(Avoiding Legal Problems Before They Occur)
A Note from Mr. Hunter:
Thank you for taking us up for an offer for a free power of attorney. Below is some information that you must have if you are to understand the power of attorney so you can use it properly and a "Legal Health Checkup" that I hope you will complete and let us review. As always, we will honor your confidentiality.
1. Durable General Power of Attorney: these powers of attorney allow the person receiving it so sign most legal documents in the name of the person issuing the power of attorney. She recipient becomes his "attorney in fact" for opening up accounts, signing return receipt cards, and even conveying real estate. Just remember to record the power of attorney in the county clerk's office if you intent to use it to convey real estate. The title attorney will not certify the land's title unless he finds it on record. BE SURE that you trust the person receiving the POA because he/she can empty your bank account, and send you a post card from the beach! If you doubt it, I know of a case where the "attorney in fact" conveyed her father's house TO HERSELF! We were able to reverse that, but it was expensive.
2. Special Power of Attorney: Special POA's are designed for a particular purpose. In the military, we often prepared special POA's so that a spouse could sign all documents relative to the transportation of household goods. A special power of attorney can define, as narrowly as you choose, the purposes for which someone can sign a legal document for you.
3. Medical Power of Attorney: the two powers of attorney listed about can be used the moment they are delivered, and, being "durable", they can be used even after the signor becomes incapacitated, say by a stroke. But, a medical power of attorney can be used ONLY if the signor has lost the ability to communicate his wishes with his/her doctor. This person needs to know the signors values and wishes, especially regarding end of life care, resuscitation, etc.
4. Living Will: I do not prepare living wills. Having heard the hype and the scare tactics, "You don't want to be hooked up to some machine do you?", I decided that the big push for living wills is from insurance companies and hospitals who want to save money. They will provide you a living will form at no charge, but I believe careful selection of the medical attorney in fact is sufficient for most people. I certainly do not want the doctor pulling the plug on me if my wife or son has decided, based on their knowledge of my wishes, that I am not ready to go. But it is your choice.
LEGAL CHECKLIST
1. Do you or a loved one need:
a. Durable General Power of Attorney? _______________________________
b. Special Power of Attorney? _______________________________
c. Medical Power of Attorney? _______________________________
2. Do you, your spouse, your parent, child,
or friend need a will? _______________________________
(Please note: for most of us the answer to this is yes. And, for heaven's sake, do not download a form and do it yourself. There is a statute defining a "holographic will". That is a handwritten will. There are so many things that can go wrong, I cannot count them. And, a will has requirements such as the number of witnesses, dispositive language, who may witness a will, etc. Get any one of those requirements wrong, and your heirs may be inheriting a lawsuit. And make sure your lawyer is part of the signing ceremony, NOT his/her staff!!
3. If you need a will, do you need it to be videotaped? _____________________
(Note: the answer to this is yes if someone is going to be unhappy with the contents of the will. No matter how good the intentions, a will signed in secrecy, or one that disinherits a child or spouse, is going to cause resentment and perhaps a lawsuit.)
4. Have you reviewed your insurance coverages in detail so you know what the following are;
a. Personal injury liability coverage? _____________________
b. Property damage liability coverage? ____________________
c. Med Pay (medical payments) coverage? ____________________
d. Uninsured Motorist (UM) coverage? ____________________
e. Underinsured (UIM) coverage? ____________________
f. A "Personal Umbrella" ? ____________________
(Note: the short summary of these coverages is":
a. and b., above, protect you if you negligently injure or damage someone else. They pay if you are at fault.
c. Pays your or your passenger's medical bills, up to a limit such as $5000 to $25000, before any other coverage kicks in. It can be a lifesaver.
d. Protects you in case the guy/gal who injures you was driving with no insurance.
e. Protects you if the other guy who injures you does not have ENOUGH insurance. $20,000 of coverage is nothing for a person who spends a month in the hospital or a week in ICU. And,
f. Is exactly what it says, just like an umbrella, it is coverage everything else, backing it up, and protecting your assets. Usually it is at least $1,000,000, and be SURE your umbrella coverage includes UM and UIM! This can make the difference between bouncing back and financial ruin.
5. Do you have an elderly relative or mentally challenged relative or friend who needs protection? _______________________________________
(Note: Of course, if it is protection from abuse abuse, call the WV Dept. of Health and Human Resources, DHHR, Adult Protective Services. But what if someone is handling the elderly person's affairs and lining their own pockets, or inducing them to sign a will or deed against their wishes or without their understanding? Recently an "old friend" of the decedent (dead person) managed to get herself named as beneficiary in a $100,000.00 life insurance policy. Another woman got her friend to deed her her house for $100! There are ways to protect such persons before the lawsuit is needed.)
6. Are you, your adult child, your parent, or your friend beginning to sense the marriage is going downhill? _________________________________
(If so, note: a remarkably few people spend the $200-$500 for a legal consultant, before they know for sure a divorce is coming, to help evaluate the options. A competent, honest lawyer will not lobby for a divorce. She/he will tell you the rules of the game, give you copies of the statutes, share important forms and checklists and, where appropriate, help you to find a trained expert, marriage counselor, CPA, realtor, financial planner, or doctor to help protect your, or their, interests, and chart a plan of action.)
7. Do you know someone trying to do their own divorce? ___________.
(If so, please urge them to read my blog, www.burtonhunteresq.blogspot.com to see examples of horror stories of persons who made that mistake. And then call, or have them call, me. 304 472-7477.
7. Are you or a loved one planning a second or "September" wedding, and wonder if you need a "prenuptial agreement"._________________________________
(Note: Surprisingly few need one, but most people are hesitant to visit a lawyer to discuss their options. It is so sad to meet with a party to a divorce who made the wrong choice and now finds their unfaithful or alcoholic spouse owns half their parents' home place, or their car, or other property. And imagine the shock to a person, married only a year, who is facing the payment of lifetime alimony! Spending $200-$500 could be the best investment you ever made.)
8. Have you or a family member or friend been injured by a negligent driver, store employee, or employer, but are afraid to speak to a lawyer because, "I am not that kind of person." or "I don't want to sue anyone."? What kind of person do they mean? One who needs funds for medical bills, to replace lost wages, or just to have a fresh start?! We all could be such a person but we prefer to think we will never be injured by an at fault person. _______________________
(Note: talking to lawyer in those circumstances costs nothing, and turning your claim over to a good lawyer, REDUCES, rather than increases, the chance you will become embroiled in a lawsuit. You pay no fee unless the money is recovered.)
9. Do you have a neighbor encroaching on your land, using your right of way, cutting your timber, of siphoning off your gas? _________________
(Then you need to talk with a lawyer.)
10. Do you have any legal problem where you just need to ask a lawyer a question or two? _____________________________________________________
If you have answered yes to any of the above, Mr. Hunter and his staff will be happy to set up an appointment at your convenience. Or just call him before 8:00 a.m. at 304 472-7477, or write him through his website, www.hunterlawfirm.net .
Thanks again for taking advantage of our free offer. I look forward to serving you.
Yours very truly;
J. Burton Hunter III
Monday, January 30, 2012
Tuesday, January 3, 2012
Wrap Up 2011 - Hello 2012; Some Personal Reflections
Nancy and I are concluding the year 2011 at the home of her Mother, Marjorie Goodfellow, active and healthy at 90 years of age. She lives in Easton Ct. On New Year's Eve day, we had lunch at The Dressing Room, a restaurant founded by Paul Newman, in Westport Ct., behind the Westport Country Playhouse. Our connections to Paul are many, and it was nice to be dining in his "Dressing Room".
Today I put my Medicare Insurance Card into my wallet. Drat! It is a time for reflection, before we plunge into another busy year.
I never could picture myself this age, but now that I am here, I find myself looking backward and forward, with plenty of clarity and enthusiasm. I relish using what I have learned, for my practice and my private life.
This week I found yet another "lost cousin" on Facebook. We share a pair of great grandparents. I realize I will spend the rest of my life making and maintaining connections with family and friends, and preserving memories of our/their existence and our families'. I will be very sad if I ever lose the zest for that. Why? Innumerable reasons. Perhaps getting portrait quality photos of two great grandparents to download from FB is not important to everyone, but it is invaluable to me. And I can share them with our children and grandchildren.
My love for maintaining connections seamlessly exists with my desire to produce useful and creative writing and to maintain my "professional presence" on the Internet. Everyone needs to make a living, and everyone needs to eat, and I am a natural show off.
A perfect justification of why I will unapologetically project myself, my practice, my ideas, and my experiences into the ether is the way we made our way to "The Dressing Room" restaurant for New Year's Eve.
I suggested to Nancy earlier in the week that we should consider taking her Mother, Marjorie, out to lunch on New Year's Eve. I doubted we would be up for a big night out. She warmed to the idea and discussed the idea with her Mother on the phone. They remembered some familiar names but were not sure which restaurants were open.
Nancy, laptop already open, did a quick Google search of the area, found ten, narrowed to two, then one, potential choices, compared prices, ratings, travel distances, and reservation availability, and made reservations onlinw for four at "The Dressing Room" in Westport. We travelled from Marjorie's home to The Dressing Room in 18 minutes, aided by our new Garmin GPS. There is even a dog park next to the parking lot, for Buddy and Duffy. That's how people select services and products in the Age of Google.
It does not make sense to make such a serious choice any other way. The Garmin got us there ten minutes early and prompted us for a rating as we pulled away. Because of Nancy's careful research, and great food and service and atmosphere, we happily gave it five stars.
On the way to Ct., we of course listened to our XM Satellite radio, with several terrific interviews, reviews of the year's movies, current news, and lively music when Burt began to tire.
On other trips, we listen to books on cd, or a Nascar race, or a football game, or music of our choice. Many people download podcasts. I cannot imagine going back to searching for stations and losing them just when things get interesting. There simply is no going back.
From now on, even hikers on the Appalachian trail, mountain climbers, and ocean going adventurers, will have their technical devices. Why go anywhere without, GPS, streaming video, or a weather report?
Professionally, I am planning for another busy and productive 10-15 years. But, I have seen older lawyers, slowly winding down, learning nothing new, and doing things the "old fashioned way", with a dwindling clientele who sense the lawyer has failed to maintain skills or learn "new tricks". That's not for me.
Although the people of North Central WV still often reflexively turn to the Yellow Pages and word of mouth, even people who use these methods are going to look up their potential lawyer online before hiring.
For my practice, I make sure that potential clients can find lots of valuable information, answers to their questions, informative videos, and personal information about me. Just as finding a good restaurant, hotel, or travel agency is enhanced by internet research, the task of choosing a lawyer is enhanced by using the Internet.
Having spent the last two years actively posting my views, photos, videos, and blog posts, I plan, in the first quarter of 2012, to publish my first book. Initially, it will be an Amazon Kindle e-book; around 200 pages.
I note that a colleague, a Facebook Friend, recently beat me to the punch with his own Kindle book. More power to him. Lawyers need to be more communicative and creative. It is inevitable that a person a chatty as I am, with strong views and things to say, will write about it. If you are afraid to be judged by others, how can you consider yourself a trial lawyer?
And, if your lawyer does not have strong opinions, is not on the Internet, is not learning how to do something differently every day, and is not "tech savvy", you may fairly ask, "Why not?" I cannot think of a good answer.
As we begin the year 2012, I have formed certain conclusions that I will share here:
1. We are now in a full blown, high speed, consumer society. Our financial structure depends upon businesses selling stuff. We are, and will be more in the future, assailed with constant messages designed to motivate us to spend money. Much of the time, the products are harmful. They use up valuable resources, pollute the environment, heat up our world, make us fat, endanger our health, addict us to dangerous substances, induce us to spend money we do not have by borrowing, to be jealous of our neighbors, to be shallow in our thinking, and to be impulsive in our buying habits. Learning how to cope with this pressure will be a key skill for families and their children.
2. Our children are being assailed as never before. Playschool sells war toys. Disney produces movies "for the whole family at Christmas" but cautions they may not be suitable for someone under 13 years.
3. Big Business perceives our children as a huge demographic, not a resource to be protected, but one to be used, abused, and depleted.
4. Decent folks are afraid of the avalanche of change, so they turn to old fashioned, simple, solutions. They turn from science and reason, partly because our educational system is so flawed that it does not produce well-rounded, morally fit, critical thinkers. In their fear and confusion, they turn to simplistic solutions, and to fundamental religious teachers to tell them what to believe, how to act, and who to mistrust and fear.
4. Different societies have different solutions. America and Europe, being products of The Age of Enlightenment and of revolution, purport to support religious freedom and faith in science, but radical, or fundamental, religion, seems to be increasing all over the world. To me, it is cancerous that groups of people have faith in messiahs and prophets who they believe make them superior to other "faiths". Such thought leads to be belief that they must proselytize or impose their beliefs on others. Right now, the worst seems to be radical Islam. But it is growing everywhere.
5. Something we seem to have welcomed with very little critical thought or insights by our news media is "The Arab Spring". As strong, often repressive, leaders are toppled, a "new democracy" is supposed to emerge. Where are the people with learning and perspective to help us understand what this movement is and what its potential for good, evil, and chaos is? And, why did the strong leaders gain power, perhaps to overcome the superstition and deleterious effects of societies bound by fundamental religious teachings. I just read that "The Moslem Brotherhood" in Egypt is forming ties with Hamas in Palestine. This cannot be good for Israel or America.
6. My friend David has guided me to a Jewish blogger, named Barry Rubin, who views changes like the Arab Spring with apprehension, if not dread. Perhaps by reading him, listening to thoughtful commentators like Fareed Zachariah, and reading topical books by knowledgeable people, we can sort it out. For now, I have great concern about whether new democracies created by desperate people who are driven by fundamentalist religious views can ever lead us to an age of enlightenment.
7. By the time this is posted, since I have no Internet Service here, we will have learned the results of the Iowa Caucus. We will probably learn that a somewhat reasonable fellow is headed towards being the Republican presidential candidate. This may be simply because there were so many conservatives to his right who split up the Christian Conservative and Tea Party voters that they aided his selection. The fundamentalists are very determined.
8. As for the Democrats, many liberals are disappointed in our President. As a moderate Republican who keeps threatening to register as an independent, I feel relief that President Obama has been exactly as promised, moderately liberal. I am surprised he has avoided major gaffs, and pleased he has been steady at the helm, happy he has killed a number of bad guy leaders, including Osama, relieved he did not pull out of either Iraq, or Afghanistan, precipitously, and am also relieved that his support of the revolution in Libya did not backfire, yet.
9. But, it is tragic that "First Term Obama" lacks imagination, guts, and creativity. He is presiding over the cowardly retreat of our country from its adventure in space and the incalculable benefits a strong space policy can provide. His efforts to placate the Palestinians and Mid-eastern countries is causing fear, anger, and mistrust with our strong ally Israel without any apparent progress or benefits in return for his efforts to be "in the middle". And, he is blocked by Republicans on tax reform. There is a disparity in incomes that is creating great resentment and anger. "The Land of Opportunity" is failing the middle class.
10. Without doubt, Barrack Obama lacked the credentials to be President when he was elected, but now he has the credentials. The question is, if elected President, can he somehow act decisively and imaginatively enough to make any real progress on our country's and world's major problems? I do not think so. Few people have a hint of how badly we are injured by the burst bubble of our financial system, and the pending shortfalls in Social Security, Medicare, and Medicaid. My tendency is to give him a chance because I am so disgusted with the alternative.
11. Currently, the balance of political power seems to mean that neither side can implement its espoused ideas. We lack the leadership we had with Washington, Jefferson, Adams, and others. Washington's leadership lead us to a balanced government that respected the rights of individuals. This is a miracle considering that Washington was a slaveholder who did not even free his own slaves in his lifetime, but the benefits of bill of rights has eventually been spread to most Americans. Without the strength and wisdom of Washington, our colonial America might have been just as fractious and partisan as we are now.
12. In this age of instant communication, it is probably going to be up to small groups of brilliant thinkers, and pockets of parents, teachers, institutions, and governments to try to hold together our fractured society. The wisdom of the ages is a fingertip away, but so is all the baloney and crappola our foolish cultures can generate.
13. Only our technological progress can prevent the chaos that many smart people predict. Increases in the speed that information is disseminated and processed, and breakthroughs in medicine, genetics, economics, transportation, and the sciences may save us. That is where I am placing my hope. And in persons of wisdom and good intentions.
14. With luck, China, Japan, and Russia will succeed brilliantly in their space programs. Only fear of their domination, jealousy, or our inherent competitiveness, will get us back in the game in time to get colonies on the Moon, Mars, in space stations, and elsewhere. Right now, ALL OUR EGGS ARE ON ONE BASKET.
15. We can pray that the essential resourcefulness of our people, who were once driven by a desire to explore, and succeed, will reappear in time.
16. Finally, back to my own little world, I intend to write, call, and visit, family, friends, and colleagues on a regular basis, to be the best lawyer I can be, to be the best husband, father, grandfather, and son in law I can be. I will continue to set out my views and invite others to contribute or criticize.
17. Since I love technology, new devices, new tools, and new ideas, as long as my mind is strong, I will exercise it. This is the last part of my first book. I hope it makes some sense.
Today I put my Medicare Insurance Card into my wallet. Drat! It is a time for reflection, before we plunge into another busy year.
I never could picture myself this age, but now that I am here, I find myself looking backward and forward, with plenty of clarity and enthusiasm. I relish using what I have learned, for my practice and my private life.
This week I found yet another "lost cousin" on Facebook. We share a pair of great grandparents. I realize I will spend the rest of my life making and maintaining connections with family and friends, and preserving memories of our/their existence and our families'. I will be very sad if I ever lose the zest for that. Why? Innumerable reasons. Perhaps getting portrait quality photos of two great grandparents to download from FB is not important to everyone, but it is invaluable to me. And I can share them with our children and grandchildren.
My love for maintaining connections seamlessly exists with my desire to produce useful and creative writing and to maintain my "professional presence" on the Internet. Everyone needs to make a living, and everyone needs to eat, and I am a natural show off.
A perfect justification of why I will unapologetically project myself, my practice, my ideas, and my experiences into the ether is the way we made our way to "The Dressing Room" restaurant for New Year's Eve.
I suggested to Nancy earlier in the week that we should consider taking her Mother, Marjorie, out to lunch on New Year's Eve. I doubted we would be up for a big night out. She warmed to the idea and discussed the idea with her Mother on the phone. They remembered some familiar names but were not sure which restaurants were open.
Nancy, laptop already open, did a quick Google search of the area, found ten, narrowed to two, then one, potential choices, compared prices, ratings, travel distances, and reservation availability, and made reservations onlinw for four at "The Dressing Room" in Westport. We travelled from Marjorie's home to The Dressing Room in 18 minutes, aided by our new Garmin GPS. There is even a dog park next to the parking lot, for Buddy and Duffy. That's how people select services and products in the Age of Google.
It does not make sense to make such a serious choice any other way. The Garmin got us there ten minutes early and prompted us for a rating as we pulled away. Because of Nancy's careful research, and great food and service and atmosphere, we happily gave it five stars.
On the way to Ct., we of course listened to our XM Satellite radio, with several terrific interviews, reviews of the year's movies, current news, and lively music when Burt began to tire.
On other trips, we listen to books on cd, or a Nascar race, or a football game, or music of our choice. Many people download podcasts. I cannot imagine going back to searching for stations and losing them just when things get interesting. There simply is no going back.
From now on, even hikers on the Appalachian trail, mountain climbers, and ocean going adventurers, will have their technical devices. Why go anywhere without, GPS, streaming video, or a weather report?
Professionally, I am planning for another busy and productive 10-15 years. But, I have seen older lawyers, slowly winding down, learning nothing new, and doing things the "old fashioned way", with a dwindling clientele who sense the lawyer has failed to maintain skills or learn "new tricks". That's not for me.
Although the people of North Central WV still often reflexively turn to the Yellow Pages and word of mouth, even people who use these methods are going to look up their potential lawyer online before hiring.
For my practice, I make sure that potential clients can find lots of valuable information, answers to their questions, informative videos, and personal information about me. Just as finding a good restaurant, hotel, or travel agency is enhanced by internet research, the task of choosing a lawyer is enhanced by using the Internet.
Having spent the last two years actively posting my views, photos, videos, and blog posts, I plan, in the first quarter of 2012, to publish my first book. Initially, it will be an Amazon Kindle e-book; around 200 pages.
I note that a colleague, a Facebook Friend, recently beat me to the punch with his own Kindle book. More power to him. Lawyers need to be more communicative and creative. It is inevitable that a person a chatty as I am, with strong views and things to say, will write about it. If you are afraid to be judged by others, how can you consider yourself a trial lawyer?
And, if your lawyer does not have strong opinions, is not on the Internet, is not learning how to do something differently every day, and is not "tech savvy", you may fairly ask, "Why not?" I cannot think of a good answer.
As we begin the year 2012, I have formed certain conclusions that I will share here:
1. We are now in a full blown, high speed, consumer society. Our financial structure depends upon businesses selling stuff. We are, and will be more in the future, assailed with constant messages designed to motivate us to spend money. Much of the time, the products are harmful. They use up valuable resources, pollute the environment, heat up our world, make us fat, endanger our health, addict us to dangerous substances, induce us to spend money we do not have by borrowing, to be jealous of our neighbors, to be shallow in our thinking, and to be impulsive in our buying habits. Learning how to cope with this pressure will be a key skill for families and their children.
2. Our children are being assailed as never before. Playschool sells war toys. Disney produces movies "for the whole family at Christmas" but cautions they may not be suitable for someone under 13 years.
3. Big Business perceives our children as a huge demographic, not a resource to be protected, but one to be used, abused, and depleted.
4. Decent folks are afraid of the avalanche of change, so they turn to old fashioned, simple, solutions. They turn from science and reason, partly because our educational system is so flawed that it does not produce well-rounded, morally fit, critical thinkers. In their fear and confusion, they turn to simplistic solutions, and to fundamental religious teachers to tell them what to believe, how to act, and who to mistrust and fear.
4. Different societies have different solutions. America and Europe, being products of The Age of Enlightenment and of revolution, purport to support religious freedom and faith in science, but radical, or fundamental, religion, seems to be increasing all over the world. To me, it is cancerous that groups of people have faith in messiahs and prophets who they believe make them superior to other "faiths". Such thought leads to be belief that they must proselytize or impose their beliefs on others. Right now, the worst seems to be radical Islam. But it is growing everywhere.
5. Something we seem to have welcomed with very little critical thought or insights by our news media is "The Arab Spring". As strong, often repressive, leaders are toppled, a "new democracy" is supposed to emerge. Where are the people with learning and perspective to help us understand what this movement is and what its potential for good, evil, and chaos is? And, why did the strong leaders gain power, perhaps to overcome the superstition and deleterious effects of societies bound by fundamental religious teachings. I just read that "The Moslem Brotherhood" in Egypt is forming ties with Hamas in Palestine. This cannot be good for Israel or America.
6. My friend David has guided me to a Jewish blogger, named Barry Rubin, who views changes like the Arab Spring with apprehension, if not dread. Perhaps by reading him, listening to thoughtful commentators like Fareed Zachariah, and reading topical books by knowledgeable people, we can sort it out. For now, I have great concern about whether new democracies created by desperate people who are driven by fundamentalist religious views can ever lead us to an age of enlightenment.
7. By the time this is posted, since I have no Internet Service here, we will have learned the results of the Iowa Caucus. We will probably learn that a somewhat reasonable fellow is headed towards being the Republican presidential candidate. This may be simply because there were so many conservatives to his right who split up the Christian Conservative and Tea Party voters that they aided his selection. The fundamentalists are very determined.
8. As for the Democrats, many liberals are disappointed in our President. As a moderate Republican who keeps threatening to register as an independent, I feel relief that President Obama has been exactly as promised, moderately liberal. I am surprised he has avoided major gaffs, and pleased he has been steady at the helm, happy he has killed a number of bad guy leaders, including Osama, relieved he did not pull out of either Iraq, or Afghanistan, precipitously, and am also relieved that his support of the revolution in Libya did not backfire, yet.
9. But, it is tragic that "First Term Obama" lacks imagination, guts, and creativity. He is presiding over the cowardly retreat of our country from its adventure in space and the incalculable benefits a strong space policy can provide. His efforts to placate the Palestinians and Mid-eastern countries is causing fear, anger, and mistrust with our strong ally Israel without any apparent progress or benefits in return for his efforts to be "in the middle". And, he is blocked by Republicans on tax reform. There is a disparity in incomes that is creating great resentment and anger. "The Land of Opportunity" is failing the middle class.
10. Without doubt, Barrack Obama lacked the credentials to be President when he was elected, but now he has the credentials. The question is, if elected President, can he somehow act decisively and imaginatively enough to make any real progress on our country's and world's major problems? I do not think so. Few people have a hint of how badly we are injured by the burst bubble of our financial system, and the pending shortfalls in Social Security, Medicare, and Medicaid. My tendency is to give him a chance because I am so disgusted with the alternative.
11. Currently, the balance of political power seems to mean that neither side can implement its espoused ideas. We lack the leadership we had with Washington, Jefferson, Adams, and others. Washington's leadership lead us to a balanced government that respected the rights of individuals. This is a miracle considering that Washington was a slaveholder who did not even free his own slaves in his lifetime, but the benefits of bill of rights has eventually been spread to most Americans. Without the strength and wisdom of Washington, our colonial America might have been just as fractious and partisan as we are now.
12. In this age of instant communication, it is probably going to be up to small groups of brilliant thinkers, and pockets of parents, teachers, institutions, and governments to try to hold together our fractured society. The wisdom of the ages is a fingertip away, but so is all the baloney and crappola our foolish cultures can generate.
13. Only our technological progress can prevent the chaos that many smart people predict. Increases in the speed that information is disseminated and processed, and breakthroughs in medicine, genetics, economics, transportation, and the sciences may save us. That is where I am placing my hope. And in persons of wisdom and good intentions.
14. With luck, China, Japan, and Russia will succeed brilliantly in their space programs. Only fear of their domination, jealousy, or our inherent competitiveness, will get us back in the game in time to get colonies on the Moon, Mars, in space stations, and elsewhere. Right now, ALL OUR EGGS ARE ON ONE BASKET.
15. We can pray that the essential resourcefulness of our people, who were once driven by a desire to explore, and succeed, will reappear in time.
16. Finally, back to my own little world, I intend to write, call, and visit, family, friends, and colleagues on a regular basis, to be the best lawyer I can be, to be the best husband, father, grandfather, and son in law I can be. I will continue to set out my views and invite others to contribute or criticize.
17. Since I love technology, new devices, new tools, and new ideas, as long as my mind is strong, I will exercise it. This is the last part of my first book. I hope it makes some sense.
Friday, December 16, 2011
Is Lying or Stealing Wrong?
Why ask such obvious questions? Because they are not so obvious, at least not in this society. And, from what I hear from France, Greece, Italy, and Russia, America may still have a better sense of the essential "rights and wrongs" than many societies.
I listened to a part of a segment on N.P.R. this week that got me thinking. Apparently, there are such things as "unlimited metro cards" issued to students, governmental employees, and perhaps welfare recipients?, who get to use the card for the N.Y.C. subway system. Somebody pays for these cards, and the users do not have to.
The ethical question was ,"Is it wrong to let someone swipe your card." I only heard 15 minutes, but apparently they spent at least 30 minutes with this dilemma. There were such questions as, "What if the person behind you asks you to swipe for them?" "If you lose your card, can you ask someone to swipe for you?" "Can you sell swipes to others?"
The learned host pointed out that allowing another to swipe isn't really taking anything. What!!?? Somebody pays for every seat on that train, every turnstile, and every security guard. The "unlimited card" no doubt is for one person, student, worker, or retiree and is based on a firm statistical estimate of how many swipes they need. How can giving or selling your swipe to someone else be any different than taking your buffet plate outside and handing to a homeless person?
Handing it to the homeless person is probably better than selling it to a crack dealer so he can stay on his corner, but I believe that STEALING IS STEALING. Allow someone to take a seat, and the taxpayers or paying customers are diminished.
This week, a fellow lawyer I like very much filed a motion to protect her client from answering an "overburdonsome request". Overburdensome is even worse than burdensome. She told the Court I had asked her client to describe every trip he had taken in his home county and out of the county for two years. I did? I did not remember asking that? Wonder why I wanted to know that? But, in my haste, I did not have the offending request at hand. I, of course, looked stupid, and she looked properly indignant.
But, here is "the rest of the story" as Paul Harvey used to say. When my loyal paralegal fished the offending question from of the file, turns out I actually asked for every trip the respondent took that caused him to leave his child overnight with someone else during his parenting time. She found this request very "confusing". Confusing in this context means, "I know damn well what he wants, but I am going to pretend I don't."
It was a very relevant question in light of allegations that he frequently dumps the child on his Mom, took lavish business trips to gambling venues, and had a girlfriend he liked to visit, even when he had the child. Hmm…….so he had so many of these trips that he simply could not remember, or did the lawyer play some games with the truth to make her point with the judge? You can decide.
Issues such as this are more ambiguous than before the "Coach Rod Era". We can be enraged at the coach for trying to avoid "liquidated damages", and then WVU can try to do exactly the same thing to The Big , and no WVU fan raises a fuss. Not quite so. I see on FB that some people agree with me. WVU needs to pay up.
Liquidated damages are simple. Break the contract, and you pay for damages that you do not have to prove. Coach Rod's was $4,000,000, and WVU's was $5,000,000. I see a good compromise. Let's assign coach Rod's obligation to the Big East!
Where do these rules of right and wrong come from? As I have written on other posts, some think they come down from "on high". Thus we have "The Ten Commandments".
Strangely, although we are assured that God hands out these rules to his special intermediaries on earth, "An Eye for An Eye" turns into "Turn the Other Cheek". I picked up my "can't helps" from my upbringing in the church, 4-H Clubs, Scouts, coaches, teachers, and my parents. The Rules of Professional Responsibility, and other guidelines are helpful, but very static and sometimes short-sighted. Our WV Supreme Court and State Ethics Counsel, in my humble opinion, apply different standards to solo and small firm lawyers than they do to the big firms.
Perhaps God can become more enlightened? Maybe he can even become tolerant of gays? And their marriages? God designs a world with gays in it, and orders them to obey the rules he handed out to straight people? Why didn't he hand out rules for gay people? Why did he not create only straight people? The Devil again? And why does an omnipotent, all-knowing God allow the Devil to hang around?
I remember a movie or book where there was a question to a young woman of how many men could a 30 year old woman sleep with before she is considered a slut. Her answer, "12"? Hmmm. Used to be three? I think. These rules shift as society evolves. How then can they be "natural law"?
Dear Abby had a letter today from a lady who had many nice friends. Then she dated a black man, and all her friends shunned her. Some friends!
Why did God forget to add the Commandment, "Thou Shall not shun your white friend for dating a black person?"
Paul Harris has a Kindle essay, "Lying". What a nice little article, and by an atheist! Shocking. He discusses the many things we do and say that are not true. In my family practice, parents and grandparents often tell the children bad things about the other parent and defend themselves with, "But it is true." Just because something is true does NOT mean it needs to be stoken, especialy to a child enduring the trauma of his parents' divorce. Behavior has improved with the count mandated classes for divorcing parents, but the lawyers, judges, and teachers of the classes have virtually no communication. I did not even know that a friend of mine teaches the course!
My favorite example of misguided candor (perhaps) is "Honest Abe" in the Geico commercial; a rare recently discovered movie of President and Mrs. Lincoln where she asks him if her dress makes her look fat. His answer? To hold his thumb and index fingers about an inch apart. Off she goes in a huff. The truth may not always be the best policy.It takes courage to be truthful and honest if those around you are not.
Some creatures, especially predators, survive by lying, to their partners and other species. Representatives of governments, universities, military units and churches, lie to protect the organization. Machiavelli wrote a classic work on such issues.
I say, tell the truth as best can and do not steal. (A mild variance is "only lie when you really have to save your ass.")
I listened to a part of a segment on N.P.R. this week that got me thinking. Apparently, there are such things as "unlimited metro cards" issued to students, governmental employees, and perhaps welfare recipients?, who get to use the card for the N.Y.C. subway system. Somebody pays for these cards, and the users do not have to.
The ethical question was ,"Is it wrong to let someone swipe your card." I only heard 15 minutes, but apparently they spent at least 30 minutes with this dilemma. There were such questions as, "What if the person behind you asks you to swipe for them?" "If you lose your card, can you ask someone to swipe for you?" "Can you sell swipes to others?"
The learned host pointed out that allowing another to swipe isn't really taking anything. What!!?? Somebody pays for every seat on that train, every turnstile, and every security guard. The "unlimited card" no doubt is for one person, student, worker, or retiree and is based on a firm statistical estimate of how many swipes they need. How can giving or selling your swipe to someone else be any different than taking your buffet plate outside and handing to a homeless person?
Handing it to the homeless person is probably better than selling it to a crack dealer so he can stay on his corner, but I believe that STEALING IS STEALING. Allow someone to take a seat, and the taxpayers or paying customers are diminished.
This week, a fellow lawyer I like very much filed a motion to protect her client from answering an "overburdonsome request". Overburdensome is even worse than burdensome. She told the Court I had asked her client to describe every trip he had taken in his home county and out of the county for two years. I did? I did not remember asking that? Wonder why I wanted to know that? But, in my haste, I did not have the offending request at hand. I, of course, looked stupid, and she looked properly indignant.
But, here is "the rest of the story" as Paul Harvey used to say. When my loyal paralegal fished the offending question from of the file, turns out I actually asked for every trip the respondent took that caused him to leave his child overnight with someone else during his parenting time. She found this request very "confusing". Confusing in this context means, "I know damn well what he wants, but I am going to pretend I don't."
It was a very relevant question in light of allegations that he frequently dumps the child on his Mom, took lavish business trips to gambling venues, and had a girlfriend he liked to visit, even when he had the child. Hmm…….so he had so many of these trips that he simply could not remember, or did the lawyer play some games with the truth to make her point with the judge? You can decide.
Issues such as this are more ambiguous than before the "Coach Rod Era". We can be enraged at the coach for trying to avoid "liquidated damages", and then WVU can try to do exactly the same thing to The Big , and no WVU fan raises a fuss. Not quite so. I see on FB that some people agree with me. WVU needs to pay up.
Liquidated damages are simple. Break the contract, and you pay for damages that you do not have to prove. Coach Rod's was $4,000,000, and WVU's was $5,000,000. I see a good compromise. Let's assign coach Rod's obligation to the Big East!
Where do these rules of right and wrong come from? As I have written on other posts, some think they come down from "on high". Thus we have "The Ten Commandments".
Strangely, although we are assured that God hands out these rules to his special intermediaries on earth, "An Eye for An Eye" turns into "Turn the Other Cheek". I picked up my "can't helps" from my upbringing in the church, 4-H Clubs, Scouts, coaches, teachers, and my parents. The Rules of Professional Responsibility, and other guidelines are helpful, but very static and sometimes short-sighted. Our WV Supreme Court and State Ethics Counsel, in my humble opinion, apply different standards to solo and small firm lawyers than they do to the big firms.
Perhaps God can become more enlightened? Maybe he can even become tolerant of gays? And their marriages? God designs a world with gays in it, and orders them to obey the rules he handed out to straight people? Why didn't he hand out rules for gay people? Why did he not create only straight people? The Devil again? And why does an omnipotent, all-knowing God allow the Devil to hang around?
I remember a movie or book where there was a question to a young woman of how many men could a 30 year old woman sleep with before she is considered a slut. Her answer, "12"? Hmmm. Used to be three? I think. These rules shift as society evolves. How then can they be "natural law"?
Dear Abby had a letter today from a lady who had many nice friends. Then she dated a black man, and all her friends shunned her. Some friends!
Why did God forget to add the Commandment, "Thou Shall not shun your white friend for dating a black person?"
Paul Harris has a Kindle essay, "Lying". What a nice little article, and by an atheist! Shocking. He discusses the many things we do and say that are not true. In my family practice, parents and grandparents often tell the children bad things about the other parent and defend themselves with, "But it is true." Just because something is true does NOT mean it needs to be stoken, especialy to a child enduring the trauma of his parents' divorce. Behavior has improved with the count mandated classes for divorcing parents, but the lawyers, judges, and teachers of the classes have virtually no communication. I did not even know that a friend of mine teaches the course!
My favorite example of misguided candor (perhaps) is "Honest Abe" in the Geico commercial; a rare recently discovered movie of President and Mrs. Lincoln where she asks him if her dress makes her look fat. His answer? To hold his thumb and index fingers about an inch apart. Off she goes in a huff. The truth may not always be the best policy.It takes courage to be truthful and honest if those around you are not.
Some creatures, especially predators, survive by lying, to their partners and other species. Representatives of governments, universities, military units and churches, lie to protect the organization. Machiavelli wrote a classic work on such issues.
I say, tell the truth as best can and do not steal. (A mild variance is "only lie when you really have to save your ass.")
Top Ten Errors By Personal Injury Claimants
I started earlier in the week posting to my FB professional page "J. Burton Hunter III and Assocs, PLLC" commons errors of the personal injury claimant. That's the week of Dec 12-14, 2011. As of this posting, they are on my Twitter feed to the right.
So, I posted to my professional page, and it shows on FB and Twitter and if I hashtag #fb to public Facebook and #in to my Linked in contacts; pretty neat! Hope someone out there takes heed and avoids all these errors. That one about not having a personal umbrella can cost you $1,000,000, your business, your financial security, your family, and your sanity. Good luck in avoiding them!
My next post; the not so simple question, "Is Stealing Wrong?"
So, I posted to my professional page, and it shows on FB and Twitter and if I hashtag #fb to public Facebook and #in to my Linked in contacts; pretty neat! Hope someone out there takes heed and avoids all these errors. That one about not having a personal umbrella can cost you $1,000,000, your business, your financial security, your family, and your sanity. Good luck in avoiding them!
My next post; the not so simple question, "Is Stealing Wrong?"
Friday, December 2, 2011
Personal Injury Client Misperceptions
From my hundreds of interviews with potential clients and clients, I find there are common misperceptions among the victims of serious injury. These misperceptions are sometimes simple ignorance of the law and sometimes created by the deceptive "facts" spread by the insurance industry, big business, and the news media. I am surprised how naïve the media sometimes can be. Just ask the McDonald's Coffee Lady. Sorry; you can't. She is dead.
Here are a few of those misperceptions and my attempts to correct them:
1. During the first interview, potential clients want me to know they are not like those greedy people they read about who are looking to get rich from their personal injury claim.
Once I explain to them the elements of a personal injury claim, they become comfortable with that, and I have never had a client complain that I got them too large a settlement or asked me to accept only $80,000 of a $100,000 settlement offer.
2. Clients are surprised that other guy's insurance company will not pay their bills unless they are ready to sign a full release.
Except for rare exceptions, perhaps for small sums designed to lull the claimant into not hiring a lawyer, the tortfeasor's carrier will demand that release, so in the meantime, the client must look out for himself or herself.
3. Clients are startled when I inform them their first step is to file a claim for medical bills against their own Med Pay insurance coverage, and if no coverage, or it runs out, their own medical insurance.
But that is exactly what Med Pay and medical insurance coverage is for, to pay the bills, regardless of fault, for them and their passengers while they are healing and waiting to settle. Since their own carrier was not at fault, the client's policy requires that they honor the Med Pay carrier's "subrogation claim" once a settlement is reached, but this routinely excludes the carrier's share of the attorney's fee that it took to collect the settlement. Subrogate means "substitute" or stand in the claimants' shoes.
4. Some clients are upset to receive "collection notices" from their medical creditors. We are trying to do a better job of making it clear that the client is always responsible for the client's bills.
If there are no insurance proceeds to pay a bill, the client's lawyer will send a "letter of protection" to the medical provider, promising to pay the bill when the settlement is achieved. In cases where there is not enough money to pay all the bills, we can ask for the court's guidance. But, the provider does not have to accept the "letter of protection" so the client must keep in touch with the providers, and even make payment on their account to protect their credit.
So far, for various reasons, I have avoided turning to the relatively new services of personal injury financing firms, but on rare occasions that may have to be considered. Recovering from a serious collision and injures is a difficult task.
5. Finally, we lawyers have to work hard to combat the stereotype that we are greedy guns for hire. The better personal injury lawyers of course care about making good money. Lawyers are drawn to personal injury practice because it can pay well, but the good ones still put client first, and work on the nuances like boosting the client's spirit, assuring them there is light at the tunnel, and helping them to gain a fresh start. Not all reach this goal, but many do, and you should take care in finding out who we are! Not all doctors are gentle and kind, and not all lawyers are avaricious. We are people, just like you.
I will cover other misconceptions in future posts. Never hesitate to write me with a question, at hunterjb@hunterlawfirm.net .
Here are a few of those misperceptions and my attempts to correct them:
1. During the first interview, potential clients want me to know they are not like those greedy people they read about who are looking to get rich from their personal injury claim.
Once I explain to them the elements of a personal injury claim, they become comfortable with that, and I have never had a client complain that I got them too large a settlement or asked me to accept only $80,000 of a $100,000 settlement offer.
2. Clients are surprised that other guy's insurance company will not pay their bills unless they are ready to sign a full release.
Except for rare exceptions, perhaps for small sums designed to lull the claimant into not hiring a lawyer, the tortfeasor's carrier will demand that release, so in the meantime, the client must look out for himself or herself.
3. Clients are startled when I inform them their first step is to file a claim for medical bills against their own Med Pay insurance coverage, and if no coverage, or it runs out, their own medical insurance.
But that is exactly what Med Pay and medical insurance coverage is for, to pay the bills, regardless of fault, for them and their passengers while they are healing and waiting to settle. Since their own carrier was not at fault, the client's policy requires that they honor the Med Pay carrier's "subrogation claim" once a settlement is reached, but this routinely excludes the carrier's share of the attorney's fee that it took to collect the settlement. Subrogate means "substitute" or stand in the claimants' shoes.
4. Some clients are upset to receive "collection notices" from their medical creditors. We are trying to do a better job of making it clear that the client is always responsible for the client's bills.
If there are no insurance proceeds to pay a bill, the client's lawyer will send a "letter of protection" to the medical provider, promising to pay the bill when the settlement is achieved. In cases where there is not enough money to pay all the bills, we can ask for the court's guidance. But, the provider does not have to accept the "letter of protection" so the client must keep in touch with the providers, and even make payment on their account to protect their credit.
So far, for various reasons, I have avoided turning to the relatively new services of personal injury financing firms, but on rare occasions that may have to be considered. Recovering from a serious collision and injures is a difficult task.
5. Finally, we lawyers have to work hard to combat the stereotype that we are greedy guns for hire. The better personal injury lawyers of course care about making good money. Lawyers are drawn to personal injury practice because it can pay well, but the good ones still put client first, and work on the nuances like boosting the client's spirit, assuring them there is light at the tunnel, and helping them to gain a fresh start. Not all reach this goal, but many do, and you should take care in finding out who we are! Not all doctors are gentle and kind, and not all lawyers are avaricious. We are people, just like you.
I will cover other misconceptions in future posts. Never hesitate to write me with a question, at hunterjb@hunterlawfirm.net .
Sunday, November 20, 2011
What Burt Has to Say to His (Divorce and Custody) Opponents
The WV Rules of Professional Responsibility for lawyers prohibit my communicating with a represented party. But, a lawyer must deal with unrepresented parties directly. Failure to do so in my opinion is malpractice. I am convinced that misconceptions about the divorce process and allocation of parental rights (formerly paternity actions)create a large percentage of the problems which interfere with the settlement of cases. I hope to use the form letter below with unrepresented parties and their counsel to improve our communication and enhance our changes for amicable settlements.
Dear Adversary:
I would like us to start off on the right foot, so here is what I would like you to consider:
1. If you do not have a lawyer, you should retain one, or at least consult one. You are in a legal world of rules, statutes, and WV Supreme Court opinions that you cannot possibly master, and you probably do not have the time even to try.
2. I have done over 3000 cases, and my obligation is to my client. But that does not mean I am your enemy or have a personal vendetta against you.
3. That said; this may surprise you. I am fundamentally fair, have decided long ago never intentionally to mislead my opponents, and will focus as hard I can on the best interests of any minor children.
4. That does not believe that I never bluff or hide our "true bottom line". There is a difference between serious negotiations, positions taken at trial, and dishonesty, and I believe I know the difference. A good lawyer can be tough, but also reasonable and honest, even "feisty but fair".
5. Children should never be used as weapons, involved in the fight, hear obscenity, view violence, be interrogated, be made partisans, or be exposed to immoderate alcohol use, drugs, or sexual activity. Parents should support the other's discipline, and require respect to the other parent.
6. The lawyers and judges who work in family law have worked with hundreds and thousands of cases. We are not in the emotional cauldron that you may be. Harsh words, infidelity, and heartache are things we deal with every day, and we may appear to have been somewhat hardened to them. Those of us who are good at what we do care about the parties and the children and want you to have good outcome.
7. I oppose strongly:
a. Emotional abuse and efforts to control my client with threats or manipulation;
b. Your exposing your child to a "significant other" early in the case. You will learn at the court ordered "parenting class" that this is a selfish act, confusing to the child, irresponsible, and often an act of revenge against your estranged spouse. And, it makes you look bad to the Court.
c. Dangerous or crazy activities like abuse of alcohol, use of illegal drugs, threats of violence, or actual violence. These are the things that cause you to lose parental rights, go to jail, OR DIE!
d. If you are doing this stuff, when you sober up, take a few quiet moments to consider, "Why am I doing this stuff? Where is it leading? What impact am I having on people I love, or used to love? How am I going to come out the other end a whole person?" It is VERY hard to bring yourself under control, but some people can do it, often with the help of qualified professionals, starting with your doctor, minister, family, and close friends.
e. Stubborn refusal to accept the reasonable rules that govern your case. They include:
1. Equitable Distribution. We are not a community property state. Your spouse does not automatically own everything you own. But it is strongly presumed that any property, including "my retirement" accumulated during your marriage is owned 50%-50%. So, if you want your wife to be a stay at home wife or mother, realize and appreciate that she will raise the children, maintain your house, share in sex, and to all those things that keep our society, like volunteering at school or church, helping take care of your ailing Mom, and being there when you need a boost. A stay at home spouse usually has only the retirement the working spouse has been able to accumulate.
2. Alimony. Please do not say. "I will quit my job before paying her or him alimony!" That will get you in trouble with the Court. It also tends to ignore all the good things mentioned in Para. e. 1 above. Instead, WHY NOT JUST READ THE ALIMONY STATUTE. The court must consider 20 factors before deciding whether to order alimony, how much and for how long. These factors include the parties' ages, work experience, employment status, length of marriage, health, intelligence, and event who was at fault in destroying the marriage. The court has to consider whether a party can complete some education or get some job training to become financially rehabilitated. It will also look at whether you or your spouse are receiving any income producing property, likelihood of future promotions, and where you will probably be in five or ten years. If you and your lawyer do the same thing, you can be much more realistic and less histrionic on this issue.
3. Discovery: Please simply accept that you must disclose to the other side your income, and, in divorces, your assets and debts. This disclosure includes assets purchased with only your pay check. And this disclosure includes property you consider to be separate, gifts from family, inheritance, and assets purchased at least partially with funds you had before you married. For people who have been married awhile or have significant income and properties, it takes a good lawyer and careful analysis to sort through issues of equitable distribution. If you don't have a lawyer, for gosh sakes read the Family Court Rules, the Discovery Rules, and even the Rules of Evidence. It is silly to think you can become a "self-help lawyer", but failing even to try to understand the basics is a prescription for disaster.
4. Custody. This word is supposed to be passé. Important revisions were made to the law several years ago. These revisions did not, as some people have heard, guarantee the father 50%-50% custody. Instead, the assumption for fit parents is a "shared parenting" plan, "time with the children" instead of "custody" and "visitation", co-equal decision making, and co-equal access to children's records. The apportionment of time is often determined by a look-back to what you and your spouse have done before the date of separation. If you worked 60 hours a week, and your spouse stayed at home and did not rely heavily on a third party care provider (baby sitter, day care, etc.), do not be surprised that you demand for 50% is not going to be granted.
5. Mediation. Would you rather have a major role in parenting, in how your property is to be divided, in which debts are paid by which party, and in whether you receive or pay alimony, or would you just like to pitch the judge in a one hour to eight hour trial and have him or her decide your fate, and your children's? I don't think so! I request that you and your lawyer do your homework, set aside emotion as best you can, study and learn the mediation process, truly put your children first, manage your own habits and behavior.
8. Finally, cases involving serious abuse are always problematical, but 80% of cases are susceptible to a negotiated settlement, usually with the help of the mediator. Try to be open to honest efforts to bridge the considerable distance between or stated positions. Cases are settled every day, to the benefit of the parties and their children.
Sincerely,
J. Burton Hunter III
Dear Adversary:
I would like us to start off on the right foot, so here is what I would like you to consider:
1. If you do not have a lawyer, you should retain one, or at least consult one. You are in a legal world of rules, statutes, and WV Supreme Court opinions that you cannot possibly master, and you probably do not have the time even to try.
2. I have done over 3000 cases, and my obligation is to my client. But that does not mean I am your enemy or have a personal vendetta against you.
3. That said; this may surprise you. I am fundamentally fair, have decided long ago never intentionally to mislead my opponents, and will focus as hard I can on the best interests of any minor children.
4. That does not believe that I never bluff or hide our "true bottom line". There is a difference between serious negotiations, positions taken at trial, and dishonesty, and I believe I know the difference. A good lawyer can be tough, but also reasonable and honest, even "feisty but fair".
5. Children should never be used as weapons, involved in the fight, hear obscenity, view violence, be interrogated, be made partisans, or be exposed to immoderate alcohol use, drugs, or sexual activity. Parents should support the other's discipline, and require respect to the other parent.
6. The lawyers and judges who work in family law have worked with hundreds and thousands of cases. We are not in the emotional cauldron that you may be. Harsh words, infidelity, and heartache are things we deal with every day, and we may appear to have been somewhat hardened to them. Those of us who are good at what we do care about the parties and the children and want you to have good outcome.
7. I oppose strongly:
a. Emotional abuse and efforts to control my client with threats or manipulation;
b. Your exposing your child to a "significant other" early in the case. You will learn at the court ordered "parenting class" that this is a selfish act, confusing to the child, irresponsible, and often an act of revenge against your estranged spouse. And, it makes you look bad to the Court.
c. Dangerous or crazy activities like abuse of alcohol, use of illegal drugs, threats of violence, or actual violence. These are the things that cause you to lose parental rights, go to jail, OR DIE!
d. If you are doing this stuff, when you sober up, take a few quiet moments to consider, "Why am I doing this stuff? Where is it leading? What impact am I having on people I love, or used to love? How am I going to come out the other end a whole person?" It is VERY hard to bring yourself under control, but some people can do it, often with the help of qualified professionals, starting with your doctor, minister, family, and close friends.
e. Stubborn refusal to accept the reasonable rules that govern your case. They include:
1. Equitable Distribution. We are not a community property state. Your spouse does not automatically own everything you own. But it is strongly presumed that any property, including "my retirement" accumulated during your marriage is owned 50%-50%. So, if you want your wife to be a stay at home wife or mother, realize and appreciate that she will raise the children, maintain your house, share in sex, and to all those things that keep our society, like volunteering at school or church, helping take care of your ailing Mom, and being there when you need a boost. A stay at home spouse usually has only the retirement the working spouse has been able to accumulate.
2. Alimony. Please do not say. "I will quit my job before paying her or him alimony!" That will get you in trouble with the Court. It also tends to ignore all the good things mentioned in Para. e. 1 above. Instead, WHY NOT JUST READ THE ALIMONY STATUTE. The court must consider 20 factors before deciding whether to order alimony, how much and for how long. These factors include the parties' ages, work experience, employment status, length of marriage, health, intelligence, and event who was at fault in destroying the marriage. The court has to consider whether a party can complete some education or get some job training to become financially rehabilitated. It will also look at whether you or your spouse are receiving any income producing property, likelihood of future promotions, and where you will probably be in five or ten years. If you and your lawyer do the same thing, you can be much more realistic and less histrionic on this issue.
3. Discovery: Please simply accept that you must disclose to the other side your income, and, in divorces, your assets and debts. This disclosure includes assets purchased with only your pay check. And this disclosure includes property you consider to be separate, gifts from family, inheritance, and assets purchased at least partially with funds you had before you married. For people who have been married awhile or have significant income and properties, it takes a good lawyer and careful analysis to sort through issues of equitable distribution. If you don't have a lawyer, for gosh sakes read the Family Court Rules, the Discovery Rules, and even the Rules of Evidence. It is silly to think you can become a "self-help lawyer", but failing even to try to understand the basics is a prescription for disaster.
4. Custody. This word is supposed to be passé. Important revisions were made to the law several years ago. These revisions did not, as some people have heard, guarantee the father 50%-50% custody. Instead, the assumption for fit parents is a "shared parenting" plan, "time with the children" instead of "custody" and "visitation", co-equal decision making, and co-equal access to children's records. The apportionment of time is often determined by a look-back to what you and your spouse have done before the date of separation. If you worked 60 hours a week, and your spouse stayed at home and did not rely heavily on a third party care provider (baby sitter, day care, etc.), do not be surprised that you demand for 50% is not going to be granted.
5. Mediation. Would you rather have a major role in parenting, in how your property is to be divided, in which debts are paid by which party, and in whether you receive or pay alimony, or would you just like to pitch the judge in a one hour to eight hour trial and have him or her decide your fate, and your children's? I don't think so! I request that you and your lawyer do your homework, set aside emotion as best you can, study and learn the mediation process, truly put your children first, manage your own habits and behavior.
8. Finally, cases involving serious abuse are always problematical, but 80% of cases are susceptible to a negotiated settlement, usually with the help of the mediator. Try to be open to honest efforts to bridge the considerable distance between or stated positions. Cases are settled every day, to the benefit of the parties and their children.
Sincerely,
J. Burton Hunter III
Friday, November 18, 2011
Burt's Lie Detector
Recently, I needed some letters of support from friends and colleagues, and I got them. It was an uplifting experience to receive such support, but a few of the letters contained a qualification or two that concerned me. Over the years I have heard the suggestion that I can be overzealous in representing my clients, and, "You always believe your client!" These crept into the letters of support, and were a wake-up call that some of my colleagues still do not understand me.
Allowing for the fact, as George W. Bush once famously said, or was it Bill Clinton? "When I was young and foolish I was young and foolish.", it has been decades since either of the criticisms above were valid for me. But some labels, once affixed, stick, and these are two that I have to bear.
I have no way to convey to someone who has not been there, what it is like to handle @ 3000 cases on one subject, or 50,000 + hours in one endeavor. Some people could do this and keep doing the same things over and over without learning new and better ways. That is not me.
Faced with a new challenge, I take it head on. If it's a new subject, I read a book or manual. If a new technology or method comes out, I am likely to try it. I consider it a special challenge to figure out how to do something in a different way from others.
It is not my lot in life to come up with a new cure for cancer, to discover calculus, become rich and famous, or found a new religious movement, but that does not mean I want only to take up space in my journey through life.
My job is to complete tasks and solve problems, my family's, my friends', my clients' and my own. Each on is a puzzle to be solved. In my professional life, I MUST gather accurate facts, so being a cheerleader for the client makes no sense. And, I must be an advocate for the best interests of their children and guide them away from hurtful behavior.
And, how do I convince other lawyers that I have an unusual ability to figure out who is telling the truth? They are smart people, and they think THEY have that special skill.
First, I suggest that after you read this, you go to my blog article, May 5, 2010, "Something Constructive; How to Organize the Facts in Your Case." Read it and watch the video. They describe my method, in every case, taken from the Casesoft suite of software products, to investigate and organize the facts of the case. I first help my client identify the documents, people and things that populate their particular case. I need to know each such person, address, phone, relationship to the parties, and what they know.
I need the photos, the Facebook postings, text messages, tax returns, deeds, titles, account balances, medical bills, medical records, and the other evidence that will be presented at trial (even though with this stuff, we usually avoid the need for a trial.)
I then need lists, LOTS of lists, of my clients concerns, of complaints against the other party, of facts in my client's favor, or problems they want to serve. FINALLY, after I make them collect these building blocks, we work on the structure itself. They can write or tell me a detailed chronology, and I can put our allegations into something called a pleading, a complaint, a petition or a motion. When the client cannot provide these things in sufficient numbers, or of sufficient quality, I already have part of my "lie detector" in operation.
I recall the very nasty fellow who claimed to have been the primary care provider of his children who prepared no meals for them, had no cancelled checks to Krogers, no box of recipes, not favorite meals he liked to prepare. His position, "We eat lots of fast food!". Some care provider! He and I parted ways not long after that, and Burt's lie detector worked perfectly.
I sometimes use imaginary lie detectors or drug tests to detect to get to the truth. I had a client charged with raping his 70 year old land-lady. Not a pretty picture, but neither was the case of my client charged with committing the same act with his 85 year old grandmother.
I explained to the first fellow that it would be good for me to be able to present to the prosecutor a clear lie detector result, but warned him that if were lying to me, he would fail the test. He was not a mental giant. He gave me a sly look and said, "I beat one in Clarksburg!" Nuff' said. I had the results of my test. We worked out a plea agreement.
That raises the interesting question of whether criminal defense lawyers even want the truth from their clients? When I finally realized the answer is often "no", I worked to stop doing criminal defense.
And, of course, when I ask my client if he/she is a drug user, and I see wide-eyed innocence in the denial, I simply say, "Great, please go down to the Day Report Center to get us a clean drug screen", or as the Judge says, "Go piddle". The look in the client's eye tells me what I need to know. And, for the ones who are confident they can pass, sometimes I just wanted to know for my own information, but other times, I go ahead and send them, and attach the clean report to the pleadings, or bring it with me to the first hearing as a trump card.
Truth tellers have an internal consistency. Because they are not making it up as they go along, their stories have a rhythm. People lie all the time, but most like to tie their tail to some core truths. Little qualifications or hesitancy's speak volumes to someone who has done 10,000 - 20,000 interviews.
Lawyers need to learn how to read my written replies to their letters of concern or complaint. I may say, "Mr. Jones adamantly denies using the F-word against and flipping the bird against Ms. Jones last week-end., but I have stressed to him the need for courtesy and respect. He has promised me there will be no such behavior in the future.
This paragraph can be interpreted, "I realize my client may have acted like an idiot, but he is not going to admit it. I raised a lot of Cain with him, made sure he understands that no court will consider this behavior consistent with the best interests of the children, and if proven, can cost him some of his parenting rights."
The receiving lawyer simply needs to consider the context of my writing and give me the benefit of not being as stupid as he or she assumes I am.
As for being overzealous, filing pleadings on time, following up discovery with reminders of overdue responses, refusing to accept an answer that no witnesses have been identified six months into the case, complaining if transfer times for the children or child support payments are late, may be zealous, but they are not overzealous.
Accepting client's e-mails at all hours and forwarding their concerns and responses are zealous, not overzealous.
Filing a pleading knowing it is false, piling on discovery just to wear the other party out, calling names such as liar or thief, giving false or incomplete offers of proof (proffers) to the court, and filing frivolous motions are overzealous.
Taking on the persona of your abusive client. That's overzealous. Walking around the other parties' residence without advance notice to her counsel, communicating directly with a represented party, or sending your client to the other party with a settlement proposal to get around the other counsel, NOW THAT'S OVERZEALOUS!
And all of these things have happened to me and my clients. I do not engage in such behavior. Never have, never will, period,
So, call me opinionated, occasionally tactless, bull-headed, and vain. I have been guilty of all of these. Do not call me a liar. Expect me to keep my word and require my clients to keep theirs. If my client repudiates an agreement made in good faith, without good reason, I will probably withdraw from representing them.
And, please use your own skills to gather accurate facts, probe your client's complaint, do not fire off unsupported accusations, and measure your words. Finally, I know the rules for professional behavior and follow them, and I have my own strict standards and follow them too. If you give me the benefit of the doubt, I shall accord the same to you.
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