you want to learn more about what we can offer, call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour (something else you generally won't get with big law)!

Civil Discovery in Virginia - Taking the Surprise Out of Trial

As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link.  As always, any principles discussed apply only to the Commonwealth of Virginia.

Introduction

I'm often asked by friends who have observed or heard about a trial, how it is that one side has in their possession so many documents belonging to the other side, or so much information about the other side.  As time has gone on, it has become clearer and clearer to me that there is probably no part of civil litigation that is less well understood than discovery - the process of obtaining information in order to prepare for trial.  This is unfortunate, because, in my opinion, 80% of relevant cases that go to trial are won or lost in discovery, and if you don't have an attorney and don't understand the process, you are suddenly at a huge disadvantage.

In today's blog post, I hope to provide you with the basics of how discovery works in Virginia.

What is Discovery?

Discovery is, to some degree, what it sounds like.  It is the process by which you "discover" relevant information, documents, evidence, etc.  Now, there is discovery in criminal cases and civil cases, but as I do not practice criminal law, I am only covering civil discovery in this post.  Criminal discovery has quite a few differences.

When is Discovery available?

So, discovery is actually not always available to civil litigants.  Under the Rules of the Supreme Court of Virginia, discovery is only fully available to civil litigants going to trial in the Circuit Court (for a reminder of what the various trial courts in Virginia are, see this blog post).  In the Juvenile and Domestic Relations District Court, it can become partially available upon motion of a party and granting of the motion for good cause shown by the judge.  In the General District Court (both regular and small claims division), discovery is not available at all with one exception.

Now, you may remember that there is something called an "appeal of right" from the Juvenile and Domestic Relations District Court and the General District Court (again both regular and small claims division) to the Circuit Court, where a whole new trial would be held.  If you have such a case - you already had a trial in the J&DR or General District Court and now it's been appealed to the Circuit Court - discovery is available during that appeal.  Again, when you appeal to the Circuit Court, you basically act like the lower court trial never happened, and you're just having a regular trial in the Circuit Court.

Ok, so how does discovery work?

So, discovery works by you, or your attorney, sending out various documents that require responses in various forms, response to which can be compelled by law.  There are five forms of discovery in Virginia, each providing different bits of value to a case:  Interrogatories, Requests for Production, Requests for Admission, Subpoena for Documents, and Depositions.  Regarding the previous section of this post, depositions are not allowed in the J&DR Court, even when discovery has otherwise been authorized, but subpoenas for documents are always allowed, and the other three forms are allowed when discovery is authorized.  In the General District Court, subpoenas for documents are allowed, but the other four forms are never allowed.  Here's how each type works:

• Interrogatories:  Interrogatories allow you, or your attorney, to serve questions on the other side, which must be answered under oath.  This is a good way to get some basic information (bank account balances, their position on different issues, etc.), and an early idea of what kinds of things they might say on the witness stand.  Interrogatories must be responded to and signed under oath within 21 days (with some exceptions) of being served.  You are limited, however, to only asking 30 Interrogatories (and each sub-part of an interrogatory counts as a separate one) unless you get prior permission from the court to ask more.
• Requests for Production:  Requests for production allow you, or your attorney, to serve a list of items (documents, items, videos, etc.) on the other side which they then must allow you either access to, or send you copies of.  The access must be granted, or the copies received, within 21 days (with some exceptions) of the requests being served.  There are no limits to the number of Requests for Production.
• Requests for Admission:  Requests for admission allow you, or your attorney, to serve a list of statements on the other side, which they must admit are true, or deny being true.  If admitted, that fact is accepted as true for the remainder of the case, and cannot later be denied.  This is a fantastic way to get certain undisputed facts out of the way, and to authenticate documents and other evidence.  Additionally, failure to respond to Requests for Admission within 21 days (with some exceptions) is automatically considered an admission of each statement.  There are no limits to the number of Requests for Admission.  [Please note that effective July 1, 2015, this is scheduled to change.  After July 1, 2015, you will still be allowed to ask an unlimited number of Requests for Admission which are solely for the purpose of authenticating documents, but all other Requests for Admission will be limited to 30.]
• Subpoena for Documents:  A subpoena for documents allows you, or your attorney, to serve a list of items (documents, items, videos, etc.) on the other side which they then must allow you either access to, or send you copies of.  This must be done by the date specified on the subpoena, so long as it is a reasonable amount of time after service.  This is usually used for non-parties, since it is the only way to compel them to respond, but you can serve subpoenas for documents on opposing parties as well.  Requests for Production are usually preferred where available, however, because the subpoena statute allows the requestee to refuse to respond until compensated for the time and expense of preparing the response, whereas responses to Requests for Production must be made at the requestee's expense.
• Depositions:  A deposition allows you, or your attorney, to take a witness's sworn testimony prior to trial, usually in the office of the deposing attorney.  A deposition can be taken of either party, or non-parties (compelled to attend by subpoena).  A deposition is a good tool for previewing what a witness might say on the stand, or learning information that might be worth following up on with further discovery and investigation.  A deposition generally cannot be used in place of testimony at trial unless a special circumstance exists, the use is agreed to by opposing counsel, or it is being used solely to impeach the credibility of a witness if the deposition being used is of that same witness.

What happens if the other side/non-party witness won't cooperate with Discovery?

There are a number of remedies available when the other side doesn't comply with discovery.  With Requests for Admission, you can simply request the court treat all statements as admitted, and that's that.  As an additional note, if someone denies a statement in a Request for Admission that is later proven true, you can recover your attorneys' fees for the cost it took to prove that statement true.

For Interrogatories, Requests for Production, a subpoena for documents issued to the other party, or a notice of deposition issued to the other party, you can file a Motion to Compel.  This is a motion asking the court to order the other side to comply.  As an added bonus, barring some substantial justification for the other party's actions, the court is required to award you your attorneys' fees expended for bringing the motion to compel.  If they still don't comply with the Compel Order, you can file a Motion for Sanctions, where the court gets a great deal of latitude for what it can do, ranging from barring a side from contradicting your evidence or presenting evidence on a certain topic, barring a side from presenting evidence or witnesses at trial altogether, or even dismissing a case outright.

For subpoenas for documents, or subpoenas to appear at a deposition, issued to non-parties, you can file for a Rule to Show Cause with the court.  A Rule to Show Cause requires the subpoenaed person to appear before the court and explain why they should not be held in contempt.  If they can't do that, they could very well be held in contempt and sent to jail (or face other penalties), although a judge will usually give them a chance to come into compliance first.  If they do not show up for the Show Cause hearing, a capias (bench warrant) for their arrest will be issued.

As a final note, if it turns out another side has intentionally withheld documents in bad faith (for example, by pretending they don't exist, rather than stating a good faith objection to providing them), sanctions can be quite harsh.  A false statement in response to Interrogatories, since they are signed under oath, or in response to a question during a deposition, can be grounds for a perjury prosecution.

What should I do if I've been asked questions I don't think I should have to answer?

Well, let me start off by saying that discovery is very broad.  Something does not have to be admissible at trial for it to be discoverable.  Something does not even have to be relevant to your case - so long as it is calculated to lead to relevant evidence.  For example, your best friend's address and contact number may not be relevant information to your divorce case, but if your best friend knows who you've been having an affair with, and the other side needs that address and contact number to get in touch with your best friend and find out, then that information is calculated to lead to relevant evidence and is discoverable.

Still, discovery is not an excuse to completely upend your life.  If something is not reasonably calculated to lead to admissible evidence, or it seeks information that would violate attorney-client privilege, or it is clearly designed just to harass you, for example, you can simply respond to that request by objecting and stating your objection.  They may file a motion to compel, at which time the court will rule on your objection, but you will not be penalized extra for not answering when you did, in fact, object.  There are a whole range of reasons you can object to discovery, and I can't get into them here, so I would advise consulting an attorney if you are trying to figure out how to respond.

Now, if you are a non-party subpoenaed for documents or for a deposition, the process is a little more complicated.  Rather than objecting, you must file with the court a Motion to Quash your subpoena.  The court will then decide if the subpoena should be quashed (treated as though it never existed), partially quashed, or completely allowed.  Again, there could be any number of reasons for a potential motion to quash, so you should consider consulting an attorney.

I think I have to answer this question, but I am terrified of what might happen if my answer gets out to the public.  What can I do?

So, sometimes discovery requires us to turn over private, embarrassing information.  Given that our trials are generally public record, and the other side may not have the same incentives for protecting information that you do, this means that information could get out to the public.  Fortunately, there is an option - you can file a motion for a protective order.

Now, in discovery, a protective order is nothing like what we normally call a "protective order" - which is a personal restraining order.  A discovery protective order allows the court to place restrictions on discovery, such as forbidding a side from publicly disclosing information they receive in discovery.  In some cases, a judge can even forbid a lawyer receiving a discovery response from sharing it with his or her client.

That being said, you must understand that in America we take the non-secrecy of our courts very seriously, and a protective order won't be issued lightly.  You have to make a fairly compelling case for one - that you would be very likely to be substantially harmed by the public dissemination of this information.  You are most likely to succeed if we are talking about something like medical records, or other things that we have a long public policy of allowing people to keep private.  Just because something is embarrassing, however, is not going to be enough.  Additionally, a protective order will not be issued just to protect you from your own wrongdoing - the classic example of this in family law is someone whose employment contract includes a "morality clause," and they could be fired if their employer found out they committed adultery.  In that case, a protective order is still unlikely to be issued.

Conclusion

Discovery is a long and often tedious process.  Nonetheless, it is typically the most important part of a case.  Doing it wrong, could cost you far more than you think.  If you have a case that is discovery eligible, you would be well advised to have an attorney.  If you'd like to speak to one about discovery, check out my initial consultation policy above, and if you're eligible, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

True Virginia Law: Some Common Myths About the Law

As always, before reading my post please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder.  Honestly, I was horrified.  The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling.  In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.

To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession.  In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.

Myth:  Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality:  Lawyers are strictly forbidden from lying, in any capacity, in their work.  Lying during a trial or other official proceeding is a quick way to get disbarred.

In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading.  Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess.  First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses.  Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.

I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition.  As stated above, attorneys cannot lie.  My post on legal ethics gets into this in more detail.  There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.

As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.

The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you.  If she does, you should report it to the Bar immediately.

Myth:  Lawyers are generally greedy people who are only interested in you for your money.
Reality:  Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level.  Like all professionals, however, lawyers do expect to get paid for their work.

This particular myth is one that bothers me.  Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband.  What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.

We are professionals, like doctors, accountants and carpenters.  We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us.  That doesn't make us greedy.  This is our job, just like you have yours, and this is how we make our living and feed our families.  I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them.  These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.

If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.

Myth:  We have way too much litigation today.  We need tort reform to bring about some sanity.
Reality:  Litigation rates in the United States peaked in the 1970's and have been dropping steadily since.  Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.

My answer in the "reality" really covers this a great deal.  The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years.  While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits.  It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.

All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous.  Let me give you an example.

Let's say a company made a commonly used product that is moderately dangerous.  Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.

Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level.  Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.

Finally, a woman purchases the product and injures herself with it.  Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life.  In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product.  Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?

Well, I've just described to you the infamous "McDonald's Coffee" case.  McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings.  The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident.  This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control."  As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.

The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws.  This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.

Myth:  It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality:  It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.

I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court."  The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling.  In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.

When a court rules against someone I always tell them to listen carefully to why the court is doing so.  Most judges will give some explanation of their ruling.  Nine times out of ten, where a result is unfair, it's still the result mandated by the law.  In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible.  Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence.  What I remember most, however, was the exasperated exchange she finally had with the judge.  When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"

The judge responded, "I'm sorry, ma'am, but this is a court of law.  It is only a court of justice when that justice is authorized by the law."

That judge was exactly right.  We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.

Myth:  The courts are biased against men/women, minorities, the poor, etc.
Reality:  In my experience, I have seen almost no evidence indicating that the courts are biased against anyone.  Some individual judges, maybe, but the courts or legal system as a whole?  Almost definitely not.  That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.

I hear this myth all the time.  Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod.  I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous.  Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone.  As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.

Nonetheless, my own experience tells me otherwise regarding "the system."  I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked.  Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.

Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class").  This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.

In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer?  Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed.  What about the people right at the threshold?  The people who have little money, but just enough to not get a court-appointed attorney?  Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.

The same is true to some extent in civil cases.  While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours.  Again, there are income qualifications, and those on the cusp are left out to dry.

What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings.  This is a problem, and one that begs a more creative solution.

Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded.  The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are.  That way, you can hire an attorney you can actually afford.

Some legal aid agencies also do this.  The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney.  I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country.  I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.

Conclusion

There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here.  You can look for this to be a continuing series in the future.

Virginia Law and the Blog Part II - More Common Questions About Past Blog Posts

As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed herein apply only to the Commonwealth of Virginia.

Introduction

About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written.  I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had.  I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post.  To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.

As I said last time, sit back, relax, and see what you can learn from the questions of others.

"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees.  Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up.  I just had a consult with a lawyer who charges a 'refundable retainer.'  What is that?"

Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy.  It sounds like that's what's happening here - the lawyer is actually charging a fee deposit.  That being said, I cannot be certain without reviewing the actual fee agreement.  It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully.  Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.

"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to.  Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip.  I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones.  What should I do?"

No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous.  The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable.  I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client.  In smaller communities, however, this happens regularly.

Here's the thing to remember - the other lawyer can talk to you about anything other than the case.  Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you.  He won't want his son's field trip ruined any more than you want your daughter's.  This is also a good time to remember that while your case is your life, for the lawyer it's his job.  No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.

If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case.  If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc.  Just use common sense, the lawyer will do the same, and you should probably be all right.  Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.

"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only.  You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete.  Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me.  Do I have any other options?"

Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order.  I lay out the procedures for pursuing a protective order in a post from April.  Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member."  The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning.  If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years.  During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.

The down side to this approach, however, is that you actually have to have some evidence that you are in danger.  Just an underlying fear or intuition isn't good enough.  A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order.  Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.

"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest.  What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"

It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them.  There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.

The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000.  So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage.  Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event.  Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.

To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills.  To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.

"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien).  Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago.  I didn't know at the time, and he didn't list my debt on his petition.  What is the status of my judgment?"

Well, the bankruptcy code puts a lot of burden on the creditor.  If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged.  If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed.  Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.

Conclusion

As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future.  As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post.  If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation.  Our initial consultations are free for up to half an hour!