A Small Town Lawyer's Perspective

What Can a Lawyer Learn On The Road?

2012-02-08T12:54:00.000-08:00

After all these years, I still feel I should apologize for going on vacation. I already had two "anxiety dreams". In one, I could not read my litigation outline as I began my trial, and in another I was teaching a seminar with another lawyer and could not make sense of my PowerPoint Presentation.

At this stage of our lives, 90% of our travel is to family, our four children down south, or parent and step-parent, and siblings, to the North. I manage 3 or 4 seminars a year, but only a couple of nights away for that, and a Mountaineer game or two. And, we take our dogs with us most of the time. We love those trips, and the visitors to our happy home.

So, what can be gained by taking several days just to lounge by the ocean? Truth be told, I cannot even justify only sitting and reading a good book. This trip is to proof and edit my 200 page blog as it becomes my first, and perhaps only, Kindle book. This will never make the best seller list, but it will summarize lessons I have learned over 39 years as a trial lawyer and, we hope, serve as a useful, even helpful, marketing tool.

This trip has had another fascinating component. We have been testing, and experimenting with, our connectivity and social media. And, we invited my best friend, who is also my "marketing and social media" consultant, Dick Billick, of "Dick's Consulting" to house-sit. He is managing the pets, Buddy, Duffy, and Chloe, and working with my staff. I am out of their hair, so they can tell Dick what is on their minds, and work with him as he helps us figure out how to maintain contact with hundreds of former clients, get some "five star reviews" on the Internet, and give me feed-back on our efforts to create a presence on the Internet.

Nancy and I have new matching IPhone 4s. We also have our Dell Laptops, and I have my first generation iPad. Why the redundancy? Well, as I have learned from sad experience, something will always fail. This time it was the iPad what was incompatible with the wi-fi at our first hotel. Next it was my iPhone dying because I plugged it into a dead outlet. With my laptop, I was able to spend a dozen hours writing while maintaining contact with Dick, my staff, and our family. I even e-mailed my staff to forward all e-mails to Nancy's phone. Time for a "car charger". It is always something.

As we travelled south, we shared photos and status updates with our Facebook Friends, Linked In connections, and Twitter Followers. I know, letting people know we are out of town can be risky. Everything is a balanced risk these days. Since we have a "junk yard dog", or three, guarding the house, and loyal staff "watching our back" at the office, we decided to take the risk.

We have received many good wishes from friends, answered several inquiries from clients and potential clients, and sent ourselves several memos for websites we learned of on National Public Radio. It is stunning what you can learn from Sirius/XM when you are tuned to the right station, authors, scientists, musicians, and in-depth politics, and even Martha Stewart, Bill O'Reilly, and and Rosie O'Donell.

And, now we have our newest challenge, GPS, global positioning satellite! Our old Garmin wants almost as much money to download new maps as it first cost, so we have been trying to learn how to use a new one. And, our iPhones have GPS. Perhaps there are more user friendly interfaces. I certainly hope so! But we have had much fun seeking out the nearest Starbucks, restaurants, and a "beer store".

Garmin Gal seems not to know which Starbucks have gone out of business, and which Myrtle Beach restaurants are closed for the season, so we ended up sitting in "Flo's Oyster Bar" parking lot looking for another restaurant. A wrong turn took us to "The Inlet Oyster House". Neither Garmin Gal or iPhone Siri found it on our search, but look it up and you will see the owner "gets it" when it comes to marketing his little restaurant. And, his marketing is truthful. His place has that "local flavor". He was nearly full at 7:00 p.m. on a Tuesday evening, and the clientele had the look of "real people", not just tourists. We heard some talk of a "show" but not much. But, if we relied on our technology, and had not taken a "wrong turn, we would never have known of the "The Inlet Oyster House".

As much as we gripe about the quirks of Garmin Gal and Siri, we already have become dependent on them. We made it to our deponent doctor's office within one minute of the projected time. We found the nearest McDonalds for a rest room and snack. We find rest stops and Hotels. Garmin Gal took us unerringly to the Hampton Inn we searched for and found at Murrell's Inlet, and we knew just how long it was going to take us to get there. We gave it, and the Inlet Oyster Bar, five star ratings. (Well, I will if I can ever remember my G Mail password-e-mail address combination!)

When I finish this post, I shall upload a photo from our trip, publish the article, "share" it with my Facebook Professional Page, and Tweet it to the world and my Linked In colleagues. I can do that with each post I write or revise. Then I can "check in" via Facebook, Four Square, or Yelp, and keep track of my friend, family and colleagues who are doing the same. Is some of it frivilous. Of course, but seeing our grandchildren, keeping track of our children, maintaining contacts with so many are worthwhile activities. I just miss the good friends who are not so connect. Seems as if we do not interact as much as before.

If tonight a potential client writes me a note from my website portal, www.hunterlawfirm.net , I can answer his/her question and refer her to my staff for a follow up phone call. We never have to look for a pay phone, and staff does not have to worry about reaching me on the cell phone. They can just text or e-mail me to call them. Still, twice staff did call with minor crises, which I grudgingly dealt with. Better the occasional interruption than getting fired, OR SUED.

Would I rather just sit and read a good book? If I said yes, I would be lying, and if Nancy said no, so would she. She finds the constant stimulation exhausting, and I find it endlessly fascinating. Yet, she is the best travelling companion a man could ask for. Fun, adventuresome and so comfortable to be with after 43 years together. If we had been dealt different cards (time AND money), I would gladly travel with her six months out of the year. As it is, we will take our moments when we can find them and use this amazing technology to live interesting and productive, and connected, lives.

That seems pretty good to me. I am happy with the cards I have been dealt.

Burt's Criticism of Religion and Religiosity

2012-02-06T07:41:00.000-08:00

The Moon Over Our Home

Our Friend the Mantis, With Duffy Looking On

Wonders of Nature

Burt's Criticism of Religion and Religiosity
by Burt Hunter on Thursday,
August 4, 2011 at 5:59pm

I have noted with interest the passionate Facebook postings over politics and religion, and the invocation of supernatural powers to help us avoid, or recover from, disaster. I have even implored the great Spaghetti Monster for intervention. I believe in the power of prayer, people rooting for one another, encouraging each other, and seeking power from "somewhere". I think we all benefit by knowing we are not alone in this journey called life.

However, I agree with Elizabeth Edwards that we are naive to seek assistance from an intervening sentient God to cure our cancer, or as I prayed last night, to help me find the missing Buddy the Dog.

This frees me from blaming God for trashing Japan or allowing little girls to be kidnapped, molested, and murdered. I found 3 things lately that helped affirm what I have figured out a long time ago:

1. This morning there was a "coffee break" on NPR, an interview of two Muslim women, one rather devout, and one quite modern, on the eve of Ramadan. The devout one was pleased they were showing live feeds from Mecca, where unbelievers are banned from the entire city. The modern woman pointed out that there is a large superhighway into Mecca, but just outside the city, there is an off-ramp that says "non-believers exit here." She said Islam as practiced in Saudi Arabia is an abomination of the teachings of Mohamed and the worst interpretation in the world, especially in its treatment of woman. She pointed out that the Saudi version of Islam allows the beating of a woman for driving or having a wisp of hair showing from under her head covering. Converts who backslide, of course, are to be killed. She said that the failure of Islam to modernize is one of the disgraces of civilization. I concur.

2. I downloaded to my Kindle the book "The Religious Virus" by Craig A. James, who quotes Epicurus:

Is God willing to prevent evil, but not able? Then he is not omnipotent.

Is he able, but not willing? Then he is malevolent.

Is he both able and willing? Then whence comes evil?

Is he neither able nor willing? Then why call him God?

I have heard the palaver trying to answer such questions, and it all comes down to "faith". Faith is belief without evidence. I am not immune to this,having promised "someone" that if a close relative recovered from illness, I would never quit the choir. The relative recovered (A miracle?), and I have stayed in the Choir for 17 years singing to what I believe is a rather cult-like view of Jesus as superhero.

I ask myself why, since Jesus' teachings are so profoundly right to me when it comes to behavior, do we have to objectify a "personal savior" who sits around worrying about me all the time? Why tell our children fables and silliness about Jesus' doing supernatural things, awakening the dead, changing water into wine, calming seas. and multiplying fish?

Why cannot we focus on his teachings and not his party tricks? This comes from a fellow who got his older cousin to admit to him, when he was five, that Santa was not real. (And she got in trouble for doing so!). The Sunday School Jesus is no more real than Santa, but his teachings are very real, better than Santa's actually.

3. The closest I came to answering the question, "Why do religious teachers and devotees claim to believe in the supernatural?" comes from introductory words to "The Life of Buddha and Its Lessons" by Henry Steel Olcutt, 1912, free on Kindle from Amazon.

He says:

"The thoughtful student, in scanning the religious history of the race, has one fact continually forced upon his notice, viz., that there is an invariable tendency to deify whomsoever shows himself superior to the weakness of our common humanity. Look where we will, we find the saint-like man exalted into a divine persona and worshiped for a god. Though perhaps misunderstood, reviled, and even persecuted while living, the apotheosis (deification) is almost sure to come after death, and the victim of yesterday's mob, raised to the state of an intercessor in heaven, is besought with prayer and tears, and placatory penances, to mediate with God for the pardon of human sin."

He calls this a "mean, vile, trait of human nature", and I agree with him. How can one NOT want to defeat or conquer a neighboring country or religion if it does not recognize your "special savior"?! It is much harder to justify killing someone because his views or preferences are different from mine (Oliver Wendell Holmes Jr.'s "can't helps") than if the views derive from divine or natural law. By deifying such people, we gain a certitude that justifies wars, crusades, and jihads. Think only of the fellow in Norway who killed 90 people,mostly children, because Europe allows too many Muslims into their countries. So, also, Hitler used his "religion" to justify the Holocaust.

In dealing with people in my practice for nearly 40 years, among those who cause the hair on the back of my head to prickle are the loudly self-professed Christians. And, one of the crookedest I have dealt with so far was the Egyptian Muslim man who sold me this property and his Va. lawyer. I had to deal with him through three intermediaries, and at every critical stage, he was praying to Mecca! When we met face to face and shook hands, the problems ended, so maybe I do him an injustice and should blame the intermediaries. I think he used the intermediaries to wear me out and gain an advantage. I am sure he deals with "unbelievers" differently than with believers.

So,in spite of the wonderful good that religion sometimes accomplishes, at its core, it wants to do the thinking for us. It wants to tell us what we must believe, and it wants to convert us and make us believe as it teaches.

In reading about Buddha, I learned he was a rich man who learned poverty, and became the most devout of the monks. They revered him and his teaching, but, after a few
generations, his devoted followers fell into the same trap as Islam and Christianity. In order to make their guy better than our guy, they invented a full panoply of supernatural miracles and accomplishments. Things he had never believed about himself.

I thank my friend Larry for turning me to a couple of books on secular Buddhism. I love the idea of a spiritual quest, but in the end, even secular Buddhism wants to set down the rules. I want to figure out the rules for myself. So, I will be in choir singing, if they still let me, and the tear will still come to the eye and the catch in the throat, but I won't be in Sunday school. Can you imagine my spouting that stuff there? I have been assured that would not be there case. But I will not go to Sunday School and attempt to "convert" my classmates to my way of thinking.

And, lest you want to call me an atheist, I have NO IDEA WHAT IS OUT THERE, one minute before the big bang, one mile OUTSIDE the universe. The Spaghetti Monster is as good a guess as anything. I tend to see a "Matrix"- like, god-like, Gamer with a sense of humor, programing our bizarre world. I have taken two college level courses on cd's on The Origins of Life, and Biology, the Science of Life, and this stuff is sooo complex, I can barely understand the questions,let alone the answers. And I will not accept the label "agnostic". I may change my mind about this stuff tomorrow.

But, I will tell you a secret; for the politicians who claim they do not believe in
evolution, there is NO such doubt among scientists. Evolution is established to a scientific certainty! So, are the politicians dumb, or cynical, or just pandering,? I suggest a combination, depending on the politician. I know Mitt Romney is backing out of the teachings of John Smith of where the Garden of Eden was. But, Michelle Bachman and Rick Perry may even believe this stuff, even to the point where they want Christians to have dominion over the world by holding all the key power positions. That is scary.

Why do I post these views here? Because shallow views on religion and radical views on politics, espoused on FB, tend to wear me out. So, I will set out my position once and shut up. If 2-3 of you read this, great! I am sorry to offend anyone.

But, to me, giving God credit for some one's being lucky enough to be saved in a plane crash, yet giving him a "free ride" for killing all the rest of the passengers, JUST MAKES NO SENSE. Why can't we realize that even the most brilliant person on earth isn't sure of these things? The atheists have their valid points, but their arrogance sort of ruins it. And, their efforts to stamp out every sign of our Judeo-Christian tradition and history makes them a hated group.

After all, even our founding fathers gave lip service to "The Almighty". I say, “live and let live”, but stop teaching the supernatural to our children. I am happy to admit I don't know the ultimate answers, but I work a lot harder to figure them out than you might think. I think everyone should be curious of why we are here and what we are about. My wife Nancy and I were listening to the ocean last night (Feb 5, 2012) as I edited this blog to become a Kindle Book. We heard the constant noise of the waves and watched its ebb and flow and it occurred to me, if we truly understood that one thing, we would have a clue to what it is all about.

YOUR FREE POWER OF ATTORNEY AND ANNUAL LEGAL CHECKUP

2012-01-30T13:12:00.000-08:00

(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

Wrap Up 2011 - Hello 2012; Some Personal Reflections; An Avalanche of Change

2012-01-03T14:38:00.000-08:00

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.

Is Lying or Stealing Wrong?

2011-12-16T15:22:00.000-08:00

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 or spare a feeling.")

Personal Injury Client Misperceptions

2011-12-02T13:59:00.000-08:00

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 .

What Burt Has to Say to His (Divorce and Custody) Opponents

2011-11-20T08:21:00.000-08:00

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

Burt's Lie Detector

2011-11-18T15:05:00.000-08:00

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.

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.

Living With Constant Change

2011-11-17T12:10:00.000-08:00

I read a book back in the '70's titled "Future Shock" by Alvin Toffler, a "futurist". His first chapter grabbed you. He explained that if you treated all time, from the Big Bang to the instant the reader turn the first page as one day, that the last 10,000 of "civilization" was a mere instant. Ages were minutes, eons mere hours.

As an avid science fiction reader, I knew all this, but he laid it out patiently. We were in the greatest age of change in history.

Recently, another book, "What Technology Wants" by Kevin Kelly hypothesized that technological change is inevitable, barring a cataclysmic disaster, but that is good because it is 60% beneficial and only 40% detrimental. That tends to be my experience, e.g.:

1. Cell phones cause accidents, reception is unreliable, and my Blackberry sure gets me in trouble if I use it in the restaurant will dining with my wife! But, the convenience and connectivity are so fabulous, and getting better, that it is impossible to go back to land phones and phone booths.

2. Facebook wastes time, leads to bloopers and to the wrong people getting your message, and is used for many unworthy purposes, but with nearly a billion members it has become the communal communications center for mankind.

3. Computers in all their forms consume and control us, and they are susceptible to security breaches, but they magnify our productivity and give instant access to the wisdom and knowledge of the world.

4. The Internet is used to powerful effect by pedophiles, Nazis and Jehadists, and cancer researchers, schools, governments, businesses, and charities.

But, once something really works, Facebook six months ago, my Blackberry Curve, my Subaru WRX and my first generation i Pad, would it not be nice for it to last 5-10 years? My parents and grandparents had the same basic phone for 50 years of so. the t.v. repairman in Buckhannon has a shop in the same place for 30 years or so (That space now sells medical supplies!), and my wife's family had the same care for 11 years.

Alas, that is no longer the world in which I live. This blog is perfect example All of a sudden, every time I visited it, I got a pop up telling me about the new dynamic interface. Just "click here" for a razzle-dazzle view that will finally make my blog go viral. I clicked, and have regretted it for a month. When I tried to view it, I was told I needed a newer browser. Just "click here" and I can download it. I clicked and tried to download, only to be told that I already have an even NEWER browser which blocks the one I was told I needed.

When I tried to view my own blog, I could not, and if I "proceeded unenhanced", I reached a screen that would not allow me to view, print, or play video from any of my old posts. Here I had this fabulous tool that was working well. It contained wisdom I charge real money to my clients for, and it was there for free on The Web. But I could not view it, share it, print or play it! Agh!!

In a mere 45 minutes today I was able to work my way through the Help menus and find a way to "revert to previous template" which restored the blog I had a month ago! What a relief, but we all know that soon Google will make me move into the future. By then I hope I have the right browser.

Without this crazy changing environment, I would not even have a blog. And, don't worry, I learned on public television's Nova that time is a mere illusion of our limited perspective and all event, from Big Bang to end of time already exist like a streaming video. Go figure.

Why the Republicans Need to Go to Mediators' School

2011-11-13T15:04:00.000-08:00

Recently I heard a comment from Republican House leader John Boehner. It was so outrageously stupid, it deserved more attention that it got. Any good mediator, or lawyer who mediates, would spot it in a second.

He stated, "The Republicans are willing to work with the Democrats on solutions for America, but on the issue of taxes (or anything else substantive) we will never compromise on matters of principle. We just need to find areas of common ground." (or words to this effect.)

It is scary to think that a man with his power has such a poor understanding of how to negotiate solutions.

Here is what I explain to every client before we go to a mediation. Each side has something he or she wants, and an idea of what he might give up in order to reach agreement. So, the old model for negotiating, which I read 20 years ago in a book called "Getting to Yes", was to have a first, second, and final negotiating position.

I had negotiated hundreds of compromise agreements but could not understand why I usually agreed to something different from (usually less) that what I was going after. Then I learned the answer. When each side stakes out its first, second, and final position, the results look like this:

1)>>>>2)>>>>3)>(No Mans' land )<(3<<<<(2<<<<(1 >>>

Usually there remains a gap because:

1. Neither party has yet listened to the arguments from the other side;

2. Neither party has fully appreciated the risk, cost, and delay associated with failing to reach agreement;

3. Neither party has yet been persuaded by a good mediator; and,

4. Neither party is yet ready to give up something that really hurts!

And until each party is ready to go into the uncharted territory where she/he had not planned to go, there will be no mediated compromise agreement.

Boehner, by announcing he will never compromise on "principle" is stubbornly refusing to do what a good lawyer expects his client to do, moving into the painful area that me must go in order to reach a compromise. That area, of course is where the "common ground" is located. So, Boehner's statement is meaningless.

His position, quite simply, is that while every other American, especially the middle class and poor, must sacrifice in a time of economic hardship, the wealthy will not give up even one percentage points in new or increased taxes.

When his opponents offer to raise the income levels where increases take place, or reduce the percentage of increase, Boehner says, no, no, no! He is a political hack, not a leader, and certainly not a person willing to enter the difficult territory of true compromise.

I sure would not want to go to a mediation with him on the other side.

Breaking Up With Your Personal Injury, Divorce, or Civil Lawsuit Lawyer

2011-10-07T14:54:00.000-07:00

I am NOT writing to encourage anyone to fire their lawyer and hire me. But, it happens to all lawyers. They fire clients and clients fire them. And there are those, "You can't fire me, I quit!" situations.

I have been let go by a client, we all have. I can say with good conscience, except for the client who simply runs out of money and asks that I no longer represent them, I "fire" the client, or get fired, only when the client has such serious behavior or attitude problems that they will not allow me to help them. I am sure they may see that differently, but after 5000 cases or so in a career, I can help nearly anyone if they will let me. Some will not.

But, let me give you two examples of people that simply had to fire their lawyer:

1. An acquaintance brought in a dear fellow, post retirement age, whose leg was crushed at work. There was fault on behalf of his employer and two other negligent defendants, and plenty of insurance. He could not reach his lawyer.

2. A woman called whose lawyer had charged a $2700 retainer and two years later had no custody or child support order! She could not reach her lawyer. (See any pattern here?)

The gentleman had been told by his lawyer a few weeks earlier that he was leaving the firm, and no one else in the firm would respond to his calls. There was clear fault and $80,000 in medical bills! So, I was happy to help him. When I got the file back, his former firm requested a "quantum meruit" fee; that is, the value of their services to date as a fee from the settlement.

I discovered that there were no medical records in the file! There were no medical bills in the file! There was ONE letter to an insurance adjustor in the file. The other lawyer had not identified two of the potential defendants. No settlement demand was in the file. In six months, after a frustrating failed mediation, we settled that case for a large sum of money. We paid the other firm the value of their services - NOTHING.

In the other case, the woman's lawyer called me back, told me she had heard "rumors" the woman had gone back to her husband and that the woman did not communicate well with her. But, SHE HAD NO EXPLANATION FOR FAILING TO FILE A MOTION TO WITHDRAW AND NO EXPLANATION FOR FAILING TO GET EVEN THE TEMPORARY HEARING SET.

She was embarrassed, and I was gentle with her, but I could not resist mentioning to her the rule I will discuss here.

You see, there is a rule that governs how a lawyer gets out of a case, and, until the judge signs an order permitting withdrawal, the lawyer is responsible for that case. So the lawyer in the second scenario was obligated to move the case along or move to withdraw. She did neither.

There are judges who will not let a lawyer out of the case. I consider that inconsiderate, especially when the lawyer has 39 experience and a reputation for fighting for his clients. When he asks to get out, he NEEDS to get out!(NOTE: to the judges who sneak a peak at this blog to see who p....s'd me off this week. IF I ASK TO GET OUT I NEED TO GET OUT!)
In the other case, the three lawyers in that firm were, quite simply, incompetent. I declined their offer that we associate and informed them that if they persisted in pursuing a quantum meruit claim, the client would complain to State Bar Disciplinary Counsel.

Please, do not tell anyone, but I tend to have a soft heart, and, especially for clients I really like, or who REALLY need me, I stay on after they have run short of funds.(Drives my billing clerk crazy!) I may not be able to do that in the future. Things are getting pretty tough in WV.

But, as a minimum, those clients must:

1. Pay me something each month, keep in touch with my wife Nancy, billing clerk and office manager.

2. Do what I ask of the regarding providing a history, helping gather evidence, etc.

3. Follow my advice!!

I do not quit if my client gets drunk, not the first time. I do not quit if my client does drugs, but they must get help, and they must be honest with me. Even a relapse will not get rid of me, until I decide that I cannot help this person. I once sat through a long settlement meeting with a drunken alcoholic and got him a fair parenting plan, even the Court thought so, but I quit when the client bad-mouthed me and my efforts in open court. My colleague responded indignantly, and defended me. Thanks Jeff.

When the case is over, the lawyer must return the client's file, if not the day he asks for it, soon. That's because the file is the client's. The lawyer may not charge for copying it. Our policy of scanning everything means we can give the client the paper file and a disk, and still have the file on record. We are a bit behind on returning files to the client who does not ask, but we are working on it.

My policy is that if it appears to be a simple communication problem, I tell the client what to say to her lawyer. If the lawyer still will not respond, or, after a serious chat, the client remains unhappy, and my conscience is clear.

Accepted wisdom is not to take a difficult client that another lawyer had trouble with. That can be "nuanced". A careful interview may identify the source of the client's frustration. A mail lawyer may have more influence and control over a headstrong male client that a 30 year old female, especially if the male client does not respect women.

A sensitive, compassionate, 30 year old lawyer may be a better match for a sensitive, shy client, than a gruff,older, male. On that issue, I CAN be gentle with the client who needs me to be gentle, and I can be blunt if that is what the client needs. Recently, I had a first, a client who says I should have been "more blunt" in explaining the risks of his settlement. Be careful what you ask for!

So, if you know someone who is fed up and ready to give up on the client, it might be as simple as coming to me and having me call the lawyer. You should not "change horse" casually, but when it has to be done……………….., it has to be done. And if the client has to go, HE HAS TO GO!

Divorce 101 Handout (October 5, 2011)

2011-10-05T13:25:00.000-07:00

Two clients called this week worried about their case management conferences, so here is an informal glossary which I now am handing to new family law clients. This will become a blog post on Oct. 5, 2011; www.burtonhunteresq.blogspot.com.

1. The beginning document is filed with the circuit clerk. It is called a Petition.

2. The Answer must be filed within 20 or 30 days of service (by sheriff or publication, or certified mail).

3. The person filing first is the Petitioner, and the person answering is the Respondent.

4. The respondent may file a Counter-petition with his/her own accusations, called allegations. It must be filed with the answer.

5. A "petition for a rule to show cause" is also called a contempt petition. It alleges violation(s) of a court order and must be approved first by the court with an "order filing and notice of hearing".

6. In divorces, several documents must be filed with the Petition:

a. An affidavit swearing to the truth of the accusations;

b. A proposed parenting plan if there are children;

c. A detailed financial affidavit of assets (their values) debts (their unpaid balances) and their income;

d. Most family courts expect a "one year and two year caretaking functions worksheet" setting out the litigant's estimation of percentages of time (totaling 100%) of the caretaking functions performed for the child; and,

e. An application for services from the WV Dept. of Health and Human Resources' Bureau of Child Support Enforcement (which handles child support and alimony payments.

7. For people who need help fast:

a. The party seeking relief can file a petition or motion for ex parte relief. If the attached affidavit is compelling, and the risk of irreparable harm apparent, the family court may grant some relief without a hearing. Examples are an order prohibiting taking the child out of state, restraining order, or even temporary custody. More often, the court will deny the immediate relief and set an emergency hearing; and,

b. A motion for expedited relief, where the party gets no immediate relief but asks for an early hearing, which most courts will provide.

8. Judge Sowa, Family Court Judge, of Upshur, Lewis, and Braxton Counties, complies with WV Supreme Court time-lines by issuing a Case Management Conference order. The Case Management Conference moves the case along via a short telephone interview of the parties or their counsel, or counsel's paralegal. The court wants to know the mandatory parenting classes have been scheduled and all required documents filed. Often the court will send the parties to mediation with the "CMC Order", set a status hearing date.

9. Other judges issue their own preliminary orders, for pre-mediation screening, the temporary hearing time and date, etc.

10. Mediation is covered extensively in my blog. It is a "non-adversarial form of "alternate dispute resolution". The mediator has received formal training, and must have extensive experience.

11. A temporary order is just what it implies. The Court issues an order on temporary custody, child support, alimony, possession of the family residence, possession of property such as a car, a constructive trust of the marital property, or a restraining order. It is very important and often is an harbinger of things to come.

12. A final order is also what the name implies. It is the final ruling of the trial court. It can also hold a party in contempt. It is appealable to the Circuit Court.

13. Sometimes a case is bifurcated. That is, the divorce might be granted or property awarded, but the custody case might be handled separately and sent to mediation or contested trial. There is no jury. The family court judge is judge and jury (fact-finder).

13. A property settlement agreement divides and assigns marital debt and property. WV, being "an equitable distribution state", assumes 50%/50% ownership of the marital assets and debts.

14. An agreed parenting plan, or a court ordered parenting plan, followed by an order incorporating that plan into the court's final decision covers:

a. Parenting time, overnight, day time, holidays, and vacations time;

b. Decision making; major non-emergency decisions, emergency decisions, and day to day decisions. Most fit parents have co-equal decision making;

c. Access to records, medical, dental, school, and juvenile;

d. Alternate dispute resolution, usually mediation; and,

e. Many other things are in a Permanent Parenting Plan Agreement, such as relocation of a parent, child support, medical insurance and support, alternate care providers, limitations on a parent because of drug or alcohol abuse, physical abuse, dangerous companions, mutual respect, no criticism of the other parent, smoking, custody exchange points and rules, and anything else pertaining to the welfare of the children.

15. Rules. You case is governed my many rules:

a. Family Court Rules;

b. Rules of Civil Procedure, especially "discovery rules";

c. Rules of Evidence;

d. Appellate Rules;

e. But not the Marquess of Queensberry rules;

f. And, as the drunken brawler told Paul Newman in the classic movie, "There ain't no rules in a knife fight!" We all know what Paul did next. So, be careful out there.

I trust my clients who get this hand-out will be relieved that their lawyer and his staff are going to lead them through this maze! If you have a family law dispute and do not have a lawyer, beware! Sometimes the other side does not play by the rules!

Lawyers and Language

2011-10-02T10:42:00.000-07:00

Precision in language, spelling, grammar, and punctuation can make the difference ,between being a good lawyer or a mediocre one, or, a being a good one or an excellent one. I stopped by my office after church this morning and was slapped in the face with an example. In my haste to get a letter out the door to opposing counsel, memorializing our clients' agreement, and the proposed letter to their child's counselor, I made no fewer than four "boo boos"!

1. I used Dragon Naturally Speaking and failed to correct spelling of the other lawyer's first name. She was not pleased.

2. I didn't proof Dragon's first effort because I was rushed for time.

3. I later proofed it hurriedly, missing her name, but also leaving in language that I sensed was a bit too strong.

4. I allowed my staff to affix a stamp of my signature because I was not coming back to the office. In my defense, I work intensely, fast, and usually efficiently. I really do! And, usually my assistant will catch that misspelling. In this case, I spoke with the client, told her the wording was fairly strong, including her criticism of the child's father's behavior, and asked her to read it carefully to make sure it said what she wanted me to convey. She ok'd it, and it remains to be seen whether the other lawyer, who does not know me well, will realize the benefit of understanding the other party's perceptions of her client. From the tone of her lecturing letter, I do not think so.

Since this lawyer comes from a very good, well run, firm, I think we shall bridge the 30 year gap in our experience for the good of our clients. For now, she has made some assumptions about me that are not correct, but it is partly my fault because of 1-4 above.

I experienced another example of the importance of language when I argued a case before the WV Supreme Court of appeals. My client graciously agreed to allow me to use her case as an example, it being another one of those horror stories I have been writing about of things that can go wrong if you do not hire a lawyer.

I saw surprise on the faces of the justices when I said that it was both a blessing and a curse that I studied English for five years, 8-12, at Linsly Military Institute in Wheeling. I wish I could go back and explain myself. The "curse" was not that our teachers, Capt. Clutter, Capt. Judy, and the rest were very tough, as they certainly were. One exam required us to list every form of a particular verb! The curse is I know the rules (99th percentile on my SAT's), and listening and reading the English language now, especially the television and radio version, but also what I hear every day as at work is excruciating. And, when I correct my staff or family member, it is VERY irritating to them.

I did not know until my 50's that "further" means degree and "farther" means distance. My wife, who is a superb speller and grammarian, explained it to me.

When I learned that my 90 year old mother-in-law did not know the rule either (and she is a GREAT conversationalist!) , and I politely corrected her, my wife was horrified. Quite properly, she inquired what difference will it make in the greater scheme of things if her Mother knows this rule? I am not sure I can articulate it, but I want to be "healthy", and I want my food to be "healthful". I want "normality", not "normalcy. And, I want it to be "their" gift not "there" gift. "Too" means also, and "to" is a preposition!

Now back to my argument before the Court. Any lawyer who has not been there should go. You have this well prepared outline. You MUST have it, just in case all the justices have laryngitis. But, you are never going to get to use it. One of the justices, sometimes two, will be primed with a question before you get to your second full sentence. So, that first sentence must say something about the case and give some hint about why the issues have a larger impact .

My interrogator was perfectly polite but persistent in asserting the issue is narrower that I think it is. It involves the enforcement and interpretation of a pre-nuptial agreement between two parties who had BOTH failed to consult a lawyer! My loyal paralegal was watching the life feed on the office computer, telling me what I should say in answer to the justice's assertions.

I finished my first turn without saying it. But, during my rebuttal, in frustration, I blurted out my comment about Linsly. The justice said the whole case hinges on the meaning of the term "another relationship".

You see, when the "pre-nupt" was thrust upon my client a few days before the wedding, she insisted on one important provision. If she was going to waive every monetary benefit for a period of 20 years, she wanted to know that if the marriage failed during the first 10 years, she would have free housing for her and her then 8 year old daughter.

Sure enough, just two years later the husband determined he no longer wanted to be married. And, the wife, after their separation had a very brief sexual "relationship" with someone she met over the Internet, and, the Court decided, over her denials, that there was another "one night stand".

But, she lost that benefit if she sooner found "another relationship". There was solid testimony from both parties that husband assured her she did not have to remain celibate, but the term was not defined in the agreement. Having deflected my arguments based on equity, basic fairness, equal protection under the law, and "rules of construction", the justice, for the third time said, "Mr. Hunter, the bottom line is this Court is going to have to decide what 'another relationship' means." My paralegal shouted, "Yes!" when I finally said, "Judge I KNOW what it means. It is a plain as day, but so far two other judges, family court, and circuit court, have failed to see it. You see, what I learned at Linsly is if they were talking about 'another relationship', you HAVE to look at whether there is an existing relationship!"

There was one that they were comparing "another relationship" to, during over 17 hours of arguing over a two day period. It was their relationship, one in which they had lived together for 26 months, were engaged to be married in 11 days, and where the man had a six figure income and she had hardly any.

The husband admitted assuring her that she did not have to remain celibate and that she kept stressing the need to have financial support and housing in any future relationship before she would lose the "free housing" benefit of the pre-nupt. Nevertheless, the family court said "another relationship" meant "any sexual relationship" and denied her a benefit worth $100,000 even though fault was determined to have been the Husband's.

I simply said to the Supreme Court that if the family court or the circuit court had applied the plain, simple, grammatical meaning to "another relationship", my client would not have had the agony, delay, and expense of this appeal. I do not know if the WV Supreme Court will agree with me, but of course I think they should.

I commend to you three books. The first is really three books bound in one volume, Edwin Newman's, "On Language", "Strictly Speaking", and "A Civil Tongue", originally published in 1974-76, by Galahad Books. Another is "You Are What You Speak; Grammar Grouches, Language Laws, and the Politics of Identify", by Robert Lane Greene. I stopped reading it after Chapter 1, out of frustration. I did not like it, and I will not like the next chapter, "A Brief History of Sticklers", but eventually I will read it. In that Chapter, he excoriates a little book I liked very much, "Eats, Shoots, and Leaves", by Lynne Truss. The premise of course is that by "sprinkling commas", an anonymous writer created a picture of a Panda, entering a bar, having a sandwich, shooting a patron, and leaving. No doubt, the author thought she was saying something much different.

You see, I think putting a closing comma on a parenthetical phrase is important to the meaning of the sentence, and that a comma should separate that last item in a string, and that sprinkling commas reveals your ignorance. It may not be that important to what you do for a living, but it probably is. And, it is important that you know the rules so that when your children come home from school, where they are no longer clearly taught them, you can help them become civilized. But, in a profession where words are out tools, and our written and oral statements are our weapons, you should insist on having a literate, well read, clear thinking, experienced lawyer. I even know one who is willing to help, for a fair price.

Obesity And The Law, And How Not to Be Fat

2011-09-18T16:09:00.000-07:00

I attempted a blog post on this subject and failed miserably. It is a sensitive subject and I have no desire to make anyone feel bad.

In America, Race, Gender Preferences, Religion, and Obesity are confounding subjects. They provoke powerful emotions, generate hateful prejudices, and have maddeningly elusive solutions. I posted my views on organized religion in a note on my personal Facebook, since I believe such views are essentially personal, but obesity impacts legal issues from every angle.

West Virginia, in spite of our rugged hills, pioneer heritage, and avid devotion to sports, lead the nation in obesity, with all the resultant problems that fact implies.

In divorce, obesity effects intimacy, the health of the parents, self-image and health of the children, and in employment and insurance.

In personal injury, juries are very "judgmental" of obese claimants. Fat people usually have more serious pre-existing conditions. They are more susceptible to injury, and a fit person is much more likely to come out of car or other accident unscathed than his overweight counterpart.

I can turn a pre-existing injury into an advantage in a personal injury claim. I have explained that in other blog posts. A person with a bad back or knee, quite simply, is more susceptible to injury than one who does not have a weak back or knee, but making that argument is hard for a fat person, even when over half of the jury is probably significantly overweight.

I tend not to gain a lot of weight. That is a blessing. I was around 150 lb. in college and have made it as high as 180. But, that extra 15-20 lb. (I sit here today almost exactly between those two numbers), is what keeps the blood levels out of whack, appearance less than optimal, and fitness far from ideal.

When I encounter a problem; how to race a car, maintain a pond, play an instrument, run an office, or lose some weight, I tend to read a book on the subject. (Am still looking for that book to tell me how to maintain our one acre farm pond!)

That's why I have read 15-20 books over the years on nutrition, weight-loss, and fitness.

Here is a summary of what I know:

1. Fast reps and vigorous activity to increase endurance and cardio-vascular health;

2. Slow reps and heavier weights to increase bulk and strength. (But, there are many gradations between these concepts.

3. People who cuts way back on calories loss weight.

4. Hardly anyone can cut way back on calories for very long, especially if their diets is low fat (Dean Ornish, Weightwatchers, Jenny Craig, etc.).

5. My favorite is the Mediterranean diet; lean meat, plenty of veggies, olive oil, some butter, whole wheat bread, seafood, beans, etc.

6. Some people cannot lose weight on this diet, so they are told to starve themselves.

7. Some people cannot gain weight and even have digestive or colon issues that make it very difficult to maintain proper body weight.

8. They have tested some very unhappy laboratory rats on starvation diets, and some human beings even ascribe to these diets, and they may live an extra 10% to 20% (Those who do not put a bullet through their heads; the people not the rats, who must simply endure.)

9. The book I read recently, "Why We Get Fat; And What to Do About It" by Gary Taubes, and "The Atkins Diet Revolution" and many magazine and Internet news articles, make one compelling point, over, and over, in many inexorable compelling and logical ways.

10. That point is that for 99.9999% of mankind's (humankind's) existence, there was NO OBESITY PROBLEM. People did not get fat and could not get fat.

11. Apparently, we were always omnivorous, but we ate few grains, no potatoes, and everything else "rough". We ate the entire animal, insect protein, the fish we could catch, and anything that moved, wriggled, or grew naturally.

12. Some diets now promote this "paleo" diet. (I have since downloaded "The Paleo Diet" to kindle. I have no quarrel with it but believe their are some less drastic, more scientifically based, alternatives.

14. Since the Chinese, Koreans, Japanese, and other cultures, at least until they began to take on our eating habits, have not had serious obesity problems, the paleo diet is not the only way we can survive today.

15. Scientific studies and testing agrees that Americans are fat because of SUGAR, aka, carbohydrates, aka, "carbs".

16. Carbs are table sugar, high fructose sugar, honey, cornstarch, but also, wheat, rice, potatoes, and therefore noodles, pasta. Carbs are also sweet corn, cookies, cake, bagels, sweetened yogurt, bread, Ding Dongs, Twinkies, ice cream cones, crackers, and even beans, yellow veggies, and nuts.

17. "Net carbs" are good? That's because they are mixed with something called "fiber". It is GOOD that we have to work hard to sort out the fiber from the sugar. If must take our bodies a lot of effort. I am shocked to know my Atkins breakfast bars have actual sugar. Why not NutraSweet??!! They taste like chocolaty sweet crap, but one each morning is only 2-4 "net carbs".

18. Some time between when I was a kid and now, "they" invented the food pyramid. "They" knew that carbs are the very cheapest food, that we love the taste (think potato chips, fries, and all the stuff in Para. 16 above.), and "they" knew that food with fat in it just had to be bad for you.

19. "They" just knew that exercise will help you lose weight. Only trouble is, IT WON'T!!!"

20. Exercise and good nutrition are good for you, but exercise is much better for keeping your bones healthy, muscles tones and strong, heart and circulatory system healthy than for losing weight.

21. "They" forgot that working out makes you "hungry as hell".

22. They decided to say things like "a potato is full of nutrients, especially if eaten with not butter or salt". Who the hell would eat a potato without butter, margarine, or gravy?? Or sour cream, or honey……… or?

23. Potatoes turn into pure sugar!! And, we all put lots of good stuff on our potatoes.

24. If you read "Food Nation" or some other books on the subject, you will learn we eat many magnitudes of sugar than the people in colonial times.

25. More surprising is that a diet few, if any, carbs and plenty of proteins and fats, which hardly any of use care to eat, it quite healthful.

26. Once we remove the carbs, the body HAS TO burn off our stored fat.

27. This is the induction phase of Adkins.

28. This part of Adkins was so controversial, that "The New Adkins Diet Revolution" stressed "the induction" phase as a temporary, 60-90 day stage.

29. Gary Taubes has the nerve to say it is a perfectly healthful (NOT HEALTHY!! We are healthy; food is, or is not, healthful.) nutritional regimen.

30. So, this is what I concluded.

a. If you eat anything you want, test your blood and find it is optimum, then eat anything.

b. If you like starving yourself, or eating incredibly low fat, and that keeps you at your ideal weight, feel free to do that, but don't keep firearms at your house.

c. If, a for most people, you can eat a reasonable amount of meat, fresh fruit (not juice), veggies, beans, whole wheat, nuts, cheese, and great stuff, AND CAN AFFORD THE GREATER COST, then that's the route to follow.

d. But, if you just cannot lose any other way, consider the concept of proteins and fats and little, if any, carbs, and ignore the "tsk-tsk" of the "we hate fat and love carbs" people. Just be sure to have the right doctor and to monitor your health and blood levels.

e. Whether it helps you lose weight or not!>>>>>>>>>>>>>>>>>>>>.

1. Exercise your body; and,

2. Exercise your mind, read, think, write, talk, even argue; do cross-word puzzles, and drag yourself away from the t.v.

At least, that's the way I see it.

The Mystery of Equitable Estoppel

2011-09-18T14:42:00.000-07:00

I love the doctrine of promissory or equitable estoppel. It has allowed me to win several appeals to the WV Supreme Court of Appeal and to save clients hundreds of thousands of dollars over the years. The trial judges I have appeared before have had great difficulty understanding the concept, which is based on fairness and a second chances.

Judges prefer to apply rules, not to find exceptions to those rules. Perhaps that is why I have been to the WV Supreme Court as often as I have. Once a Supreme Court justice told me that my case had helped him to understand promissory estoppel.

Here is the history lesson. In some cultures if you even accidently killed a member of another person's family, they got to kill one of yours. If you were telling the truth, you would float in a pool of water, and if lying, would sink.

As we came out of the "dark ages", the law evolved. But, the laws were arcane, strict, and often unfair to particular cases. So, the King (I assume the English King; this lesson has no footnotes!) would hold sessions where his subjects could come to his "court" and plead special exceptions to the harsh laws.

The king alone determined whether the application of "the law" was unfair. If so, he attempted to apply "equity".

So, there developed courts of law (the black letter, strict, rules), and equity, where exceptions were developed.

The two courts, law and equity, or chancery, were merged in WV many years ago, but the two separate outlooks prevailed. I could not find the citation to the classic example I found in law school, but here it is anyway.

A husband and wife sit on their porch, chuckling to one another and sipping tea, as their neighbor works away building a garage ON THEIR LAND.

As the neighbor prepares to drive his car into the garage, they stroll down, stop him, and inform him he has just built his garage on their property! Of course, equity requires that the neighbor had a good faith belief that he owned the property where he built the garage, "color of title".

I like equitable or promissory estoppel because someone really screwed up, but is given a second chance because the person who would otherwise get the benefit of the mistake does not deserve. He knew his neighbor was in the wrong but let him act "to his detriment" anyway.

In the instance above, the garage builder, knowing his neighbors are watching, reasonably relied on their forbearance in sitting quietly and not objecting.

Here are three examples of equitable estoppel from the real world.

I know because they involved my clients and me:

a. A couple selling their house could not deprive the realtor of a fee even though the written listing agreement (required in WV) had expired, because they chose to let him show the house and sold that house to the buyer he found for them.

b. An insurance company could not hide behind the two year statute of limitations because it approved an extension of three weeks requested by the plaintiffs' lawyer, even though the lawyer had lost track of the statute of limitations deadline! And,

c. A mother could not sign a written agreement for the husband to take responsibility of one of the children, waive child support, and sue for full support later; to do so would severely prejudice the father who had foregone child support from the Mother AND believed he would get credit for raising the daughter. Therefore, her claim for $70,000 of overdue child support failed in spite of strong "rules" to the contrary.

So, here are the elements of estoppel;

a. A person changes her position to her detriment.

b. What she does is violative of someone else's right (i.e. the barn on wrong property, not having a writing listing the property for sale, or not getting court approval for the change in custody. ); and

c. The other person does not act to stop the person, or lures the mistaken person into believing his rights are being protected.

When these factors exist, the person trying to take advantage of the other person's mistake, is barred or "estopped" from asserting his claim or his defense.

PLEASE, do not expect the average lawyer to understand promissory or equitable estoppel. You see, I was the fellow who relied on the insurance adjustors assurances and missed a statute of limitation, and the lawyer whose client failed to get the sellers to sign a new listing agreement, and of the man who failed to get a court order approving the change of custody. It is experiences like that, and arguing estoppel dozens of times to trial and appellate courts, that allows the dotrine of estoppel to sink it.

THEREFORE, even if you screw up, TALK TO A LAWYER. Maybe your mistake is one the law will overlook!

No Lawyer? Or Just Any Lawyer?

2011-09-13T16:38:00.000-07:00

Grey Hair is Sometimes a Good Thing

Recent events have taught me again that going to court without a lawyer is foolhardy. I was reminded recently that going to court with the wrong lawyer can also have devastating results.

A. NOT HAVING A LAWYER AT ALL:

1. Woman driver is followed down a long, winding WV rural road by "good ole' boys in a truck on her back bumper.

2. She search's for her turn, finds it, puts on turn signal and realizes the guy behind cannot stop.

3. Woman swerves to the right, as, to her surprise, does the pick-up truck behind the dump truck, which strikes her in her side, forcing her over an embankment.

4. She gets herniated disk and $70,000 in medical bills! This is called a "permanent injury"; serious stuff.

5. The dump truck driver, his passenger, and the pick-up driver all agree that "the woman driver" slowed abruptly and caused the collision. Of course that is not true. The collision occurred because two cars were tailgating! But it takes some "lawyering" to establish that.

6. The woman, believing propaganda about not getting a lawyer because they file "frivolous lawsuits", delays hiring a lawyer. She comes perilously close to missing the two year statute of limitations, is forced to file the suit she wished to avoid, and she and her lawyer now must try to track down the tailgating truck driver because he had no impact and was not cited.

7. She was a day away of losing a $250,000 claim. In retrospect, it is a no brainer that she should have had counsel just a few days after the collision. Only then can the lawyer collect the evidence, identify parties, and begin to build the claim professionally. Now, the contingent percentage will be higher, documentation will have to be compiled for the last two years, and the job will, simply, be harder.

B. SECOND: NOT HAVING A LAWYER; THEN, HAVING THE WRONG LAWYER:

1. Former wife signs agreement and transfers custody of child to her former husband. She keeps their little boy. He accepts their girl.

2. Each make about the same money over eight years and each provides support, housing, etc. for the child in her and his respective custody. If Court calculated child support, NEITHER PARTY WOULD OWE THE OTHER CHILD SUPPORT.

3. Father, with no lawyer, fails to get court approval of the agreement.

4. Mother then sues father for $75,000 unpaid child support, relying on a clear court order that he was to pay it!

5. Father hires a young attorney from a good firm who urges him to cough up $40,000, in compromise or risk the $75,000 judgment. Father almost mortgages his house, just to get it over!

6. Instead, Father retains an experienced lawyer who understands "equitable estoppel" (see next post).

7. Mother ends up waiving the entire claim and giving up custody of the younger child too.

8. At first, the husband needed an attorney to tell him to get the custody transfer approved by the court. Otherwise, unless there is a good reason otherwise, a monthly child support order is treated as a "decretal judgment" each month a payments come do. The first lawyer couldn't identify the "good reason", but the second lawyer, having taken similar issues to the WV Supreme Court of appeals could. The difference is something called "experience".

C: THIRD: HAVING AN INEXPERIENCED LAWYER:

1. In custody negotiations, the Mother is pressured to give the pushy, controlling, Father to share with him much more time with children than WV law would give him.

2. She refuses.
2. But, Mother has young, inexperienced, counsel.

3. Mother's lawyer fails to explain to Mother that under WV law the husband would get, if there is a contested trial, approximately the same percentage as the "caretaking functions" he performed during two years before separation. He did at best 20%. Normally, such a father would be awarded every other week-end, one evening after school, a few weeks in summer, and shared holidays.

3. Husband offers, if she will agree that he can have children 40% of the time, instead of the 20% the law would give him, and to pay her child support as if she had the 80%. In WV law, that is called "basic" shares formula. That gave Mother is approximately $250 more per month above the "extended shares formula."

4. Mother, who does not know about the "caretaking functions" law, partially because she needs money, agrees, and the Court approves their parenting plan including the extra child support.
5. Less than a year later, Father, who makes $21/hr. gets a $9.00/hr. raise, up to $30/hr.

But………………….you won't believe it! He files for REDUCTION OF child support and is granted a $150/mo. reduction! She and her young lawyer is dumbfounded but puts off the appeal too long and misses the thirty day deadline.

6. Mother finally goes to experienced lawyer and learns, to her chagrin:

a. That she had been entitled to full custody and full child support and did not have to negotiate away that precious time.

b. That because of the percentage of overnight time she gave up, if she desires to move from WV, for better job (to go with new husband to another state for example) she has to leave her children with the father!

c. Because her lawyer forgot to get father's promise to pay the extra child support in writing, it cost her client at least $10,000, and 500 days with her children over the next five years!

d. Finally, because the lawyer failed to explain certain issues involving custody and parental rights to the Mother, she was at risk of losing substantial, additional parenting time the next time they went to court.

e. Some of this case is irremediable, but much can be salvaged. Having the right lawyer could have avoided much worry and delay, and saved money too.

You can still find a good lawyer from friends of the community and by studying with some care on the internet. I write extensively on these subjects so you can read as much as you want, learn on your own, and hire you if you my philosophy and approach. I look forward to meeting you, your friend, or your loved one. But have them spend an hour or two on my blog first. www.burtonhunteresq.blogspot.com.

How a Good Lawyer Deals With an Unrepresented Party, alimony, custody, abuse,

2011-08-25T13:48:00.000-07:00

Here is an article I wrote a few years ago. I think it shows the essential fairness with which I approach dealing with people who do not yet have a lawyer or may not even hire a lawyer:

Tips For Family Practice Attorneys in Dealing With Unrepresented Parties and Their Families

These Tips are not theoretical. They are things that have worked for me during a 30+ year family practice.

1. Fundamental to these ideas are certain basic assumptions. They assume the attorney is a reasonably good conversationalist, that the attorney is compassionate and wants to help with both sides of the fractured family unit resolve their differences and move to a new phase in life, and that the attorney is reasonably intelligent and honest. These tips may not work for you if any of these assumptions do not apply to you.

2. Early in my practice, I spoke with many experienced attorneys who proudly advised, "I will never deal with an unrepresented party". My reaction -"malpractice". I still feel that way.

3. Since my goal is to resolve cases efficiently, collaboratively when possible, in a timely manner, and with a good result. I see no option but to deal with the unrepresented party.

4. Whenever possible (about 60% of the time), shortly before filing your petition, in the presence of your client, and with your client's permission, phone the other party in the presence of your secretary and client, introduce yourself, explain the purpose of the petition, advise the other party of their need to retain an attorney. and attempt to establish the following ground rules:

a. You will deal with one another honestly and directly;

b. That there must be no threats, harassment or abuse of any kind (or they
will see your "other side");

c. That your first choice will be a prompt exchange of discoverable
material and a prompt settlement meeting or mediation;

d. That if children are involved, they not be dragged into the controversy,
and assure the other party of your intention to respect and agree to
their establishment of parental rights.

5. This tip has many caveats:

a. With experience, you will be able to identify the 40% or so of cases where
such an idea (calling the other party) will not apply.

b. The same standards that will screen certain parties out of mediation will
sometimes make this approach impossible. Serious drug or alcohol abusers
are incapable of keeping their word, and certain attitudes, sometimes your
client's, are nearly impossible to overcome
.
c. Several times a year, I receive some complaints from clients for being
billed for calls to me from their spouse or "in-law"; so, I have added to my
"Thank You for Hiring Me Letter" an explanation that dealing with the
other side, even difficult persons on the other side, is part of what I am
being paid for and that I must be the sole judge of when it is appropriate to
do so and when it is appropriate to refuse to do so.

d. Clients need to be carefully advised, especially if they have hired you
because they hear you are a "rip your throat out" kind of lawyer, that you
intend to be polite, reasonable and honest with the other party. This is
often contrary to their expectations, and it has taken me many years to
figure out how to articulate this idea so the client won't think you are"a wimp".
This is a particularly difficult challenge if you are "a wimp" and somewhat difficult to carry out in practice if you are naturally aggressive.

6. The following are my most essential components in dealing with unrepresented parties:

a. Respect them, and show that respect;

b. Be honest. If you feel you cannot be honest with a particular party, that is
a party you should not be dealing directly with;

c. Be prepared to negotiate with the other party the same deal you would
negotiate if they had competent counsel;

d. If the other party breaches your trust, for example, by refusing to return
the child at a scheduled time, be prepared to take action immediately with
an emergency or ex parte motion. If your client has trusted your advice to
allow the spouse to see the children or to have access to certain property,
and the other party attempts to take advantage of you, you are at great risk
of being fired unless you promptly resolve the issue. Once this happens,
you will have to deal with that party "at arms length" thereafter. Until
recently, I had a remarkable string, nearly 10 years, of opposing parties
who returned children as promised without a court order. But such strings
always will be broken, and you must be prepared for that.

e. Stress during your first conversation with the other party, followed up
promptly in writing, that the other party should have counsel. Never make
implied promises based on a "wink" that the other party doesn't need an
attorney. But make sure that the other party understands that if they do not
have an attorney, you will deal with them honestly, and that no agreement
between you and them will be binding until approved by the Court.

f. All other good rules of lawyering apply in dealing with self-represented
litigants, - Prompt preparation of agreements, prompt responses to
correspondence and calls, accuracy in gathering the facts, promptness in
scheduling hearings, settlement meetings, and mediations, and properly
trained and courteous staff, help you deal with the self-represented just as
they help you deal with other attorneys.

g. At appropriate times, communicate with your family court judges so that
they have some idea of how you deal with self-represented litigants.
Every judge knows of cases in which attorneys have brow-beaten, cheated,

client and the other party if you have a judge who has learned she or he
can trust you to "do the right thing". And always do the right thing for the
same reason that you don't take that magazine out of your dentist's office.
Your mother taught you better, and it's not fair if you do the right thing
only because you don't want to get caught. Besides, you might get caught!

h. Be prepared for the accusatory question by your client or family, "whose side are you on anyway?". My response to such comments is swift and practiced. If there are children, I make sure that the client knows I place their children's interests even above their own. I stress to them how important it is to maintain a decent relationship with the opposing party and how expensive it could be if it were otherwise. I make sure they understand mat I am the person to "go to war" for them if a war is required.

i. Protecting your personal and your professional safety are imperative. I have a concealed weapons permit and "personal protection" within a couple feet of my office chair for those unpredictable and terrifying moments we hope never will come. Certain meetings should take place only in the presence of a bailiff or in the courthouse when appropriate arrangements have been made to assure that help will promptly respond. j. Taken to extremes, protecting yourself professionally would mean that you would never talk "one on one" with the self-represented. There are risks if you privately converse with the self-represented party, either by phone or in person, but I have found that attorneys motivated largely by "C.Y.A." are not that affective.

k. Many techniques can help:

i. Follow up notes, reciting the conversation and confirming the
result is a good protection.

ii. Having a staff member present during a meeting, or at the conclusion of the meeting, where you summarize and remind the parties of key points helps. iii. Memorializing a conversation by turning on the tape recorder, with permission, has its place, and prompt reporting to your client by letter, through a secretary, or by a call, helps to avoid a misunderstanding. iv. Remember, not everybody is honest, and some people hear only
what they want to.

v. I have handled many an angry call from a client to whom I have
been misquoted by their spouse or family. When you have a good
rapport, often they will discount the other party's claim.
Sometimes they will not. Explain to them what was said, honestly,
and simply, and why.

1. The next "tip" depends upon the quality of your office staff and their
personalities. We all know the attorneys whose staff is kept "in the dark",
"I make my own appointments", and who retains staff for mere "clerical
duties", typing, dictation word for word, etc. I am fortunate to have a
receptionist with nearly as many years experience as I have and two
"fearless*' paralegals with the "gift for gab". They can be trusted to relay
my messages with near 100% accuracy, to respond to questions with
mature judgment, and, where necessary, to give troubled clients motherly
and practical advice. In other words, do not be afraid to delegate but
maintain your e-mail messages, phone logs, and notes so that the level of
communication does not deteriorate.

m. A busy family practice involves a constant stream of messages,
complaints, questions and discussion. It can consume an office with what
efficiency expert Ezra Tom Clark calls "urgent, but not important,"
chatter. Nevertheless, the better family law attorneys have a knack for
accepting these messages, passing them on to the clients, getting the
client's response and getting back to the other side. It is a delicate
balance, but when it works, your client benefits.

In summary, in a world which our West Virginia Supreme Court and the "powers that be" have "thrown in the towel" regarding representation of family law litigants, with "do it yourself packages", draconian supervision of sole and small firm practitioners, and in where over 70% of litigants are self-represented, any attorney who refuses to deal with the self-represented, and to deal with them efficiently, is doomed to much grief and failure.

Protecting Our Reputation On The WEB, and Protecting Our Clients

2011-08-12T13:20:00.000-07:00

Just a short note of warning. Whether you are a high school cheerleader whose boyfriend takes "one of those pictures", a business person who gets an angry customer, a Face Booker whose karaoke photo on the web cam just did turn out as well as you thought you sounded, or a dentist, doctor, or prosecuting attorney, the web can turn on you.

The first time was funny for me. My friend Daya told me her secretary had found me in a chat room. Someone asked for the best lawyer in town, and the responder told her to run, not walk, to Burt Hunter, "because he is the biggest SOB in the county!" Not my favorite compliment.

The inquirer; said, "Too late, my husband hired him.".........."Bummer". But he told her to get Daya because the was next best. Daya took it well, and I was pleased even though the "responder" missed the point about me. He did not know I settle 90% of my cases, usually with a mediator, and that I am polite to almost everyone. (Yes, that is not universally acknowledged.)

But this last batch of reviews was different. I read in an obscure ratings site that I had six ratings. I was excited for an instant, until if saw the "unhappy face" and 1 rating. Not # 1; rather 1 out of five with five being the best.

I learned that I had told a man to give up custody of his child, that I write terrible contracts, that I told an innocent man to plead guilty, that I charged one of my clients $20 for an e-mail promoting WV Irish Road Bowling, that I yell at clients for no reason (I have yelled at clients, but there is ALWAYS a reason.), that the posters were all going to report me to the WV State Bar, and that I did not deserve to keep my license. This was vicious stuff with no foundation in truth, but there it was.

The posts were from February through April 2010. I asked my paralegal Letetia who reminded me that is when she was on maternity leave, and then she pegged it! We had one of our most troublesome clients during that time. I could say more, but (bad actor or not), he is entitled to confidentiality.

For the record:

1. I do not do criminal cases any more; haven't for ten years. The occasional domestic battery only has a guilty plea if the evidence is overwhelming. Sometimes a plea bargain is a lot better than long jail sentence. The client ALWAYS makes the final decision.

2. I do not write contracts, except my own fee agreements, and property settlement agreements and parenting plans in divorces. Those contracts have held up remarkably well if I do say so.

3. There is no "custody" any more (it is called "residential care" and "shared parenting", and I NEVER tell the client to give up parenting rights. What I do is ascertain the facts, tell the client the law, and predict the outcome. The client decides what she or he will fight for. (This particular lie about me makes me VERY angry.) Please note that my first three Google Map reviews are from long time male clients who obtained full residential parenting rights of their daughters!

4. As for yelling at a client. I will yell, , or speak clearly and firmly, if the client, as this one did, scared my staff and advised he would show up personally at my office every day until I "made" the other lawyer respond to my letters and calls. I will "yell" if her or she violates a domestic violence, or restraining, order, and I will withdraw from a case where the client persistently disobeys the court or ignores my advice. My theory is that I cannot help such people, so I move on to people that I can help.

5. I kicked a guy out of my office once. He had put his wife in the hospital with his fist, but what we argued about was he had gone to the family residence and pulled out every single shrub from the fr front yard. When I questioned his judgment, he said, "Those are my f...k' ng shrubs, and I will do what I damn well want to with them." I said,"Well this is my ( .....) office, and you will get out of here. Was there a shove? I don't remember.

6. Then there was the client who demanded I tell his wife that if she asked for alimony, he would turn her in to the prosecuting attorney for signing his name to a credit card application. I politely explained that is the felony crime of extortion (Threatening criminal prosecution to get a civil benefit.) He persisted, so I withdrew, and he turned me in to the State Bar Disciplinary Counsel. I defended my self as I always do if I get a complaint. And, as has happened throughout my 35+ career, no unethical behavior was found.

7. Consider this; in 38 years, I have never been sanctioned or disciplined or sued. Well, there was the fellow I decided to sue for my fee; he counter-sued for $700,000 (in magistrate court, jurisdiction $5000! He did not like the ruling that his mother's time with the child did not count as his time, and that the court did not think his wife's drinking problem was as big as he did. Clients occasionally become outraged at the rule and somehow blame the judge or the lawyer.

8. The Internet complainer, who got me started on this subject, finally said, "Burt Hunter lazy and disorganized"!! That did it! Even my worst adversaries do not accus me of that. As he no doubt would have liked, my hand shook, face turned red, and I sputtered. My wife threatened to go into the other room if I did not shut off the computer.

9. Because you see, even though I have a "lazy streak", I fight it. I go to work by 7:00 a.m.. I work at least 10 hours each day. I leave too much here at home for my dear wife to do. I work Saturdays, and read, study, and learn a lot of the rest of them time. I attend 300% of the State Bars requirements for Continuing Legal Education, keep a staff of four, and sometimes five, breathing hard, and organize, organize, organize.

10. And, still, I make mistakes. I missed the word "without" in a property agreement this week. It could have had adverse ramifications for the client. The client caught is at the last moment. I thanked him and apologized. He accepted.

11. But am I the fellow in those ratings? Not even remotely. Does the author have the right to free speech. He sure does. He was the same bully in those posts as he was to his wife, (who caught him in an affair.)

The lesson I learned is............not sure. I would yell at him again if he offended my staff, or did any of a dozen stupid things. By "yell" of course, I do not always raise my voice, and try never to use profanity. The person who dates the the gal a week after his separation was told not to, and I will remind him I told him not to, especially if he/she takes the children around the new significant other. If they do, they hurt their children and their standing in court. So, I must be firm with them, and chide them when they need it.

Some people are charming and gentle. Sometimes I am, but sometimes I am not. I am very gentle and considerate of people who come to me who are hurting. I have a folder of thank you notes that I cherish. Got one this week; from a client who lost after we filed five appeals!

The person who called me a "tough sob" was aware of one side of me, but not the real me. The real me gets up every day wanting to do the right thing, wanting to protect children, wanting to make a good living, wanting to be well thought of in my profession, and wanting to help people get a fresh start in life. I do not get up saying, "Who can I bully today."

But, do not try to bully my client or me. That we do not take. If you find those posts, please consider both sides. I am not the easiest lawyer to have, but I will be loyal to you, so long as you can be loyal to yourself.

Fat and the Law, and Society

2011-08-11T14:14:00.000-07:00

In editing my blog for my Kindle Book, I found this draft, from August 11, 2011, but never published. I considered it to be too controversial, as I mentioned in my Sept. 16, 2011 post. When I outlined my thoughts for this post, Dear Wife Nancy was concerned. She cares a lot for a lot of people who have weight issues. So do I! I have proofed and rewritten this, and it tends to duplicate some of the Sept. 16 post, but I still think my observations are valid, so here they are.

Contrary to appearances, I sometimes write about something IN SPITE of my desire to do otherwise. I write in this blog on topics I believe will be of interest and will help my clients, potential clients, colleagues, and friends.

I posted a note to FB on my views on religion, "religiosity" and philosophy. ( It ruffled some feathers. I may include in my Kindle Book.)

I will not tackle race or gender issues, even though WV's coal miners' families were targeted by the "Kansas Krazies" after our WV Supreme Court wisely awarded a child to her lesbian, non-biological mother. Race is beyond me, and not a major, immediate, problem in Buckhannon, where almost everyone is the same race.

But fat (obesity) is a huge problem in WV. We are the "Fattest of 50". This is counter-intuitive. How can "rugged mountaineers" who have provided the highest percentage of soldiers and casualties in our wars, and whose landscape is one big "stair stepper", have the highest obesity rate in the country?

No doubt, the problems we have with our economy, poverty, educations, and our mountainous terrain, the very things that rank us so low in these areas, help to rank us high in obesity.

How is obesity a "legal issue"?

1. Let's start with divorce. I had a client who everyone described as petite and beautiful as a young bride, appear in my office exhausted, with immune system problems, back problems, digestive problems, high blood pressure, depression, and a husband who had walked out on her.

2. The witnesses said she and her husband had had a near idyllic marriage for 15 years.

3. But, when I met her, all she could do was cry. She had increased her weight, over the years, by MORE THAN 100%!

4. She and her husband had stopped being intimate, and she had applied for SSI (welfare) disability benefits. Why "means tested" benefits? Because she had been a stay at home wife and mother. Now hubby just wanted to "throw her away".

5. "Means tested" benefits are awarded only if the applicant is nearly destitute. She or he may have no more than $2000 in cash assets. They may own a home, I think, but most don't. Any earnings must be deducted from the benefit, so there is no incentive for the person even to work part time. And, the benefit is around $600 per month.

6. That means that if I get my client $300 per month alimony, she gets that $300 and $300 from the government. She is stuck at $600, so her only hope is to live with a relative. In one case the former husband continued to pay her "under the table". She "fired" me so she and he could go in and lie to the court.

7. I thought how I have figured out how to put the alimony into a "special needs trust" for use on all sorts of things, fitness equipment, roof repairs, even a new t.v., but the WV Dept of Health and Human Resources (WVDHHR), after approving one of them, wised up and objected, and the Court agreed with them. No more special needs trust funded by alimony.

8. So, lifestyle choices, comfort, fast food, and sedentary habits, lead thousands of West Virginians into ill health, unhappiness, poverty, or all three!

9. WV working men are more likely to work until their 50's when the back, knees, and hips go out. Then they apply for Social Security Disability or Worker's Compensation. These are much more robust programs. The combination of obesity and injury to a back or weight bearing joint, on combined with heart or breathing issues, is a gold mine for the Social Security and Workers Comp bar. I once associated with an attorney who told our client, "Whatever you do, do not lose weight. You are ten lb. over the Social Security minimum, so keep eating." I withdrew from that case. It made me sick to see him recommend that our client do something that would send him into an early grave.

10. Then there are the obese personal injury victims, such as the woman referenced above whose weight doubled during their marriage. She still had the same skeletal and muscular structures that she had as a younger woman, except for the arthritic joints, with "ossification" (build up of bony structures) of the joints. When obese people are in a collision, there is an exponential increase in the stress to ligaments and bones. Ironically, getting them fair compensation is harder than for their thinner counterparts.

11. The adjuster knows that juries do not like fat people, or old people, or homely people, or dumb people (sorry for those labels, but it is a simple statistical fact). Juries like attractive people, and young, but not too young, people. Juries also perceive children as "the enemy" because they tend to identify with the adult licensed drivers. They put themselves in the shoes of the defendant and tend not to be generous to children.

12. Whether they admit it or not, the jury tends to believe that the obese person somehow deserves the greater injury and will not compensate them for it.

13. I once had a client, who weighed over 500 lb., who nearly lost the ability to walk from an impact that did not seriously injure his much smaller wife. Yet, she insurance adjuster would not pay him as much as he offered to pay her. Sadly, believing that the jury would see it the same way, the couple accepted the offers.

14. I know this article is not going to change the world. We live in a state where the most nurturing group a person can find, her church family, serves and sells, macaroni and cheese, barbecue, tacos, hush puppies, apple pie, mashed potatoes, candy, cookies, strawberry shortcake, homemade ice cream, and other goodies dozens of times a year. Churches can save us for Jesus but do not dare to try to save us from ourselves.

16. Fattening food is the major draw to many church events, and the harsh reality is that mainstream churches are dwindling anyway. So, you are not going to hear the preacher railing against the pancake breakfast, or the men's bacon and egg breakfast, or the ice cream and shortcake.

17. Why doesn't every church have a women's and men's exercise group, a nutrition study group, or a children's healthful eating program? You tell me.

18. That's enough beating up on churches. We have busy lives. It is so hard to stay "low card" when you eat at drive-throughs three or four times a week as I do. But, 5-6 months out of the year, with great effort, we work to knock off that 10-15 lb. that tend to build up. I am fortunate it isn't two to three times that.

19. Dr. Laura, the radio personality, is pretty tough on this subject for women. She criticizes the obese person who failed to attend to weight, fitness, and intimacy issues to the detriment of her marriage and family. It is easy to criticise, but the simple fact is obesity is a plague on our society, and especially on West Virginians. ,

What's With the Free Videos?

2011-08-07T07:00:00.000-07:00

This is a short post to explain the appearance of videos in this blog and elsewhere.

First, I invite you to visit my new domain url, for 20 "free videos" It is:

http://tinyurl.com/3ofvsuz

This is a link to a "video book" created by my friend, Dick Billick, who now is "Dick's Marketing", www.dicksmarketing.com/ . He is a social media advertising consultant. He liked my videos, including a few bloopers, and turned it into a video essay on my experiences, and lessons learned, as a practicing trial lawyer for over 30 years.

During a "working vacation" recently, I reviewed my 18 months of blogging activity, and came up with several dozen topics directly from my table of contents.We culled 100 "takes" into 36 videos on a variety of topics. Dick snagged a few from the "blooper bin" at my expense. We've been doing that sort of thing to one another for over 40 years.

Dick's enthusiasm is infectious, so I now commit to creating a book of @ 200 pages covering my three major areas of practice within the next year. Much of the raw material is already available in my blog, website, and videos.

My marketing follows three fundamental principles:

1. Provide to the recipients value, value, value.

2. Never exaggerate or over promise.

3. Do not take myself too seriously. If you do not likely something I post, ignore it or give me some negative feed-back.

Trial lawyers are natural hams. We have to perform, for clients, mediators, judges and juries. If we cannot communicate, we lose the close cases or get less than the client deserves.

So, this is a continuation of my efforts, over more that 35 years, to communicate, teach, and succeed.

Burt Hunter

Personal Injury and Divorce In West Virginia

2011-08-06T23:39:00.001-07:00

Dear (Personal Injury)Client; (Points You Must Remember During the Processing of Your Personal Injury Claim)

2011-07-31T08:37:00.000-07:00

(Note: Feb. 10, 2012. J.B.H. This is straightforward, bread and butter, stuff that everyone of us should have, since EVERYONE is a potential personal injury claimant.)

Typically, during our first interview or two, I learn a lot about your claim and injuries, and I tell you a great deal about the "rules" and the law. When you get home, however, must of what I told you is a blur, so here are the key things you should remember.

1. If you are my client, I already learned you have a serious injury and it appears to be the result of the "negligence" of someone else. That is, they broke a rule or a law, either intentionally, by speeding or texting and driving, or just not paying attention.

2. Injuries and fault mean nothing however mean nothing without an ability to pay. I have never gone after a tortfeasor's house or car, and most clients don't have the stomach for that anyway.

3. That means we must find some insurance coverage. If you get hit by a Fed Ex or Wal-Mart truck, that's not much of a problem, but if you get hit by the proverbial teen-aged punk or little old lady who forgot to pay her insurance premium, you may have BIG problems ON TOP OF YOUR INJURIES.

4. So, the analysis of your auto insurance, home-owners, medical coverage, or "personal umbrella" becomes essential.

5. Remember:

a. Med Pay, or family coverage, is the coverage you should have on your own auto policy to provide $5000-$25,000 of coverage per person for immediate medical bills REGARDLESS OF WHO IS AT FAULT. This means, even if YOU caused your injuries, this coverage kicks in BEFORE your medical insurance needs to be used.

b. When you settle with the tortfeasor, you have to pay all or part of this back, since your carrier stands in your shoes here and has a SUBROGATION CLAIM. Where one company covered both sides, we sometimes can get the subrogation claim waived, but that's too iffy to discuss here.

c. If the person who hit you has little or no liability coverage, they may be facing criminal charges, BUT you must pray that the "full coverage" you thought you had protects you with:

1. Uninsured Motorist coverage (U.M.).

2. Underinsured Motorist coverage (U.I.M.)

3. A "personal umbrella", usually at least $1,000,000, which hovers over all of your other coverages. (Note with this; you can have an umbrella with holes! I actually had a case where the agent wrote to his clients to talk them into getting an umbrella, convinced them, but failed to provide them U.I.M.! It turns out that in WV he HAD to, so they got the coverage, but YOU cannot risk having that good fortune.

4. Of course, most of you are reading this AFTER your collision, so we will do the very best for you that we can. We will leave no stone unturned. If a child is injured, perhaps the child lives in TWO household (e.g. post-divorce) and perhaps we can stack or combine coverages.

5. Even the State of WV carries liability insurance for some situations: a. State Cars, b. School Buses; c. Premises Liability. In those instances we deal with a State Board of Risk in trying to settle your claim.

6. It is possible you were injured by the combined mistakes of two or more entities/people. A good example is the person on her cell phone who follows you too closely. If you have to break for a light or darting child, she may slam on the breaks and barely miss hitting you, only to have the poor "doofus" behind her "rear-end her" and drive her into you.

7. The police will ticket the "doofus" but not the person who caused the wreck since she managed to stop. I bring the claim against both drivers, neither who followed the fundamental rule of leaving plenty of space and staying alert. Their breaking of the rules combined to mess up you back and your life and maybe injure your loved on! Of course their insurance will pay. Or, you could have a situation similar to one of my pending cases where my client was injured by the combined mistakes of TWO DRUNK DRIVERS! That doesn't happen often, but it give me an edge in negotiations when it does.

8. AND REMEMBER:

a. We have given you forms to fill out (too many, but I am working on that). Please fill them out conscientiously. I had two clients, poster children for what NOT to do.

1. The gal forgot to tell me that a chiropractor treated her for an injury at the exact place of the new injury FIVE YEARS BEFORE. She lied about it during discovery, and I caught it the morning of jury selections. We salvaged a fair settlement, but no thanks to her. She failed to realize that I can turn a pre-existing injury into an asset IF I KNOW ABOUT IT. Any reasonable juror or adjustor knows a body part previously injured is more susceptible to re-injury. It is called exacerbation!

2. The guy had a frozen hip from a "t.b. infection" when he was 13. I think they call it sepsis. He worked as a barber for over 30 years. He was hit in side by someone running a stop sign and his career ended because the hip was freed up to move "bone on bone"; ouch! The claim was worth at least $100,000, UNTIL the defense lawyer called to tell me that fellows Social Security Disability file contained an affidavit from my client swearing he had sustained "no serious physical injury during the last five years". Aghhhhhhhhhhhhhhhhh! I called the fellow, and he sheepishly explained that he felt he had to lie, or not get his disability award. He was SO WRONG, not only did that fact HELP his Soc. Sec. form, but the false statement showed he would lie, even under threat of Federal prosecution for monetary gain. We took a measly $20,000 settlement and never spoke again. He cost himself $80,000!

14. SO MAKE SURE WE HAVE ALL THE FACTS, WITHOUT OMISSIONS OR LIES. All our injuries, your bills (bring them in AS YOU GET THEM!), your lost wages, your benefits, your expenses!

15. There are two tools we use to good effect:

a. Your diary. This is a journal that you or your spouse maintain. Short entries, but specific; about your missed trip to Kennywood Park, your inability to hold your grandchild, the pain of intimacy and impact on your relationship. NEVER, NEVER exaggerate and read my blog article on tips about SOCIAL MEDIA. Your posts to Facebook can kill your personal injury claim (or your divorce or other case.)

b. One client's journal contained such an angry rant that I had to meet with him and tell him any jury who read it would find him angry, petulant, and nasty. He broke down into tears and admitted that he agreed. Turns out he had come back from a very serious workers comp injury and the new injury had caused him to feel overwhelmed and helpless. A forensic psychological evaluation revealed a classic case of post-traumatic stress disorder which enhanced the value of the claim and led to successful treatment of the P.T.S.D.; SO, communicate effectively using a well written journal.

c. We utilize lay witness letters. That is, we do a letter that you circulate to friends and relatives asking them to write a letter tell us of their observations of you before and after your injury. We provide a self-addressed, stamped, envelope, and ask the author to give name, address, occupation, relationship to you and what they have observed. Clients who never complained and thought no one new, learned that their friends and family had observed much about their suffering, pain, limitations, and change in attitude. Strong, happy, assertive people can become very withdrawn and remote. These letters are often outpourings of love and concern and are helpful to document the claim, and are even therapeutic. They and the journal are often steps in the emotional recovery.

16. If you have stayed with me this far, I have some final advice;

a. Read this again, and several times during this process.
b. Stay in touch, with my paralegal and me. Bring us your diary as you write it, call with questions, let us know when you are going to the doctor, getting therapy, or scheduled for surgery. If you marriage is going on the rocks, we must know. And if you are thinking of hurting yourself from despair GET IN HER AND SPEAK WITH ME.

17. Yes, like everyone else, we would like to get rich, but your individual case is about getting you a fair recovery, helping you rebound, and helping you and our family position yourselves for the rest of your life.

18. See you soon; Your Lawyer and His Staff.

Why Do You Have a Blog Too Mr. Hunter?

2011-07-25T09:42:00.000-07:00

Around 18 months ago I began to get serious about maintaining a blog.I had been studying social media and marketing a law office, and I have a lot to say.

Since then I have posted nearly 150 pages. And, I still have a lot to say. (Note; as of Feb. 10, 2012, I now have approximately 200 pages, and I have spent a week, at Wrightsville Beach, N.C. and Jekyll Island, Ga. proofing, revising, adding to, and posting photos and videos to my blog. I tried to add key words to most of them. This afternoon, I shall produce it as a PDF file book. I may have some friends proof and critique, then revise again, convert to PDF again and then converto to a file that can be read as a Kindle Book. Then select a price, perhaps $1.99, and I may have my first Kindle Book.)

We have had houseguests for a week, so this will be my shortest post in a long time, but here is my video answering the question above.

Burt Hunter

Practical Technology 102

2011-07-15T13:49:00.000-07:00

It is easy to spout some of the tips and ideas I stumble over and another to find things that work. Here is what I learned today: If you get one of those miraculous Fujitsu Scansnap 1500 Scanners, with bundled Adobe Standard 9.0, check your default. You want to make sure you are scanning to your client or personal folders "searchable PDF"; otherwise you may have difficulty searching within the body of the document.

Here is a great way to do legal, or any kind of, research. Go to your legal research software. I use Fastcase. Many Lawyers use WestNext and others Lexis/Nexis. Take the cases cited by your opponent, and the cases you find, and line them up in the queue for printing. Or, take any research materials that you can turn into PDF files.

Print all the cases, or material, to searchable PDF files. Take the other side's brief, pleadings, and other relevant documents. Scan them to PDF. Use the "combine files" feature on Acrobat. Now you have a BIG file. You have to read the darn cases and documents anyway, so better to have them together.

Now, as you identify key issues, facts, and legal points, highlight them in yellow, and annotate with legal stickies. Hit "show all comments" and there they are. Print the "comments only" to a PDF. You will have all your notes, indexed to page and paragraph number, labeled from you, and you will have the key document you need to dictate your brief, statement of facts, statement of the law, argument, or your term papers, memoir, or anything else you care to write!

Consider having a second screen set to portrait (vertical), but working at home today, on my Dell Latitude Laptop, I could easily adjust the screen for large print. I selected the little hand tool, so I could pull the screen up as I needed to.

And, to show demonstrate that Internet marketing and technology work and go "hand in hand", I told my Findlaw rep that I had completed my 30 videos and he asked me to send it to him on disk. Instead, 10 minutes later, he had the files, which took me 12 hours to upload, on his desktop, using DropBox. Stay tuned, since people I trust say it is my best stuff so far. And I had FUN doing it.

And, a young woman, with serious injuries caused by a reckless driver, scrolled the Findlaw lawyer listings using Google, found me with my background in the USAF JAG (her husband is a pilot) and, after a one hour chat, hired me. That's a client I would not otherwise have got.

In the meantime, today I answered my staff's questions and gave them guidance, all the while working from home. I think my productivity today was enhanced 100% with my technology. Give me as call if you need our services, and I will try to do the same for you.

Kacie Anthony and Miscellany and Videos, July 5, 2011

2011-07-05T15:06:00.000-07:00

Just a few thoughts: 1. My failure to post the last few weeks does not mean I am easing off. I am just reloading.

2. I am home this week for a "working vacation".

3. Tomorrow, with my wife Nancy as videographer, I hope to refresh my video library with 20-40 30-60 second spots, with frequently asked questions (FAQS), a guide to my blog, and others.

4. I am reading David Ball's "REPTILE". David, and co-author Don Keenan are the most sought after trial and jury consultants in the U.S. It is a powerful counter to the unrelenting attack on our jury trial and civil justice system. He advocates our appealing to potential jurors' immediate perceived self-interest in the interests of a just result. More on that later.

5. Just sitting on our decks during a near perfect July weather week is very comforting. No hectic travel, vacation expenses, or distractions. I guess we are having a "staycation".

6. I am re-reading my blog book in gathering topics for my videos. I am proud of it. From a one year, and more, perspective, I think it has plenty of humour and insights; some really good bread and butter stuff. But, I admit to disappointment in my failure to generate discussion. I had hoped to stimulate thought and to contribute to an improvement in my and my colleagues' efficiency, professionalism, and collegiality. Even those I have gently taken to task have remained mum.

7. No one brought me a colleague's five year CLE list greater than mine's, so no one yet has "won" $100. My interest in Reptile derived directly from hearing Mr. Ball at a WVAJ seminar.

8. Two of my WVAJ colleagues went so far as to say my blog observations are of no perceived interest to the 70 member WVAJ Board of Governors. Sadly, that may be true, but I write almost equally to colleagues and potential and present clients. For clients, several posts are "mandatory reading assignments". Others, of course, have been very complimentary.

9. Finally; I am here rather than Facebook this evening because Kacie Anthony appears to have bogged down the Hughesnet satellite. I did not follow the trial closely, and I have no doubt she committed a terrible act, but it occured to me before her acquittal of all felony charges that I was not very sure of what terrible acts she committed. Many juries would compromise on something in the middle, being fearful of taking the life of another human by mistake. I suspect there was sufficient evidence, but I did not spend a couple months of my life hearing it.

10. I admire the jury for not accepting their "moment on the sun" after the verdict. Time to go home with their family.

A Study In Hypocrisy

2011-06-19T14:47:00.000-07:00

Once in a while my plans for a post are "post-poned" by something hitting the news. Once it was the kid they tazed for running across the baseball diamond (my title: "Taze the Kid?", May 5, 2010) ; another was prompted by a death penalty story (my title: "Scumbags and the Death Penalty", May 7, 2010).

Usually I refrain from posting on politics to my blog, leaving that to Facebook. I am a militant "centrist". The test I took on the Internet says I am 1% to the right of dead-center; fiscal conservative, social moderate.

I posted to Facebook my indignation at NPR's ousting of Juan Williams for having the temerity to admit that a man in full Muslim garb at an airport made him uneasy, and, ironically, later I posted a mild rant at the Republicans for voting to defund NPR.

This week's news story is Congressman Andrew Weiner, who just resigned in disgrace, amid indignant demands that he leave. The Republicans, noting the media was after the other side's guy for a change, were rather silent. It was his fellow Democrats who insisted he go.

The "social media" element to the Weiner story makes it relevant to several of my blog postings on that subject. Do NOT post or mail anything you would not want your spouse, mother, or minister to read.

I didn't like the guy. Didn't like his looks, mannerism, or attitude. As smart as he was, his initial announcement that he was hacked caused the hair to raise on my neck. His arrogance grated, his lies offended, and his insecurity, tackiness, and deceitfulness were plastered all over cable news.

I was ready for him to resign earlier than most, and I have no doubt that we would have heard even worse if he had stayed.

Then I listened to some callers to an NPR talk show. There were those who found nothing that bad about his lying. I disagreed. Bald-faced lying to his constituents, the media, the country! It was clearly a character flaw. Another guy, rather candidly, complained that he did not keep his sexual silliness private. He seemed not to care that what the fellow did was immoral and violative of his marital vows. He just did not want to hear about it. I had to agree.

Finally, a fellow called in to suggest forgiveness and redemption. His theory. Weiner is still young, impetuous, and full of himself, which is why he managed to get himself elected. His electorate pretty much knew that when they chose him. The condemnation and humiliation is powerful. He would have to work long and hard to redeem himself. He has lots of potential. He is likely to be on his best behavior for a long time.

That caused me to remember the biggest sex scandal I can recall in American History. Alexander Hamilton, model family man, beautiful and wonderful wife to whom he was devoted, and loving father, got involved with a 20 year old married woman. They had a steamy affair.

In a contrived situation, her forty year old husband burst in on them. He was so shocked and mortified that only money could make it better. Thus Hamilton remained encoiled with these people for a rather long time. He would succumb to her, the husband would be more enraged, and more money changed hands. A political enemy leaked the news, and the press was on it, in the colonial version of CNN, FOX and the National Inquirer.

Hamilton had no better his crisis than Weiner di, although if his name had been Alexander Weiner, our country might have been much different. In fact, he wrote long, detailed accounts of the events for publication in the New York City newspapers. His primary focus was to show he used no public funds to pay off his blackmailers. Hmmm? Sounds like John Edwards.

Hamilton's wife was mortified and humiliated, but stayed with him and lived until right before the U.S. Civil War. She would pull out to visitors a brace of flintlocks, personal gift to her husband by George Washington.

My colleague Pete Conley posted to Facebook his retort to my praise of Hamilton that he "probably wasn't in the top ten", and I promised a note in response. I guess this is it.

If Alexander Chernow author of Hamilton is to be believed, Washington would not rank Alexander Hamilton where Pete, and so many others, would. He was the strong right arm of the Father of Our Country.

History so far has been much kinder to Jefferson, Washington, and Adams than to Hamilton. I suggest Hamilton's tendency to "know it all", his obsessive personality, and this scandal, contributed to this. In that way, Hamilton was a "wiener".

I suggest that among our founding fathers Hamilton was second only to George Washington, and that because Washington was a man of greater character. Hamilton came to America at age 13 from a Caribbean island, son of a single mother and absent Scottish father (a la Barack). He had only a couple of letters of reference to help him, but he managed to get a fine education.

He caught Washington's eye early in the Revolutionary War as a young, courageous artillery officer. The young army was a rabble, but Hamilton had great courage and flair. He became Washington's personal secretary, writing most of his dispatches, orders, and letters throughout the war. He had a great flair for writing.

Hamilton almost single handedly got the U.S. Constitution ratified by the N.Y. Legislature. Without New York, it could never have become our Constitution. He worked round the clock and virtually willed the approval to happen.

He wrote over 60% of the Federalist Papers, which are readable as the foundation of our political system even today.

He read voraciously in politics, economics, and banking, and invented the American Banking system.

When he and Washington parted, after many years, neither man was as effective apart as together. Chernow paints a picture of a complex, driven, indefatigable, flawed genius. I sensed the bio was pretty accurate, which helps explain why so many people disliked him.

And, he died from a bullet from Aaron Burr's gun. He intentionally shot into the ground; Burr shot to kill
.
Weiner also is a wiener. He certainly is not a Hamilton, but now we probably won't know what he could have been. They say perhaps Mayor of New York City? Ironic that he might have been a terrible mayor, a scandal waiting to happen, if this scandal had not happened, but what would he be, sadder but wiser, having gone through this humiliating experience. Certainly the net value of Hamilton's services to his country is nearly incalculable, in spite of his scandal.

I am reading another book, on Kindle, "The Clockwork Universe" by Edward Dolnick. What a terrific summary of the progress of the human mind through the Age of Enlightenment. Copernicus, Descartes, Newton, Leibniz, Spinoza, a small core of brilliance; hundreds, not thousands, of superlative thinkers, similar to the outpouring of thought during the Classic era of Greece. Surprisingly, we learn that no truly great discovery comes from one person, in fact, time after time, when "the time is right", the original ideas spring from more than one mind; thus Sir Isaac Newton, and Gotlieb Libniz invent "the calculus" and Wallace and Darwin discover evolution, and Watson and Crick and so many others regarding DNA and RNA.

The truly brilliant thinkers are so few among our population. Yet, the chance they will also be "nice guys" is slim to none. To chart truly new paths, these fellows had to be single minded to an obsessive level. And, the egos were often huge. Darwin's, not so much, but Newton's? No wonder he could master the concept of infinity! His ego and selfish approach were huge. He worked hard to destroy his main rival Gottfried Libniz, whose version of calculus actually caught on and spread much better than Newton's.

I have no idea how smart Weiner is. He didn't appear to be that bright last week as he dug his own political grave. He is a bundle of energy and ambition, and they say he is bright. Politically, I do not know much about him except that yelling rant on the floor of congress and the fact he is much too liberal for my tastes.

When my friends and acquaintances screw up, showing up in the paper for various foibles, dui arrests, troubles in their profession or family, I try to drop them a note, not to approve of their mistake, but to remind them that someone knows they are still human beings, caring about them. Weiner's revelations were pretty hard to take last week. His friends, or those he considered friends, lay pretty low.

This country is not very grown up when it comes to sex. And we do not handle racial issues that well either. I doubt anyone can justify the amount of media time and attention Andrew Wiener's story took up. Perhaps the fellow suggesting that we give him a second chance, a chance to redeem himself, was not that far off base.

Why Should I Retain Burton Hunter For My Personal Injury Claim? #2

2011-06-10T13:47:00.000-07:00

(Note: February 10, 2012. J.B.H. This post is not nearly as self serving as the title implies. It describes my early experiences with personal injury law as a spring board for an explanation of our tort law system in WV. Our system is based on a fundamental value that we should be responsible for our mistakes, our reckless behavior, and our intentional wrongdoing. George W. Bush would have had us believe that asking for recompense from an "at fault party" is somehow un-American. The documentary "Hot Coffee" helps thoroughly to debunk that myth by dissecting the infamous "McDonald Coffee Case" and the elderly woman, maimed for life, who filed that claim.)

Now I am back to my theme: a series of posts describing the training and experience which allows me to represent the victims of serious injury effectively.

I am pleased that some of my clients have applied the "bulldog" label to me. It probably suits me.

But, how did I get here, and how have I come to represent hundreds of victims of accidental injury? The answer to that story should be reassuring to someone seeking a reliable and competent personal injury lawyer.

My law school torts professor, Tom Cady, who is still there, is a very entertaining fellow. A "tort" is an injury caused by one person upon another. Professor Cady made the course very interesting. I wish that were so in all my classes. He used humor and irony to make his points.

Back then WV had "contributory negligence", which was supposed to mean that if the injured party had even one per cent (1%) of the fault, he/she was barred from recovery. This harsh rule led to myriad exceptions, which we were forced to learn if we wanted to pass.

I learned that juries ignore contributory negligence and apply their common sense, when I lost my first "mock trial" in law school even though the injured victim had also been negligent.

Of course, just few years out of law school, they completely changed the rule! They have been doing that ever since, changing the law just when I get comfortable with it.

Now WV has "comparative fault", which has two components:

1. Victims who are 50% or more at fault cannot recover; and,

2. If the jury determines the claimant was partially at fault, say 35%, she/he can collect only 65% of the proven damages.

Simple, right? The devil is in the details.

The source of the law in WV is:

a. The Common Law, which came to us from England, and which we shared with the state of Va. until 1863;

b. Statutes, which are written and passed by our legislatures, state and federal; and,

c. Case law, which comes from appellate courts, also state and federal. The highest court is the U.S. Supreme Court. WV's highest court is the WV Supreme Court of Appeals.

I learned from one such early reported case, the "thin skull theory", which I have since used to collect hundreds of thousands of dollars for my clients. In the facts of that case, a fellow struck another on the head with an object, perhaps a book, in jest. Which of us hasn't done something like that to another classmate?

He expected to stun or startle him, but the congenitally thin skull collapsed, killing the victim. This was good for the person doing the striking since by English Common Law damages for wrongful death were grossly limited. It would have been much more expensive to reimburse a brain-injured person for life.

The appellate court ruled that the injury was "foreseeable" since a certain percentage of the population will have "thin skulls". In other words, many people have greater than average susceptibility to injury. The tortfeasor (a tort is an injury) takes his victim as he finds him.

Insurance adjusters love "pre-existing injury", or conditions, because they argue that a previous injury to a neck means that the more recent collision was not the cause of the claimant's pain; the first injury was.

Dealing with pre-existing injury is child's play. Just disclose it early, show your client has not been treated for that injury in several years, and argue that it is the seriousness of the first injury that makes the client's claim for serious pain and suffering more believable. I have found that I get more money for the client with pre-existing injury.

If they client has been treating for the prior condition, it is imperative that her treating physician render an opinion to "a reasonable degree of medical certainty" that the recent event exacerbated the condition and created a new injury.

Even then, while the insurance company may hire its own doctor to opine that the symptoms are from the first injury, I argue that the client was more susceptible to injury.

I still settle most of those cases.

For my next post, I shall discuss the foundation upon which I created a busy personal injury law practice, starting with four years of service as a U.S. Air Force assistant judge advocate, USAF-JAG.

Disposing of 5000 Closed Client Files

2011-06-02T16:29:00.000-07:00

As promised, I have two articles in draft on the continuing subject of my personal injury practice, but making them readable will take 3-4 drafts each. I keep thinking of other key events in my developing understanding of how to represent individual injured by the fault of another.

As I am every year, I am as the WV Assoc. for Justice two day seminar. This is our annual meeting. I could not have maintained a busy personal injury and trial practice without our Association.

When I am here, I have plenty of time to think. The interruptions of e-mail make that less so, but I have learned to live with multi-tasking.

Today I figured out the next two BIG stages on the way to the goal of having a paperless office. I think I have a good solution for small firm lawyers who have decades of files "in the back room" and have begun to wonder "what if".

Our office no longer needs to save voluminous paper files. My 5000 closed files, stored on our second floor, will soon be confetti. It will take longer for files younger than ten years, and for my active cases, but I will get there.

I intend to do 1000/day for a total of no more than five days, three if I am lucky. We will need to notify clients in advance that we will close those days and hope they will understand. My staff of four will be running all day, and we need two pair of strong, young, legs, and two extra helpers on the scanners. The nine of us will be a buzz saw.

I will also need the large box from the paper disposal company.

We will set up all 7 of our Fujitsu ScansSnap scanners, and perhaps bring in a couple of "guest scanners". Assuming at least 5 are running throughout the work day, that equals 100 double sided sheets a minute! This is not a job for our Toshiba Studio 2300. Perhaps Heater-Hart can convince me otherwise. It is a battleship. The ScanSnaps are destroyers, or PT boats.

I will strip each file of its essential 10-15 pages for everything older than ten years. The strong legs will carry each banker box downstairs and strip the metal fasteners and paper clips.They will dispose of everything as we go.

As I strip each file, my memory will be assailed with the people and events of a long career. But, the clients and their families are entitled to confidentiality. Fully outdated materials will simply be shredded. Ten years is a long time, much longer than time the our saves recordings of their hearings.

I will publish adds in Upshur and surrounding counties, offering to returns files to any former clients. I suspect few will respond.

We will develop a "rule of thumb" of how much we must save of the last ten years' files, per State Bar Guidelines. Much of that is digital already, so it will not be as much as you might think.

The other phase is going to take guts. We already scan everything that come through the door. We just need to learn to drop the paper into that box, which will be removed by the disposal company each month.

My sense of freedom is already growing. Now, what shall I do with 30 years' worth of office equipment and our adult children's stuff?

And, NO I AM NOT retiring, not for 10-15 years, and not when I am starting to get the hang of this stuff.

Why Should I Retain Burton Hunter For My Personal Injury Claim?

2011-06-01T14:06:00.000-07:00

Retain Burt Hunter? This is a fair question to ask, but it is really two questions:

1. Why can't I just handle my own claim?

2. Why select Burton Hunter instead of one of the many other lawyers competing for my attention.

As for question # 1, even a "routine rear end collision" creates many tasks and issues to be resolved.

These tasks include analyzing the various insurance coverages, communicating with your own carrier and the other guy's, getting your bills paid, obtaining a rental car, locating and interviewing key potential witnesses, collecting your medical records and bills, getting key photos of the vehicles and the scene before evidence is lost; and doing at least a fundamental accident reconstruction. All of these tasks, and many more, must be considered in order to SETTLE THE CASE WITHOUT A LAWSUIT!

Many people do not go straight to an attorney because they do not even know these tasks exist. They do not want to file a lawsuit, which they mistakenly think the lawyer will do, and they would rather not have to share a percentage of the settlement with a lawyer.

I believe these reasons are fallacious.

A good lawyer should be able to settle your claim for 50%-100% more than you can, WITHOUT filing suit, without filing suit.Thus, the net to you, even with a lawyer, is more, and you get it sooner.

Each claim has 10-20 components, which your lawyer and the adjustor know about, but which you probably do not. There is simply more work to putting together a claim, especially if there are multiple vehicles or issues, than you realize. And, even if you have been through such an experience before, the right lawyer has been through it hundreds of time.

The pace of the correspondence with the adjustor and doctor, the submission of "lay witness letters" from people who know you, the creation of a well-organized "demand package", with photos, visual aids, medical illustrations, vocational reports, forensic lost income projections, and other convincing features, can make a huge difference in the success of your claim.

Knowing how to prove that medical bills are "fair and reasonable", and the treatment reasonable and necessary, is critical.

And getting an expert to evaluate the cause(s) of the collision, to make a written diagnosis, to voice an opinion regarding permanency, to estimate the costs of future medical treatment, and to opine whether surgery will be required after settlement, are often keys to success.

Knowing how to present evidence of pain and suffering, mental anguish (psychic pain), temporary and permanent impairment, disfigurement, loss of enjoyment of life, and loss of consortium of your spouse is fundamental to presenting a claim effectively.

So, assuming I convinced you that any claim involving a significant injury should be handled by your attorney, how do you select an attorney?

In family law word-of-mouth is a powerful source of work for a good lawyer. There are more divorce cases than personal injury cases, and boy do people talk about impending divorce and custody cases.

People are much more likely to go to a total stranger for a personal injury than for a divorce.

People are quieter about their personal injury claims. They do not want to sound like a whiner and they do not want people knowing about their financial woes.

Look at the Yellow Pages, and you will see the obvious. There is just much more money available for attorneys who advertise their prowess in personal injury matters, and clients tend to go to the lawyers they see most often.

If you pick your lawyer from television ads, you can select a tiger, a bulldog, lawyers who are experienced, lawyers who intimidate insurance adjustors, lawyers who demonize the insurance adjustors, lawyers who are cute, lawyers who are tough, or lawyers who have been designated "super" by a lawyers magazine, all of whom appear to be studiously sincere. Some are, some are not. How can you tell the difference?

My next blog will discuss my development as a personal injury and trial attorney, and some of my "milestones" and experiences. I hope it will convince you that I am "the real deal" for many types of cases and "a bulldog" when necessary.

What, a Week?!

2011-05-27T13:38:00.000-07:00

What a week to be a lawyer. Knocked down, picked up, cussed out, uplifted, back and forth. Plan for a pleasant morning? Deal with half dozen crises. Feel like giving up. Several new clients call in rapid succession.

Feeling down, and even out, friends call, classmates post blog articles, wife sends a thoughtful note, cousins write to boost my spirits. It was an emotional roller coaster without a doubt, but the sun, having hidden all day, just poked out. Hope it is a good omen.

Happy Memorial Day Week-end. Good thoughts for those who no longer are here.

Subrogation Claims

2011-05-21T09:03:00.000-07:00

Question: Why are subrogation claims important? They sound so boring.

Answer: because the subrogated entity can reach into your pocket and recover a major part or ALL of your personal injury settlement. Ouch!

Think of subrogation meaning substitution and you get the picture. The innocent insurance provider stands in your shoes when collecting from the person who caused the collision.

I learned about subrogation claims from the medical services provider's point of view when I was a young Assistant Staff Judge Advocate, JAG, in the US Air Force. As the "hospital recovery officer", it was my job to monitor 30-60 cases at a time relative to our injured personnel or their families and assert the claims of the U. S. Government for reimbursement for medical services provided to our employees when the injured person collected from the party at fault, the tortfeasor.

When you or your family member is injured, if you selected the right coverage, you will be covered by something called med pay coverage. Med pay or medical payments, or family, coverage pays medical bills up front, regardless of who caused the injury. Although there may be a medical audit, med pay is supposed to pay 100% of your bills up to the limit of coverage.

Claimants with a good attorney can deal with audits by the lawyer's quickly writing the doctor for confirmation of the need for coverage and the billing code. The only problem is most policies have too little med pay. (I will write another article on coverages soon; in the meantime, see my blog post of March 29, 2010.)

My clients are often resentful of having to file a claim against their own coverage when the other party was at fault. The simple fact is the liability (other guy's) insurance company will not pay part of a claim. It wants you to sign a complete release from liability. This leaves the injured party struggling to survive. The insurance company knows this and wants you to panic and take whatever is offered. So far, I have not heard of a policy increase because of the filing of a med pay claim.

If there is no med pay, you need to look to your own medical insurance coverage. If you have a State Medicaid Medical Card, there may be resistance by the provider to accept it. The provider wants to wait to be paid from the tortfeasor's coverage. Since payment is being delayed until settlement, your lawyer can quickly get the provider to accept your insurance. If not, he will help you find a new provider.

When it is time to settle, your attorney really has to get to work, making sure every bill has been submitted for payment, every subrogation claim has been determined, the representative of the subrogated party has been identified, and that they know when mediation is scheduled. It is critical that you be able to reach that representative when the settlement is imminent. The willingness of the "subragor" to take a compromise amount could determine whether you can afford to settle.

There are some real pitfalls and risks. Workers Compensation and E.R.I.S.A. Insurance plans have some very tough subrogation rules, and then there is the dreaded "Medicare Set-asides" which may not be as big a deal as we thought.

The bottom line is that if you have a serious injury caused by someone who has the means to reimburse you, you MUST have a competent, aggressive, and experienced advocate.

Your experience will be much less stressful and probably much more profitable than going it alone or hiring someone because of your impression on the t.v. ad.

Time for a Change of Pace; Personal Injury and Insurance Law

2011-05-21T09:01:00.000-07:00

In reviewing the table of contents of the book I created from the first 15 months of my blog, I note a skewing towards my family law and legal technology ideas and away from a primary focus of my practice and life. Time for me to write a series of articles on my experience with personal injury and insurance claims.

Representing Yourself; Sometimes It's OK, Right? And De Facto Parenting Plans.

2011-05-14T16:38:00.001-07:00

I mean no offense when I say that on my worst day I can represent you better than you can yourself. Applying common sense will not work when there are several statutes and a bunch of reported WV Supreme Court of Appeals reported cases governing the outcome of your case. And how do you negotiate a settlement with someome you just cannot talk to? Your, "I just want to spend more time with my child!", will not work with what will appear to you to be an unfeeling judge. I have my differences with judges. Just read my Feb, 1 and April 5, 2011 blogs posts if you doubt it.But getting angry with a judge for not modifying your parenting plan to give you more time with your child is like getting mad at the ump for allowing you only 3 strikes, and the pitcher 4 balls. You need to know the governing rules, The Family Court Rules, Rules of Evidence, Discovery Statutes, Appellate Rules, Relocation Statute, Modification Statute, Adoption Statute, Contempt Statutes, Emergency Ex Parte Relief Statute, Alimony Statutes, and Domestic Violence Statutes are a few you may need. But, this Saturday morning I met a very pleasant fellow who sought and obtained primary custody of his own children, and he did it without a lawyer. I stopped in a local business on the way home from work and he waited on me. I know his boss well, and he was telling me how he likes his work and how he is "treated like family " by his boss and boss's wife. He explained that he used to work away and seemed hardly ever to see his family. Now he sees them every day. I told him what I do for a living and observed that a lot of fellows who "work away" get bit by what is called "The Caretaking Functions Statute". The Court is required, when it has fit parents, to look back for two years prior to the date of separation and to try to apportion the children's time with each parent in a similar proportion to what they did when they were an intact couple. The fellow working 60 hour weeks, who is gone up to two weeks before being home for a few days, and the United States active duty service member who goes overseas, are at a great disadvantage and can usually expect no more than every other week-end of regular visitation. He responded that he is that guy, but he had taken his ex wife back to court for a modification and obtained a transfer of custody of his children. He was justifiably happy and proud. "Yep; I had to file 11 times, but I finally convinced the court to give me custody!" He explained that he had argued with the court each time, but his petitions were summarily dismissed each time. Finally, he tendered receipts for 24 weeks of day care and asked the court, "Why would I pay these, when you didn't order me to, if the children weren't living with me?" His ex-wife had 18 witnesses with her, but the judge finally bought his story and ordered the transfer. I sincerely congratulated him. He is obviously a nice young father, hard working, and feeding his family on a not so big hourly wage. But, I couldn't help point out that if he had grounds for a modification when he first started, he had filed 10 lawsuits in vain, when by hiring me he might only have needed one. While the "I just want more time with my child." is a dead end, the court will grant a modification of the parenting plan IF you properly allege grounds for relief. That's important! You can't win if your allegations do not entitle you to relief. And, if you file your own case, you will NOT know that the WV Supreme Court of Appeals recently overturned this family court judge for refusing to heed the wishes of a 10 year old boy. That is IMPORTANT information. The De Facto Parenting Plan statute is so simple. If you follow a different plan than the court ordered one continuously for six months, voluntarily by each parent, just petition to approve the de facto plan. If you prove your allegations by a preponderance of evidence, you should win. "Preponderance" means slightly more evidence in support of your case than is presented against it. In one case, the child had been with my client for four months, going to school for an entire semester from Dad's house. SO, I instructed Dad to be friendly, helpful, and non-confrontational and to call in six weeks. When he called to advise she had allowed the child to start the fall semester from Dad's house, we filed our petition. It was a "done deal". The teachers knew him. He had his receipts, and minor defects in his housing had been fixed up. Mom, faced with those facts, settled for a fair visitation plan and "a deal" on her child support obligation. How much work did my young father lose in going to court 11 times? How much grief did he experience? How much did his children suffer during the 2-3 years of litigation? I suspect that if he spent the $1500-$3000 it would have taken to pay a good lawyer, he would have been much better off. But, I am a lawyer and am hardly unbiased. Since talking to a lawyer is inexpensive (I will speak to you 15-20 minutes by phone for free.), what do you have to lose to find out your options? My young friend might have saved 10 filing fees ($135 each!) And, rather than "rolling the dice" with the court 11 times, in most instances cases settle before trial.

Disingenuous Lawyers

2011-04-27T14:13:00.000-07:00

Merriam Webster Online Dictionary defines:

dis•in•gen•u•ous, as:

adj \ˌdis-in-ˈjen-yə-wəs, -yü-əs-\

: lacking in candor; also : giving a false appearance of simple FRANKNESS : CALCULATING

I like the word "disingenuous". When I use it, I mean exactly what I say. I use it when another person, often a colleague, is saying one thing but meaning something much different. It is so much more civilized than "liar", but it is not morally different. (See my related article "Short-sighted Lawyers", Sat., July 31, 2010.)

Let me give one simple example. We have something in civil litigation, including Family Court, called "the rules of discovery". They can be questions under oath, called interrogatories, requests for admission, request to inspect or copy something, or even be a deposition taken in front of a court reporter. Depositions are often video'd.

In family and circuit court the parties are mandated to disclose witnesses and exhibits by a certain deadline, but discovery usually must be answered within 20 days. I like to fire out discovery requests quickly, so I can know what the other side knows as early as possible and follow up as necessary
.
The Court expects us to file and answer discovery requests timely because we are supposed to complete discovery BEFORE the final deadline for disclosing witnesses and exhibits. And, we are expected to be prepared for mediation and various hearings. That means each side needs information from the other.

I also refer you to my May 4th blog article, "Something Constructive, How to Organize Your Case." Not every lawyer follows this format which I "borrowed" from the Casesoft company, now owned by Lexis/Nexis, but most of us should be gathering information from the client as soon as we meet them. That means we know of potential witness and exhibits as soon as we meet our clients!

Therefore, I believe it is DISINGENUOUS for a lawyer to prepare for a client answers to interrogatories served on her client requesting names of potential witnesses an exhibits that say, in effect, "I will not tell you of even one person I know of who knows anything about this case or list one document even if I know it is a key piece of evidence."

What they actually say is, "The case is still being investigated and potential witnesses and exhibits have not yet been identified but will be identified by the Court Ordered disclosure date."

I say, "Tell me what you have now!" And, I insist my client answer the questions propounded unless they ask for confidential or privileged information. It is "the rule", and it helps me be better prepared.

The disingenuous part, of course, is that unless the lawyer is as incompetent as she is seedy, she already knows most of her potential witnesses and exhibits and is not telling the truth!

A variant of this behavior is the person who refuses to call his bank, insurance company, personnel officer, or Social Security Office to get information readily available, fills out an incomplete financial affidavit, or simply refuses to answer because the question is "unduly burdensome".

Some questions are unduly burdensome such as requests requiring hundreds or thousands of photocopies. Most questions in a simple divorce are simply NOT unduly burdensome. Lawyers who fail to require their clients to gather this information are doing them a disservice. They ultimately cost them more money and they assure the parties do not have the information they need when they go to mediation.

Mediation may be months before the scheduled trial,, and failing to gather and disclose evidence by then may cost the client thousands of dollars in unnecessary litigation costs.

Yes, there are cases where later disclosure of a known witness can give the person an advantage. The disingenuous lawyer will argue that hiding the ball, delay tactics, and refusing to disclose obtainable information are all "part of the game". For some they are. But, remember, hire a crooked lawyer, and she/he will also be disingenuous with you.

Especially in Family Court, honesty, candor, promptness, and diligence produce the best results. They lay a foundation for the majority of divorcing parties to be able to work together for the sake of their chidlren. Cheating and lying create a terrible foundation; also, in Circuit Court in civil cases. Sometimes in criminal cases it seems that EVERYONE is hiding the ball. I do not go there much any more. Being a defense lawyer is a delicate balancing act, and being a prosecutor is a big responsibility with its own temptations to "hide the ball". Remember the Duke lacrosse team!

There will always be people who lie and "hide the ball", but I do not think the best members of our profession do.

So, what is the fuss? It is that lawyers have a bad enough reputation already. It is behavior like this that feeds the stereotype that lawyers will do and say whatever they can to promote their clients' interests.

A lawyer who refuses to make a timely disclosure, choosing one deadline over the other, who hides the ball and provides incomplete answers is "gaming the system", just like the pitcher who "juices the ball", the soccer player who grabs the other players shirt, or the player who takes steroids.

Each time a lawyer does these things to me, I shall be sending them a copy of this article. And, I will not forget who they are.

2011 Annual Meeting of WV State Bar

2011-04-18T12:13:00.000-07:00

Dear Colleagues; Re: WV State Bar Annual Meeting
It will be hard to make this note of enough general interest to post to my blog, or short enough for more than 10% of you to read it, but here goes:

1. I have not received notice of any complaints back from judges or colleagues in response to my "Letter to the Judges" which I sent out a couple weeks ago to 15 family court judges and 20 family law practitioners. I attach that letter, now a blog article, and my preceding blog article. They will be of interest more to family law lawyers. I feel strongly that we can do better in administering justice to family court litigants.

2. No judges have responded, but a few colleagues have. My favorite written response to my concern I would be out of favor with "the powers that be":

Mirrors are often uncomfortable, but they are always accurate.
I don't foresee any sanctions in your future.
Maybe fewer Christmas cards.

3. My next two blog articles will be the interrelationship of family law litigation and mental health professionals, and succeeding in negotiations when you are holding very few trump cards.

4. Tonight I shall write about the WV State Bar Annual Meeting, Friday April 15-Sat April 16, 2011:

5. Peter Kalis, Global Managing Partner of K & L Gates, NYC, "Law Practice in the 21st Century: The More Things Change…." ; a Warwood (Wheeling) boy who made good. He is managing partney of the 7th largest law firm in U.S., 12th in the world, with annual billings of a BILLION dollars. Some of our colleagues felt this talk about the evolution of "the law industry" had no relevance to WV. I respectfully disagree. WV is trying to survive and thrive in the global economy. The disappearance of national boundaries and rapid changes in the practice of law, for cities as nearby as Pittsburgh are very interesting.

6. Mr. Kalis tried to refute assertions (That I first found in a book titled "The End of Lawyers", Richard Susskind, Oxford Univ. Press) that legal services are going to become mere commodities and that legal training should be more like "vocational He stood up for "old fashioned" standards based on a long history of lawyering. Remember, Cicero was a lawyer.

Cicero - Wikipedia, the free encyclopedia Marcus Tullius Cicero was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family ...

7. Anyone who believes that the pressures of technology and globalization will not change lawyering everywhere, is whistling in the dark.

8. Barry Richard, Greenburg and Praurig, P.A., Tallahassee Fla. had a marvelous presentation titled, "Security, Pseudo-Patriotism, and the Erosion of American Liberties." It was a reminder that our country has frequently fallen short of our ideals of freedom and liberty, in particular the Patriot Act.

9. Mr. Richards played the obligatory video clips of George W. Bush answering the questions during the Ashcroft controversy and of the internment of the Japanese at Pearl Harber. My favorite part of his talk was the quotation of Alexander Hamilton from the The Federalist Papers predicting that a country based on freedom, when challenged from the outside, will have a strong tendency to squelch the rights of the individual in order to protect itself.

10. What I decided from Barry's one sided presentation is that it is now time to commence the mature discussion of the balance of freedom (of speech, the right to bear arms, the right to have a jury, and many other rights) and our national security. The zealots on each side of this question ignore the obvious truths in the other sides' positions.

11. F. Paul Bland, Jr.; Chaves & Gertier, Wash, D.C.; "The Evolving Law of Challenges to Mandatory Arbitration Clauses". Catchy huh? The truth is this guy is witty, passionate, highly intelligent, a family man, a friend of Harry Deitzer (which is probably how we got him), and eloquent in explaining how to win cases by starting by crushing the smallest "nested Russian egg" and working your way up. In other words, read these arbitration clauses and attack the worst of them

12. Mr. Bland explained to his 8 year old son that he was like the big cat who waited for the herd to go by and took down the weakest, a form of Darwinism. The weakest clauses are the most outragious and unfair mandatory arbitration clauses, the ones that violate contract law, deprive the consumer of his basic rights, and reserve to the company the right to make retroactice changes to the contract. In that sense, he explained to his son he is a predator. His son didn't quite understand, but of course, in a real sense he is. Many trial attorneys are. This practical approach to analyzing and attacking mandatory arbitration clauses made great sense.

13.Former Congressman Allan Mollohan was our luncheon speaker. I was prepared for the "we all need to do pro bono work" speech, and he certainly made the point that things are bleak for low income litigants in WV, meager interest from our IOLTA accounts and limitations in funding. Then something struck me during his talk: You cannot, by talking to a room of lawyers, most with plenty of grey in their hair who do not even practice the kind of law that would help most low income people, fix the problem of underfunded Legal Aid. Funding for all discretionary spending is in danger. Even WIIC is taking a hit, and PBS may lose all funding, as may Planned Parenthood. Not a great time to ask for more money for low income litigants.

14. So, I introduced myself to Allan Molohan, whose father played the key role in my acceptance into the U.S. Air Force JAG Corps, over 40 years ago. I asked if he learned how Great Brittain had managed to stop the horrible mortality rate of prisoners being transported in ships from England to Australia. He confessed he did not. I explained that training would not work, exhortations would not work, and that the captains were allowed to keep any food and stores left over from the voyage. The (not so) obvious solution was that they began paying the Captains only for the prisoners who could walk off the ships at the end of the voyage. The problem was promptly solved.

15. As my wife reminds me when I get frustrated, people are motivated by self interest. So, I urged him, and Anita Casey, our worthy executive director to figure out some ways to let the young, hungry, (and not so young) lawyers of WV can be motivated by being able to MAKE SOME MONEY at family law, which includes domestic violence, divorce, custody fights, child support, modifications, and the like.

16. I will write a blog article on this subject, but if mediation were mandatory in all cases, had to cover all issues, used only lawyer mediators, let lawyers charge $500-$1000 to be consultants for divorcing people, and other innovations, with proper training and support, lawyers could do divorces for $500-$2500 in the majority of cases. Having gushed all over him, I wandered away, leaving a puzzled former congressman to try to figure out what the hell had just happened.

17.The next two sessions were, of course, my favorite; really nerdy stuff, but the absolute bedrock of practicing law in the 21st century. We can pretend that globalization does not affect Beckley, Buckhannon, or Wheeling, althoug, of course, it does, but we cannot pretend that we don't have to cut down on the paper, increase the speed and accuracy of our communication, and steamline our ability to assemble documents.

18. These subjects were covered by two presentations of Barron Henley of HMU Consulting, Columbus Ohio. I have listened to something like a two dozen hours of Barron and his partners' presentations. I have purchased the ScanSnap scanners he recommends, had his associate Brian Cluxton to my office to evaluate my systems, hired HMU to host my Wondows Outlook, had them put together the specs of my new Dell Computer, and become something close to a "disciple" of HMU's teachings.

19, Barron's first hour, "Tools and Techniques for Negotiating and Revising Electronic Documents" covered the ins and outs of exchanging documents in a collaborative way, making corrections, tracking the changes, and comparing those changes to earlier documents. He mentioned the word "meta-data" and several of the grey heads in the back of the room slumped over. Meta-data, meta-data, meta-data; see how it makes you want to snooze. If you think of it as a way to avoid a month of mailing an faxing, a way of getting documents finished, accurately, signed by the clients, and signed and approved by the Court, I think you will perk right up; that's right, because it means MONEY to the lawyers and savings to the client.

A few tips;

a. You can send a document that the other side can change but ONLY if you approve it.

b. You can send a colleague a huge document by asking him if he wants it, and if he says yes, letting him download it instead of exceeding the limits of your e-mail server.

c. You can attach balloon comments, color coded typewritten tracked changes, even audio notes to your staff, in order to facilitate editing.

d. I have heard Barron's second hour, Ten Ways to Make YourPractice More Enjoyable, 3-4 times now and still learned many new things.

e. You can save a document to "the cloud" using DropBox and have it on a folder on ALL of your computers, i pads, etc.

f. You can save hundreds, or thousands of dollars by buying the right equipment, software, from the right companies; the one page Barron has of his purchasing and review services is worth the price of the seminar.

20. Barron knows a secret; none of us has a clue as to what makes Microsoft Word work, or how to make it more efficient; he was so convincing, I pulled out his Word Manual from the 2009 State Bar Meeting Seminar and am re-reading. Train your staff on Word 2007 or 2010 and you will never regret it.

21.The written material mentioned HotDocs; Barron is a wizard at this document assembly program; it is powerful. I have NOT been able to master it, which means everything to me, so I add my plug, yet again for Pathagoras. This program uses Word documents, no proprietary formats; just simple questionnaires and dropdown lists. I offer to any of you several dozen "Pathagorized " forms . All I ask is you send some of yours back when you make them.

22. Pathagoras is available as a free 90 day downlaod at www.Pathagoras.com. I dare you to try it.

23. If you prefer the better known HotDocs, Barron is the guy who knows how to make it sing. My guess is, if there are 20 lawyers or more, Hotdocs; 19 or less, Pathagoras. This is my sense. I have no idea if Barron, Roy Lazris of Pathagoras, or Lexis/Nexis agrees with me.

24. Barron strongly recommends a second, and even third monitor. I do too. And that monitor should be able to move from horizontal to vertical. It is SOOO easy to read a docuent on a 22-27" monitor standing straight up. You can see the whole page.

25. Barron recommended DropBox, and I do too. I took the 300 page seminar manual, copied it from my DVD drive to my Dropbox, and downloaded the PDF file to my I Pad, where I could scroll through the pages, following the speakers, and move ahead when I got bored. It was so much fun, I FORGOT TO FALL ASLEEP!

26. By far the bravest speaker of the day was Joseph "Jay" H. Aughtman of Fischer, Goldasich, and Aughtman, LLC of Birmingham, Ala. "Rule 23 & CAFA Update". I say brave because I thought Rule 23 was a disclosure rule and CAFA as EPA Rule restrictions; nope, he was talking about class actions!

27. When he asked how many of our members practiced in this area, two or three hands fluttered. We were approaching the cocktail hour. When he solicited questions, there were none. I was checking my Facebook. So, this guy cut to the quick, told us what we needed to know, was obviously poised and smart, and got off the stage, having done his solemn duty, even sending us greetings from his state association. What I learned was Alabama is not the place to file a class action, the new law is not that impossible, and it really narrows the focus which increases predictability.

28,. I admit, when they changed Christina Steinbeckter, of Fastcase, Washington DC's topic to "boolian logic" I was "out of there" for , a martini, and raw oysters, and Mahi Mahi at the Tidewater, but it was an uplifting day.

29. Once I heard her talk the next day, I was VERY sad I missed her first talk. There is a lot of power in boolian logic, and when I had trouble following the basis course, I knew I had missed out by not learning the advanced. Fortunately Fastcase has frequent webinars available, for every member of the WV Bar! An impressive feature of Fastcase is its graphical relevance and timeline chart. The cases most likely to be on point jump out by the size and position of the circle representing that case.

30. Saturday Morning started very strong, with Thomas J. Hurney, Jackson Kelly, PLLC, "Telling the Story in The Closing Argument". Yes, as a long time member of WVTLA/WVAJ I have heard much of this before, but the 20% I had not heard was worth the price of admission. And, recent, important, case law needs to be reviewed by all of us. Excellent reminder that if you are going to trash the other side's expert or lawyer, you had BETTER have torn them up well in your cross examination, and your assertions had better be supported by identifiable evidence. If not, you are likely to lose on appeal. For me, this presentation was a "sleeper" which made me glad I got up on time.

31. William Hinerman, Unit Chief IC3, Federal Bureau of Investigation, Fairmont, WV, gave a fascinating and enlightening summary of his work monitoring nationally and world wide internet crime and scams. I knew of much of this in general, but founds the specifics to be very troubling; yet another part of the 40% of bad that comes with the 60% good coming out of the Internet Revolution.

32. The only downer to this seminar was, where are the young and younger lawyers, and why is attendance around one per cent (1%) of the 8000 WV lawyers???

33. Full disclosure; for 20+ years, I missed the majority of the annual meetings. The Trial Lawyers met in Feb and June, but the State Bar met at THE GREEBRIAR (which I could NOT afford) during our youth soccer travelling season. Buckhannon lawyer, Bob Wallace, was a State Bar President several years ago, but that is not likely for Buckhannon in the foreseeable future.

34. I fear that something is now missing from the body of lawyers in WV, not individuals many of whom are doing marvelous things for clients, family and community, it is a shared sense of professional responsibility, to the profession, not just ourselves, or even our clients. We seem to be lacking a sense of responsibility to the profession itself, to our need to be current in our learning, but also our need to connect with one another and share ideas and values.

35. The grey heads moved out of the room, heads shaking with puzzlement at Barron's tips and teachings. The younger lawyers, and I not so young, were saying WOW!

I learned a great deal last week-end and am glad to have reproduced some of it here.

Dear Honorable Judges (Some Thoughts On Enhancing Justice in WV Family Courts)

2011-04-05T15:25:00.000-07:00

Dear Honorable Judges;

Thank you for your insightful presentation at the National Business Institute seminar, "What Family Court Judges Want You to Know", on April 1, 2011. I found myself comparing your approaches to those of the Family Court Judges in North Central WV, Upshur County and surrounding counties. I received interesting ideas that can benefit us all.

As you each know, when I got your seminar brochure, I had just posted an article to my blog, www.burtonhunteresq.blogspot.com, in which I grappled with what I perceive to be a lack of communication and rapport between lawyers and judges; (Or, at least between THIS lawyer and judges.).

I sent a copy to each of you and sincerely appreciate your reading it and addressing some of my concerns. I am sending this letter and that article to my local judges, and some of my colleagues who practice here. I wish we all could have attended your seminar.

As I listened to you, I discovered some commonalities. The family court judges I know are uniformly compassionate, committed to providing a just result, intelligent, and usually witty. I sense various levels of fatigue, somewhat related to years of service and workload. I don't think I know a judge who has worked in family law longer than my 38 years. I am not tired yet, just frustrated.

All of us are dealing with the fragmentation of our society. You mentioned the disturbing trend of more young men/fathers who have never held down a steady job, and of young women/mothers who have become dependent on drugs.

And, the "remedy of choice" seems to be the domestic violence statute. "If the only tool you have is a hammer, every problem looks like a nail."

On Friday, I hesitated to ask your percentage of self-represented parties, but I am guessing it is at least 70%.

I have criticized our WV Supreme Court of Appeals for what I perceive to be "caving in" to this trend of self-representation by helping create the appearance that "do it yourself forms" can allow self-represented parties to navigate the family court system on their own. That appearance is false.

Our profession can do a better job helping WV citizens protect their families. The "ghostwriting" memo is a perfect example of the prevailing attitude of "the powers that be". Lawyers and potential clients need help, not artificial obstructions. Before lawyers link their name to an unrepresented party's case, most will opt to do nothing for them! And, why should Legal Aid be permitted and encouraged to do so, but the private bar penalized?

I perceive that clerks and court representatives are not stressing to parties the dire need that they be represented by competent counsel.

I also perceive that no one provides these folks copies of the Family Court Rules, Overlap Rules, Spousal Support Statutes, Relocation Statute, Caretaking Functions Statute, or any of the enumerable rules and laws that govern their cases. We expect very little of self-represented parties and are seldom disappointed.

I realize that each family court judge relies on tools that work for him or her. These include:

a. Wise bailiffs who can do a lot more than keep order;

b. Providing lawyers copies of cd's of hearings, "while you wait";

c. A case coordinator who can provide "poor man's mediation" of up to an hour per case;

d. Conferences between the Court and counsel (Not my favorite, since any client getting bad news smells a conspiracy);

e. Hefty assessment of fines, and judicious use of incarceration for chronic acts of contempt;

f. Robust awards of attorney fees in appropriate cases;

g. Strong focus on the eight exceptions to the Caretaking Functions Statute;

h. Frequent use of urine tests, with stronger responses to meth and other hard drugs than to positive tests for marijuana; this was tempered by what I considered a wise observation that smoking pot is not only illegal, but it requires the serious crime of transfer of marijuana, with the inherent risks of violence to the user and his children, and criminal prosecution.

i. Your use of mediation is MUCH less than what I am used to. Here, parties are hardly ever screened out of mediation, and represented parties are almost always accompanied by their attorneys. Most good family law lawyers have attended mediation training and know how to prepare for and participate in mediation.

j. In our part of the state, there is a strong corps/core of exceptional mediators. A combination of represented parties and any of these mediators almost always results in a negotiated settlement.

k. One of you suggested there be more professionalism by lawyers. I agree, but I was surprised to learn from a colleague that you generally do not mandate a strict litigation schedule, issue scheduling orders, penalize discovery violations, or require a timely exchange of exhibits and witnesses, with a summary of expected testimony and proposed equitable distribution spreadsheet;

l. I am used to family courts' requiring all of these things. I cannot see how your attorneys can avoid "trial by ambush". If they do not have this information well in advance of trial, how can they mediate successfully "in the dark? Sorry, I should have asked you on Friday.

m. I heard much more about "children's issues" during your seminar than I am used to. Issues such as apportionment of debt, award of spousal support, and disposition of cars and houses, have direct impact on the children. I would never think of going to mediation without a plan to mediate and solve such issues. They are "children's issues".

n. I realize family courts are statutory, and I notice family court judges can have an inferiority complex or visible resentment about that fact, but I cannot agree with a judge who would not require counsel to take all issues to mediation and dare the attorney to take that issue up on appeal. What competent lawyer would appeal such a sound ruling?

o. I note that one or more of you actually trust the attorney to tell you if a case has a good chance of settlement through mediation. Many of my worst appearing cases have resulted in mediated settlements. I say send them, but leave it to the lawyers, parties, and the mediator as to what part will be "face to face".

p. On the other hand, I dislike the policy of certain local judges to compel me and my client to a "face to face" settlement meeting without a mediator, even when I put up a big fuss and ASSURE the court it is a bad idea. Not sure how your attorneys got so smart and how my 38 years count for so little, but I detest those mandatory face to face meetings more than words can say.

q. I need the mediator to provide the leverage I need, with my opponent, and with my client, to achieve a settlement. Without the mediator, I have to play "the bad guy". In one instance, I had to spend a great deal of time away from my client, who was afraid of the child's father. We achieved a settlement, but I got fired for "selling me out".

r. I note that at least one of you requires a psychological or psychiatric evaluation of a younger child before you will consider the presumption against their testimony to be rebutted. Since neither parent, at least at the temporary stage, should be able to take the child to a new doctor/counselor without consent of the other parent, I was not sure how this could be accomplished. If by written motion, it seems the child might be ready for college before the parties have their trial!

s. At last count, I have encountered a dozen fatalities in my practice, 8 suicides and 4 homicides. I am anxious to avoid repeating the experience.

t. I am convinced that there is a better way to process these cases. In in spite of good intentions, there is not enough innovation, not enough originality, and not enough communication, among judges, among counsel, and between judges and attorneys.

u. Most areas of our fine state have not yet developed the tradition of "full mediation" and many too many lawyers do not prepare their clients properly for mediation or attend mediation. Some even seem to enjoy picking apart or blowing up the mediated agreement afterward.

v. Some lawyers are not even available to the mediator or their client by phone during mediation, and some mediators "…..don't allow lawyers to come to my mediations!"

w. The author of that statement, at a recent annual conference, purported to be an attorney! What low regard she must have for her colleagues. Maybe she does not even know that some lawyers have worked hard to learn how to be a positive force in mediation.

x. A well prepared, well intentioned lawyer, in my opinion is "the mediator's friend:" and one of the most valuable resources she can have.

My conclusion is that I should appreciate our local family court judges more. Recent contact with the States of New York and Va. tells me that their citizens would consider our system to be "almost heaven".

Our local judges' requirements that we file our pretrial memos, adhere to tight scheduling orders, and mediate all issues, are sound rules, and I commend these rules to judges in all parts of our state, even if it takes a few years to develop a cadre of terrific mediators, and mediating lawyers.

Still, I learned much from your presentations and am glad I came.

Rigid application of "caretaking functions", while sometimes helpful and timesaving, has never seemed right to me. The best interests of the children should remain the "polar star" to guide us.

Using the talents most available to you, bailiffs, case coordinators, guardians ad litem (who can request drug screens), and conflict counselors, makes good sense.

Another tool, "The Overlap Rules" appears to me to be a dud. I have seen positive results from an overlap referral just once.

Punishment of parties who violate your orders, and of obstructive and incompetent counsel (which is normal for you) just is not done in our jurisdictions. My complaints against lawyers who don't do their orders, or habitually show up late, fall on deaf ears. Excellence is not rewarded, and mediocrity is not penalized.

Contrary to your comments, I have been told by more than one of our local judges that they have no power to incarcerate for contempt. I have never seen a family court incarcerate or fine, but may regret that I presented these ideas as suggestions here.

Thank you again for your stimulating discussion. I will keep posting my thoughts to my blog and writing to colleagues, with the hope it will stimulate discussion, innovation, change, and communication.

I mean no disrespect in voicing these opinions, and I have renewed appreciation for the sincerity with which each of you is pursuing your quest that timely justice prevail in the State of WV.

Yours very truly,

J. Burton Hunter III

Step-Parents and Significant Others, and Well Meaning Idiots

2011-03-29T12:36:00.000-07:00

Divorces, and mediations, are often influenced by people who are not present during mediation. The behavior of step-parents, significant others, family members, and friends can profoundly impact the welfare of children.

These folks are often afflicted with a form of tribal insanity that adds to the chaos and dooms the negotiations to failure even when the parties emerge with an agreement. At other times, the only way the party can have a successful agreement is to "whip these people into shape".

This is a subject that deserves a book of its own, and has one in the form of "The Happy Step Mothers" by Rachel Katz. Her website is www.stepsforstepmothers.com. I listened to an interview of the author on National Public Radio. She and her callers made good sense. I haven't read that book yet, or visited her site, so the views herein are solely mine.

I am no psychologist or counselor, but I play one on TV…. I mean, I work with lots of mental health professionals and have formed an idea of what makes the good ones good. That is a subject for future posts. Below are some of my practical observations of this aspect of "the human comedy", and my suggestions of how improved behavior of the adults can help the children.

Let's start with the "significant other", who often becomes a step-parent. We all detest the classic predators/scavengers who are happy to become involved with a married person in an intact relationship. They use sexual attraction, or the loneliness or unhappiness of the married person, to engage in an affair that destroys the marriage and causes immense pain.

Truth is, such marriages are often in trouble already, but the paramour, who I call "the bimbo", commits a moral wrong that should earn him/her an especially warm spot in hell. These people seek out short term sexual pleasure, or financial security, to steal someone else's spouse, and "damn the consequences".

The "kissin cousin" to the overt paramour is the opportunist who comes along at the very end of a broken marriage, or arrives, for a sexual fling, shortly after the parties separate. These opportunists sometimes date the spouse who has been dumped or betrayed.

Of course, the betrayed spouse should say, "The children need me now, and I need to focus on them, my emotional health, and my sources of income". Instead, she often says to herself, "That bastard deserted me; I deserve some fun now too!" Now the children have two parents acting irresponsibly and risking intervention by the WVDHHR Department of Child Protective Services!

These opportunists and retaliators also commit wrongs, albeit more morally ambivalent than the spouse stealers.

The paramour's decision to have a short term, casual, sexual relationship with a vulnerable, or needy, married parent draws that parent away from the very things he or she should be focusing on.

These things include:

a. Maintaining the delicate balance of a budget that must now support separate households;

b. Planning and negotiating the dissolution of the marital partnership, and;

c. Nurturing the shell shocked, traumatized, children.

The people involved in extra-marital affairs engage in powerful rationalizations to justify unjustifiable behavior. A key element is often the demonization of the other spouse. "That bitch" drove him to his immoral behavior. "That abusive bastard deserved to be abandoned!", and," All I did was be there when she needed me."

These excuses often have a grain of truth, but the children are almost always caught in the crossfire.

Say what you will about "Dr. Laura" (Schlesinger), but she is "dead on right" the way she deals with people who engage in this irresponsible behavior. It is exactly the WRONG behavior for those people at that time. Very few people have the emotional and physical energy to start a new, meaningful, and potentially long term relationship when their world is falling down around them.

My advice to a client in such a situation is that having sex with someone new, regardless of the short term pleasures, enrages and hurts the other parent of your children. This happens at the very time when the client would benefit by their remaining calm and rational. I have seen such behavior lead to suicide and homicide.

I admit, sometimes it helps me get paid when the new "sugar daddy" or "sugar momma" arrives with "deep pockets. It helps my client pay me and meet basic expenses. They get what they want and pay for it.

Sadly, "the sugar person" may be someone who has loved the litigant for years, hoping they would become available. In those cases, I suspect that my client is using that other person for her/his own ends. I sometimes issue gentle warnings, but they go unheeded.

One valuable lesson taught at the court mandated "parenting education class" is that you should not introduce your children to a "significant other" during the marriage or shortly after the breakup. How could there be more sensible advice? Children usually love each parent. Their lives are being turned upside down. They do not need more confusion and uncertainty.

The children are feeling rejected, and often Mommy or Daddy is telling them that the other parent has "abandoned us" and "does not love us any more".

More often than not, the offending parent reinforces those accusations by introducing the children to the person with whom he is replacing Mommy or Daddy.

These meetings with the significant other are often in the park, a restaurant, or during a picnic. The stunned children are expected to meet the "new mommy or daddy", form a bond, play with that person's children, and somehow accept it all.

When they get home, they must then endure the interrogation, and overhear the accusations of the offended parent, to friends, or family, or them.

My best advice is do not become involved in such relationships, but, if you do, please do not try to pull your children into that relationship too soon. If it becomes a stable relationship, think long and hard how to bring the children into it.

And, do not sneak around your estranged spouse. If she is "going to freak", then it is clearly too early.

In rare instances, but more likely if you have permitted a discrete amount of time to pass, you can introduce your spouse to this person and involve your spouse, and even a counselor, in a plan that puts the children first.

Do not be like the husband who recently attended parenting class with my client and announced to the whole class, "I will expose my children to anyone I damn well please!" He is lucky it is not a graded class!

I also suggest to my clients that they take stock of their whole life. If there are health or addiction issues, obesity, or depression, or severe financial stressors, tackle those problems as best you can. Do NOT overlay these problems with the challenge of a new relationship.

Dr. Laura speaks sternly to the woman who has never developed a "whole personality", but depended on "her man" to define her. She suggests, and I agree, that woman must learn to become an independent, assertive, mature, person with goals and passions of her own. "Settling" for the next warm body that comes along will not lead to happiness.

To my male clients, I add to this that a man must assess why he was not able to have a happy wife. Sure, it might have been "her fault", but usually there is a lot more to it.

The curse of "control" is usually present. A controlling person has great difficulty learning how to stop this behavior.

I have written blog articles, "Being a Good Husband", June 21, 2010, and "How to Be a Good Wife" July 6, 2010, based on my own 42 year marriage, and 3000 or so family law cases. The blessings of having a superlative spouse, or being one, are incalculable. There is a ripple effect, to your children, your family and in laws, and those who follow.

There is also a ripple effect to parties and their families, who involve the children, introduce them to the significant other too soon, neglect the children, fail to communicate, and focus on themselves instead of the children.

I SUGGEST THAT YOU commit to putting the children first, in the highest and most mature sense. Learn how to be a good parent, especially if you have been lacking before. DO NOT attempt to control or punish the other parent. And stop the profane and obscene language! Learn this, and you may not even need a divorce!

DO NOT BE AFRAID to wait months, or years, before you are ready to integrate another adult into a long term sexually relationship. Read books, check out the Web, and take it a day at a time. You will be glad you did.

Your life, and your children's, will be better for it.

Social Media Tips for the Family Law Client

2011-03-13T17:23:00.000-07:00

1. If you want a good result in your divorce, YOU MUST consider the Facebook/Social Media component. That is because your case can be grievously damaged, or helped, by the content of social media postings. Do not hand the other side ammunition to damage your reputation or challenge your fitness as a parent, or overlook his/her gifts to us. No, I have not forgotten that our "opponent" is your child's parent. We hope to negotiate a fair settlement, but we KEEP OUR GUARD UP!

2. The decision of how you conduct yourself in e-mail, texting, Facebook, Twitter, and the rest, must have one overriding principle: People who conduct themselves ethically, morally, and responsibly have an edge over those who do not.

3. Remember that your postings are not confidential. Just as your friends can betray you and gossip about you, your “Facebook Friends” may not be friends at all. If you are in litigation, or may be soon, assume that your Facebook, MySpace, Link’d In, and Twitter postings are being accessed by someone whose interests are different than yours.

4. If your spouse's lawyer can demonstrate your bad behavior, bad companions, or bad values, he/she will use this evidence to oppose what you want.

5. Assume that your search history is available to others; so, porn, especially child porn, drug abuse, casual alcohol abuse, your tattooed companion, that “great” karaoke party on the webcam, and the rest, can become evidence at trial. Some of the above are also crimes, and law enforcement is monitoring the WEB too.

6. Even when it is not used at trial, negative stuff on the computer can enrage the other side, cause them to believe you won't protect the children, and poison the atmosphere at mediation .

7. Some of my colleagues have suggested we “require” that clients not use social media. To me, that is akin to telling you not to use your phone or fax machine. And, it is as hopeless as telling my separated clients not to date. (I strongly URGE you not to date or expose children traumatized by a separation to a new "significant other. At least wait until you see the mandatory parenting class for divorcing parents.)

8. Your Friends may not tell you, but real friends will NOT be impressed with your bashing of your spouse, ranting, or whining. You do so at your peril. And, you must meet with family and friends and insist that they not play "Hatfields and McCoys".

9. But, your “social network”, personal and digital, can help pull you through this difficult time. I say, just act responsibly.

10. My best advice? Put your children first, do not involve them in the fight, no drugs, moderate your alcohol use, discourage friends and family from acting up, and be very, very, very careful of what you send, receive, browse, print, post, and view ON THAT PHONE AND COMPUTER!!

The Relatively Small Role of Fault in Determining Alimony, The WV Statute

2011-03-06T06:47:00.000-08:00

WV Code, Section 48-8-104 Effect of fault or misconduct on award of spousal support

In determining whether spousal support is to be awarded, or in determining the amount of spousal support, if any, to be awarded, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.

(Note: February 10, 2012; J.B.H. I argued a case before the WV Supreme Court this fall, and won it by a 3-2 vote. I was asked by Justice Workman why I did not consider repudiating my client's pre-nuptial agreement and asking for commensurate alimony for the husband's fault, an admitted affair. I explained that I found that family courts are not concerned much with fault.

She respectfully disagreed with me, referring me to a case she had authored. I left there feeling that in the right case, she and the Court would support a significant award of alimony. As I said, unless a client is prepared to go to the Supreme Court, I find that family courts apply no greater significance to fault than any other of the statutory factors, and less than the length of the marriage or health of the parties.)

Factors in Determining Alimony (Spousal Support), The WV Statute, Sec 48-6-301

2011-03-06T06:40:00.000-08:00

Section 48-6-301 Factors considered in awarding spousal support, child support or separate maintenance; (Note: Feb. 10, 2012. J.B.H. This is WVa's alimony statute.)

(a) In cases where the parties to an action commenced under the provisions of this article have not executed a separation agreement, or have executed an agreement which is incomplete or insufficient to resolve the outstanding issues between the parties, or where the court finds the separation agreement of the parties not to be fair and reasonable or clear and unambiguous, the court shall proceed to resolve the issues outstanding between the parties.

(b) The court shall consider the following factors in determining the amount of spousal support, child support or separate maintenance, if any, to be ordered under the provisions of parts 5 and 6, article five of this chapter, as a supplement to or in lieu of the separation agreement:

(1) The length of time the parties were married;

(2) The period of time during the marriage when the parties actually lived together as husband and wife;

(3) The present employment income and other recurring earnings of each party from any source;

(4) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;

(5) The distribution of marital property to be made under the terms of a separation agreement or by the court under the provisions of article seven of this chapter, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance: Provided, That for the purposes of determining a spouse's ability to pay spousal support, the court may not consider the income generated by property allocated to the payor spouse in connection with the division of marital property unless the court makes specific findings that a failure to consider income from the allocated property would result in substantial inequity;

(6) The ages and the physical, mental and emotional condition of each party;

(7) The educational qualifications of each party;

(8) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage;

(9) The standard of living established during the marriage;

(10) The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his or her income-earning abilities within a reasonable time by acquiring additional education or training;

(11) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;

(12) The anticipated expense of obtaining the education and training described in subdivision (10) above;

(13) The costs of educating minor children;

(14) The costs of providing health care for each of the parties and their minor children;

(15) The tax consequences to each party;

(16) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home;

(17) The financial need of each party;

(18) The legal obligations of each party to support himself or herself and to support any other person;

(19) Costs and care associated with a minor or adult child's physical or mental disabilities; and

(20) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance.

General Provisions Regarding Spousal Support, WV Statute

2011-03-06T06:37:00.000-08:00

Section 48-8-101 General provisions regarding spousal support

(a) An obligation that compels a person to pay spousal support may arise from the terms of a court order, an antenuptial agreement or a separation agreement. In an order or agreement, a provision that has the support of a spouse or former spouse as its sole purpose is to be regarded as an allowance for spousal support whether expressly designated as such or not, unless the provisions of this chapter specifically require the particular type of allowance to be treated as child support or a division of marital property. Spousal support may be paid as a lump sum or as periodic installments without affecting its character as spousal support.
(b) Spousal support is divided into four classes which are: (1) Permanent spousal support; (2) temporary spousal support, otherwise known as spousal support pendente lite; (3) rehabilitative spousal support; and (4) spousal support in gross.

(c) An award of spousal support cannot be ordered unless the parties are actually living separate and apart from each other.

Rehabilatative Spousal Support - The WV Statute

2011-03-06T06:34:00.000-08:00

Section 48-8-105 Rehabilitative spousal support

(a) The court may award rehabilitative spousal support for a limited period of time to allow the recipient spouse, through reasonable efforts, to become gainfully employed. When awarding rehabilitative spousal support, the court shall make specific findings of fact to explain the basis for the award, giving due consideration to the factors set forth in section 8-103 of this article. An award of rehabilitative spousal support is appropriate when the dependent spouse evidences a potential for self-support that could be developed through rehabilitation, training or academic study.
(b) The court may modify an award of rehabilitative spousal support if a substantial change in the circumstances under which rehabilitative spousal support was granted warrants terminating, extending or modifying the award or replacing it with an award of permanent spousal support. In determining whether a substantial change of circumstances exists which would warrant a modification of a rehabilitative spousal support award, the court may consider a reassessment of the dependent spouse's potential work skills and the availability of a relevant job market, the dependent spouse's age, health and skills, the dependent spouse's ability or inability to meet the terms of the rehabilitative plan and other relevant factors as provided for in section 8-103 of this article.

Alimony; The Particulars

2011-03-06T06:09:00.000-08:00

I posted an article about alimony, or spousal support, August 9, 2010.

You may recall that there are several forms of alimony:

a. Temporary spousal support, while the divorce is pending.

b. Rehabilitative spousal support, designed to allow a disadvantaged spouse to get back on his/her feet. This often covers a period for that spouse to obtain a two year or four year degree or recertification for a previous employment.

c. Permanent Alimony. See the Molnar case in my August 9 post.

d. Variations include a lump sum payment or trade for a share of marital property in excess of 50% and specific payments for a fixed period with a stipulation the Court does not have jurisdiction to modify it in amount or time.

e. The order needs to specify whether will be spousal support will be a charge against the estate of the obligor.

f. My next three posts will be the three WV statutes that define the law of alimony. There are many WV Supreme Court of Appeal cases that define it in detail. Longer term alimony is determined by an analysis of 20 factors, age, relative incomes, education, health, length of marriage, lifestyle of the parties before separation, and relative fault in the breakup of the marriage.

I am happy to respond to inquiries sent via my professional website:

www.hunterlawfirm.net

How Did Your Week Compare to Mine?

2011-03-04T13:33:00.000-08:00

I just finished an intense, interesting week. Perhaps you would like to know what that means for a busy personal injury, civil trial, and family law attorney,

a. Worked three 6:00 a.m. to 6:00 p.m. days out of five, and the first six day week for awhile.

b. Had choir practice on Thursday evening (Hit a strong lick on learning the Easter Cantata.)

c. Appeared at a short notice motion for temporary relief in a divorce action and managed to have my client NOT be kicked out of his house. The parties wasted $1200 in combined attorney fees because my opponent wanted to notch an early win. Not today! Perhaps my idea of a collaborative approach may now make more sense to the other party and her attorney.

d. Obtained a preliminary injunction prohibiting further distribution of the proceeds of a disputed life insurance policy, two thirds of which has been spent!

e. Visited my busy barber and discovered no one waiting ahead of me! (That was a high point!)

f. Was hired by a person stationed in Korea, and another with a case in another state. My Internet presence is becoming more important every day.

g. Overcame a dilatory and disingenuous mediator who refused to mediate the case if I were going to attend the mediation. I did so by meeting with my client and the unrepresented Mother of his children before the hearing. We created a 20 page Permanent Parenting Plan using the document assembly program Pathagoras! The judge was happy to approve it and praised the parties lavishly. By doing the job the mediator should have, I saved my client $2000 and both parties six months of agony. I was so proud of them.

h. Met with my client, the Mother of nine month old baby, and with the Father by phone. Started out calling each other "liars", accusing, "head is up her ass", and sundry other insults. Finished with a revised parenting plan filled with promises of mutual respect, putting child first, improved communication, and peaceful transfers of the child. For now, they have to park 50 to 100 feet apart and have a neutral third party carry the child between them, but that is a huge improvement over a contempt petition and impending trial. These people REALLY do not like each other, so I was proud of them too. We again saved the client thousands.

i. Found a potential Medical Malpractice claim worthy of review by one of the top Med Mal attorneys in the State. We will associate if the case turns out to be viable.

j.Made progress in locating a company that caused my client to experience psychotic symptoms from "bath salts", lose his job, and have parenting rights suspended. Oh, if we can just find a viable defendant. I think a jury of WV Citizens will figure how to give a just result in that one.

k. Met with a woman verging on a nervous breakdown, "self-represented", who was so traumatized by her hearing earlier in the day that my paralegal feared for her health and safety. We will help her.

l. Learned the daughter of my Mother's best friend died. She wasn't yet 60 years old. Trying to figure out how to make the funeral Sunday.

m. Set three new client interviews for Saturday. All claim to be bringing in retainers! We will see.

n. And thus goes the life of a person whose lot in life is to meet people with problems and hire on to help them solve them.

The WV Association For Justice

2011-02-21T09:16:00.000-08:00

Travels and “stuff” have kept me from posting the last couple of weeks. My attendance last week at the 2011 WVAJ Mid-Winter Conference provided me an abundance of valuable material to blog about.

1. We became the WV Association for Justice, WVAJ, from the WV Trials Lawyers Association, an affiliate of A.T.L.A., the Association of Trial Lawyers of America.

2. During the Bush era the term “trial lawyers” was demonized by U.S. Chamber of Commerce and the insurance industry, and, within WV, an industry funded entity, CALA, “Citizens Against Lawsuit Abuse”.

3. As a result of intense pressure, and extensive “tort reform” litigation, A.T.L.A. decided to became the American Association for Justice, and we became The WV Association for Justice. Everyone loves justice.

4. The “Trial Lawyers” was an idea of our founding father, the George Washington of WV personal injury litigators, Stanley Preiser. Many articles have appeared recently on Stanley, who died in 2010. He is one of a handful of giants of the profession, known nationwide.

5. I was privileged to be selected as a member of the then WVTLA Board of Directors in the mid 90’s. My association with this organization has been invaluable.

6. Twice a year, we have a two day seminar, our Annual Meeting in June, and the Mid-Winter in February. Each time I come back with at least a dozen key tips or pieces of information. Often I do not know what is valuable until months later.

7. A few examples are:

a. A casual conversation with a seminar presenter, and President of ATLA, led to my son’s finding an internship for his masters of arts program at The Savannah College of Art and Design. The employer insisted on paying him and offered him a job upon graduation. Now that’s an example of networking.

b. I learned of the WV Supreme Court of Appeals case of Hayseeds Inc. vs. State Farm Insurance two days before a day long mediation of an insurance claim resulting from a total loss fire of a local super market. In the face of the threat to pay all my client’s attorney fees and damages for “aggravation and inconvenience”, we collected every single penny of policy coverage, over $400,000.

c. I have been blessed to participate in a number of major impact personal injury settlements. All but one had me associated with an attorney who was or had been President of WVTLA. These lawyers, Wesley Metheney, Guy Bucci, and Tim Bailey have made the difference for me and our clients.I would not know these men if it weren't for the WVAJ.

d. I settled one such case “on my own” without filing suit. Even then, a member of the law firm of one of these firms attended mediation so the defense knew I would associate with a firm of great stature if we filed suit. We did not have to.

e. Because I am “the Republican Trial Lawyer”, I have been given the opportunity to appear on t.v. in support of a beleaguered political candidate and to show up at a local business persons organization in support of a candidate. It is great when I can give back to this organization.

f. I was invited by the WVTLA, in the early '90's, to organize a “Peoples’ Law School” in Upshur County. We ended up doing 7-8 annual schools, one which included an eight week "mock trial". We averaged as many as 150 attendees per session and never less than 80, and I was named State Peoples’ Law School Chair Person”.

g.For several years, we had as many as 20 Peoples’ Law Schools per year and reached thousands of WV citizens, covering dozens of important legal subjects. I was awarded two major WVTLA awards in gratitude from the organization.

h.(My efforts, of course, pale in comparison to the efforts over many years of my friend Dan Ringer of Morgantown who hosts the popular WVPBS program The Law Works.) There is so much misinformation out there about our legal system, including intentional falsehoods and exaggerations, that there is a huge need for accurate information.

i. When the family of a Sago Miner sought me out for advice, I had the perfect person to associate with, Tim Bailey of Bucci, Bailey and Javins, LC. Tim diligently pursued the case to a just decision. I played a role as local counsel. Mutual respect and trust allow us to work well together.

8.Now the WVAJ has a statewide "Speakers Bureau". We will provide a knowledgeagable speaker to community groups and schools. Give our Director Beth White a call at 304 344-0692.

9. Trial lawyers, inevitably, have big egos, and some well known lawyers have left the organization for various reasons, or choose not to join, but it is clearly THE organization for any WV lawyer with aspirations to practice personal injury and insurance law.

The Tension Between Lawyers and Judges

2011-02-01T14:23:00.000-08:00

This is a difficult topic for me. I just deleted my first page, for the second time! Back I go to the blank page.

Last week a thought hit me with full force. It stopped me in my tracks……………………………………………………...............................................

MANY JUDGES DO NOT UNDERSTAND MEDIATION, OR ME! This fact makes cases take a lot longer and be much more expensive than they have to be.

What can I, and any good lawyer, do about poor communication and rapport with judges? I wish I knew. It would make life easier for my clients, my opponents, the judges, and me. I think I understand the problem a lot better than the solution:

1. First, lawyers and judges go to different Continuing Legal Education classes. The judges are taught the "inside stuff", and they, especially the Family Court Judges, come back with new twists and interpretations of common issues. Family law changes more than some other areas, and the legislature and Supreme Court are the source of that.

2a. Of prime interest to judges are methods they can use to avoid reversal on appeal. A small percentage of judges seem to get pleasure in making the lawyer and unrepresented party look and feel foolish. Others make voluminous and largely irrelevant findings, under the theory that if the appeal court can find something in the findings to uphold the lower court, the judge can avoid being overturned. Most judges are "risk averse".They certainly do not require, or even encourage, technical innovation.

3.Occasionally a judge appears as a speaker at CLE, and we should always listen to them carefully. But, judges and lawyers live in different worlds.

4. A judge who has not been a lawyer for decades often seems to forget what advocating for a party is all about. They often are not interested in my telling them what I intend to present, or why (opening statement), and what solutions I propose. And, their body language shows that closing arguments at the end of a tiring hearing are usually NOT appreciated. They see advocacy as us "getting in the way". They wrongfully assume my advocacy is "blind advocacy". I can assure you it is not.

5. JUDGES DON'T GO TO MEDIATIONS! So, they do not understand the ebb and flow, the tips, tricks, subtleties, joys, benefits, the profound sense of accomplishment, and the challenges, that become apparent only after one attends dozens, then hundreds, of mediations. And, our accomplishments in mediation cannot be appreciated by judges because they are not allowed to know what goes on there. Mediation is confidential. Judges listen to the disputed evidence, decide, and move on to another case. They are, in a sense, dictators. Mediation is democracy. Some tough, hard-bitten, trial attorneys lament the mediation movement as a step backward. I disagree, especially in the Family Court setting, but I have also successfully mediated "seven figure", and "high six figure", monetary settlements without ever filing suit. That saves tens of thousands of dollars in litigation expenses and months and years of delay.

6. There even exist judges who "do not believe in mediation" and do not order it. Others encourage the limited view that mediation is essential only for "children's issues", leaving unresolved what to do with the house, the cars, the debts, and alimony claims; as if these issues do not impact the children!

7. Some judges do not care if the lawyers go to the mediation, even though when they do, mediation is the most important part of the whole process. Who in their right mind would leave their lawyer home for the most important event in their divorce case? Understanding mediation takes brains, imagination, humor, daring, and compassion. These qualities are lacking in some judges and some lawyers.

8. And, other judges fail to realize that most lawyers are abysmally bad at "mandatory face to face settlement meetings" without a mediator. And they do not care that we abhor those meetings. Judges expect us to be adversaries and tend not to foster collegiality.

9. And, judges have their favorites. I once complained in vain that the other lawyer showed up late to five hearings in a row in the same case, costing my client and me hundreds of dollars. That lawyer did not get even a "steely eyed squint" from the judge. I would have appreciated even mild chastisement, since I was on time for every hearing. How does the on time lawyer explain that to his client?

10. Court ordered "face to face meetings" force the lawyer to look like "the enemy" to his own client because the lawyer has to point out all the risks and weakness in their own case to his client, causing the client to ask, "Whose side are you on anyway?" I once achieved a fine compromise settlement in a very difficult case only to get fired the next day when the hysterical client called to advise she figured out I had been brainwashed by the other side. Boy, could I have used a strong mediator that day. Such mediators are the salvation of the lawyer with the "difficult" client. Good mediators engender trust in the litigants, and they back up the lawyer who has to give bad news to his client.

11. Even the judges who know me well do not seem to realize that my personal standard of fairness is higher than any ethical "standard" the State Bar can impose on me. I will not lie to an unrepresented opponent. I will work hard to understand their complaints against my client. I will do what I can to get my client to avoid control and emotional abuse. I keep the children in mind constantly. If I cannot represent the client in good faith, I will move to withdraw as counsel.

12. There once was a Family Court Judge who would not let lawyers withdraw as counsel. He loved to assert his control. He would not give me the respect of realizing that I would never move to withdraw without good reason. Sometime it is because the client, simply, will not pay, but usually it is behavior of the client the lawyer cannot condone. We are not slaves who should have to work for free, unless we choose to do so, which I sometimes do. Keeping a lawyer and disturbed client together creates a serious risk of harm to that lawyer.

13. Most judges, but not all, are polite to the people who appear before them. Two judges I appeared before, both now deceased, were always meticulously polite to the people who appeared before them. It was amazing to watch. In their place I think I would lose patience with the unprepared or inexperienced lawyer, the unrepresented, and certainly the person accused of a despicable crime. But, these two judges were so masterful in this regard so that even when they ruled against you, they seemed to feel bad for you. I always felt these judges considered my point of view and weighed it against my adversary's. Being treated with dignity by someone with power over you makes you feel human. The "gotcha judge" or the "too busy judge" does not show respect to the litigant, who leaves the experience bitter and humiliated. I felt the same way in the Air Force. The "Lt. Calley's" of the world made it miserable for those below them.

14. I have tried to build my rapport with every judge, by being prepared, by being respectful, by ALWAYS telling them the truth, by doing my assigned orders promptly, by filing and answering discovery requests timely and completely, by calling and writing the other lawyer many times before filing a motion to compel discovery, and by bringing the judge innovative solutions and theories. Not only do they often seem not to appreciate these things, but they ignore and discourage innovation, and they often do not penalize the party or attorney who ignores these standards. They seem to expect mediocrity, and do not penalize it.

15. What part of these problems is my fault? That answer is clear. My part in this is my cocky certitude. The very thing that helps me get up each day and do this frustrating and irritating work is off-putting to a judge who wants to be in control. I need more tact, patience, and skill at communicating with and convincing the judge. I try, really (!) but my track history is that when I have accurate facts, my judgment has been excellent. When my client follows my advice, the case usually works out. I radiate that confidence, and it does not sit well with some people. (And I wish I were tall and handsome too!)

16. The problems with mediation, as I have said before, derive from the very first pilot project where mediation was started "on a shoestring". It was limited to "children's issues, and lawyers participation, even as mediators, was discouraged. That attitude is pervasive in certain parts of the State.

17. And, there are just too many lawyers and judges who lack mediation skills and confidence in mediation. I have written other articles on this subject. All we can do here in Central WV is the best we can to make mediation work here.

18. And, of course, the judicial system is, by definition, an "adversary system", so the law student does not learn negotiation, collaboration, compassion, and innovative thinking. They are taught "by the book", and "by the book" is not a collaborative effort.

19. Even as my relationship with other family law practitioners improves, as we learn to work together, my frustration in working with judges is apparent. Perhaps as generational changes occur, the attitude of judges, and the lawyers who appear before them, will evolve into a less "adversarial" approach. I wish I could be more optimistic.

20. As long as I am part of this system, I will try to change it for the better.

Document Assembly Dialogue; Roy Lazris's Reply To Scott Curnutte

2011-01-31T14:49:00.000-08:00

Please note that Roy does not argue with Scott. He is not that kind of guy. Instead, he addresses Scott's observations the document assembly is just too complicated and expensive, and tells what he is doing to correct the problem.

Roy's letter:

From: Pathagoras [mailto:info@pathagoras.com]
Sent: Saturday, January 29, 2011 8:38 AM
To: Burton Hunter
Subject: RE: Pathagoras

Burt,

FWIW, let me address one small portion of Scott's comment, quoted below:
2) all use the same proprietary document-assembly program and commit to continue doing so for the foreseeable future; or 3) do our best to coordinate clauses so that when someone realizes that there is a huge market for XML editors with consumer-friendly features we can move more quickly to implement "pick, plug, print" (you can steal my phrase if you like it, but you have to footnote me).

No argument re: the 'big picture' Scott paints, but here is where at least Pathagoras can begin to come into the community.

Let's start with two the 'really big deal' concepts that Pathagoras operates within. 'Plain text' and 'faciality'.

PLAIN TEXT: Plain text promotes universality. (That's what rich text was, maybe still is. That's what XML purports to do as well, and in its world, it does succeed. But comparing Pathagoras with XML is apples and whales.)

Pathagoras uses plain text [variables] and plain text {optional clauses}. That means that documents that are created by anyone (you, me, Matthew/Bender, WestLaw) using square brackets to denote variables and curly braces to denote optional text, are potentially universal documents. (Forget automatic paragraph numbering and other styles that are the bane of universality.) If there were a WordPerfect version (I'm still thinking about it, but just don't have the time), or Open Office or Lotus coding that could read plain text bracketed variables and present them onto a screen and then invoke that program's search and replace routine to make the substitutions, then we have 'lift off.' Documents can be shared. No proprietary program will be required.

In fact, as the last few sentences above suggest, even now a 'proprietary limitation' is not even true. Anyone can create documents with [plain text variables] on any platform, and give/sell/share them with anyone. And anyone can write code to read them. (Of course, Pathagoras does much more than just replace [variables]. I would continue to market Pathagoras for those proprietary features. But, to the extent that others -- including you, Burt, or Scott -- publish documents that meet this 'plain text [variables]' model and standard, everybody's universe of useful and automated documents is tremendously enhanced, Pathagoras installed or not. And there is at least one other program that reads and processes [bracketed variables]. It's called "DataPrompter.")

Of course, most programs today cannot detect [bracketed variables] with the intent of doing anything with them. That's because those programs are trying to do too many other things with that text, many of those things quite worthless, and require much more than 'plain text' to do what they want to accomplish). To the extent, however, that a 'simplicity revolution' takes place, and plain text variables become a norm, then we begin to meet at least one of Scott's requirements.

Speaking of plain text, the Instant Database record that Pathagoras saves out after the form is completed is just a csv file (comma separated value). That is another universally recognized type file. It too is saved all in plain text.

Of course, XML theoretically operates on the same kind of 'plain text' platform, but it is just too 'behind the scenes'. The file structure of an .xml file is plain text. However, no one can read an XML document and make any sense of it. (In the same way that few people can open the source code for a web page and discern what it means. HTML is universal, it's plain text, but it's not what people can use. Despite the fact that HTML code has been around forever in its plain text glory, and despite the fact that there are any number of people-friendly programs that will help you to design a workable website, for the most part web pages and HTML code is still written by experts. Document are written by lay people like you and me.)

FACIALITY:
That is probably not even a word, but what I mean by it is that a typically user can see on the face of the document what the document is supposed to do. A [variable] is supposed to be replaced with a value. {Optional blocks are supposed to be kept if the answer is "Yes" or deleted if the answer is "no".} The end user has to see within the 4 corners of the document what is supposed to happen. A Word2007+ document saved out as an .docx (using XML structure) is definitely not 'facial', at least as far as the XML coding goes.

I continue to force myself to keep 'plain text' and 'facial' in mind as I write new code and functionality into Pathagoras. It would definitely be a lot easier for me to do things using MS more powerful hidden fields, database links and the like as the big guys against whom I compete are doing. But my target market is really not theirs. Their target audience are the firms with IT staff. My target audience are the rest of the firms without such staff. That target audience will always be there.

When that day does come as described in Scott's #3 above, I'll be ready, not with XML, but plain text documents.

The fantastic 'CaseMap' features of document management and case control will never be a Pathagoras function. But when it comes to creating simple too complex documents, and despite all of its 'low tech' underpinnings, I am confident that Pathagoras is on the right track.

--Roy
--
Roy Lasris
Innovative Software Products of Virginia
www.pathagoras.com
info@pathagoras.com
1-866-PATHAGOras (1-866-728-4246) (tollfree)
(757) 874-7300 (fax)
(757) 877-2244 (Virginia, USA -day)
(757) 898-7374 (Virginia, USA -eve)

Can Lawyers Collaborate to Their and Their Clients' Benefit?

2011-01-31T14:33:00.000-08:00

Writing for my blog, to my family and friends, and to other lawyers is very satisfying to me. I have a mailing list of around 200 lawyers I know personally. I write to this group on topics I feel may be of interest to them. Many of my letters are tech oriented, as are some of these articles.

Recently, I got a very kind response from Attorney/Mediator Scott Curnutte of Elkins. Scott is one of the 3-4 best mediators I have ever worked with, especially on Family Law issues.

As some of my readers know, I have strongly endorsed the document assembly program, Pathagoras. Scott's letter raised important issues for our profession. It is a tad technical, so feel free to skip it, but I found it to be helpful and interesting, AND it motivated the President/Designer of Pathagoras, Roy Lazris, to respond with his own creative and constructive ideas. I will post Roy's letter also, in a few minutes. It is good to know that some of us are working hard to improve the quality and efficiency of our written work product.To their credit, the "non techies" are responding with their questions and comments. I hope our clients benefit from the dialogue. Burt Hunter

Next, Scott’s words of wisdom:

To paraphrase Cicero, if I'd had time, I would have written a shorter email, especially if I'd intended it for a larger audience. But, go ahead: I'm sure most people on the list already think I'm a bit of a windbag. I'm happy to continue hearing about this and other efforts you are making to push better use of technology in the practice of law.

The tone of this email seems a bit wistful, so I thought I'd drop you a note of encouragement. I've learned that being a tech pioneer, particularly an altruistic one, bears a striking resemblance to being a pioneer in the 19th century American plains: the view of wide open vistas, pregnant with innumerable possibilities AND the sound of crickets chirping and numbing loneliness. I also wanted to explain why I'm not following this particular set of wagon tracks. In theory, I share your enthusiasm for a central clause/form database. Even the evil insurance companies ultimately saw the wisdom of centralized, standardized form policies. The problem in the legal industry is the present state of the word-processing market, coupled with the lack of market pressure to develop better tools.

I realize a majority of attorneys use Microsoft Word and virtually all the remainder use WordPerfect. "Virtually all" isn't "all," however: I use Lotus WordPro. And, a hardy few of our sisters and brothers use OpenOffice or word processors for the Mac. Because we put up with it, the purveyors of word processors continue to lock us into proprietary formats. Because our documents tend to be heavily structured, with automatic numbering, footnotes, etc., the "minor" formatting differences become huge issues for us. It shouldn't be this way, and it doesn't have to. The entire point of HTML and the reason the WWW exploded was because Tim Berners-Lee saw the importance of separating content from structure. Over 10 years ago XML promised even more abstraction, including the ability to permit disparate databases with disparate naming conventions to exchange data. Notwithstanding their marketing claims, however, the word-processor manufacturers haven't truly implemented XML.

Take any reasonably long pleading created with Word 2007 or later and saved as "Office Open XML" and then try to open it with any other word-processor, including OpenOffice or Google Docs; or, try the reverse. Go ahead and try it, I'll wait (although you should make sure there are no children or people sensitive to cursing in the room when you do, especially if you're working on a deadline)... At least one of the programs didn't crash? You get 2 points. At least one of the programs actually opened the document without throwing an error message? You get 2 more points. Both programs actually opened the document without throwing an error message? You get 2 more points. Seriously: I will offer you a standing bet of $100 that you will suffer formatting problems at the very least. Accordingly, to fully implement your vision we either must:

1) all use the same word-processor and commit to continue doing so for the foreseeable future;

2) all use the same proprietary document-assembly program and commit to continue doing so for the foreseeable future; or

3) do our best to coordinate clauses so that when someone realizes that there is a huge market for XML editors with consumer-friendly features we can move more quickly to implement "pick, plug, print" (you can steal my phrase if you like it, but you have to footnote me).

Since I think option 3 is the best, I'm happy to send you whatever forms you would like to contribute to the content side of your project. I can't commit to spend the time to test or work on the field/clause side of the project, however, because at present I can't use Word forms. Obviously, you've gotten me a bit worked up on the topic, so let me conclude by describing the sod cabin I'm living in and the house I'm beginning to work on. For the last 15 years, we use fields to hold structured data like names, pronouns, addresses, party designations, venue, CS amounts, etc. Our Lotus WordPro forms have field references for that data. The field variables can either be input directly through WordPro, or can bilaterally exchange with structured fields within our Lotus Notes databases. I have not taken the time to implement large clause changes based upon field values. In other words, your Pathagoras

The reason I haven't spent the time to implement more clause-based assembly within our existing system is because I decided to invest my time in the next version of our system. My office uses Lotus Notes for virtually everything, from communication to calendaring to content storage to document management. Every matter has a database which stores every bit of information about the case. It contains all of our communications relating to that client; notes from every meeting; every letter, pleading, or other document is stored with fields for the metadata.

I developed version 1 of the database when Kmart dumped >100,000 emails and internal documents in response to a discovery request. OCR helped to sort the majority and then we extracted the metadata by hand (author, recipient, date, subject, etc). When I went to Chicago to depose the executives, I had an instant list of every email they had sent, received, or seen. I borrowed from CaseMap the notion of storing "facts," with links to the source.

In version 2, I expanded the database to store every scrap of information about a case. That meant that we could link everything. My hearing outlines--created within Lotus Notes--are then linked to the data within the database. So, when I tell the judge that my client's 2009 income was $50,000, there is a hyperlink to the tax return. When I tell the judge that the statute or case says thus and so, there is a hyperlink to the full rule, statute, or case. When I tell the judge that opposing counsel sent an email saying such and such, there is a hyperlink to the email.

At the conclusion of the case, the bill can be reviewed against a view of all the entries in the database, since every phone call, email, letter, pleading, everything, is in there. And, we use it to manage our workflow: once a case manager has created the initial draft of a document, she sends a link to me; once I've completed and approved it, I send a link to her. The system can then automatically check for assignments which are past a certain due date.

For version 3, I'm working on the document assembly part. I'm using Java and XML to dynamically create documents from the data and form banks. I suppose the best way to explain it is to say that I can create a "document" which is more like watching a surveillance camera in real time. When it's time to file a pleading or send a letter by creating a pdf, it's akin to pressing the pause button on the surveillance camera.

The exciting part is the level of abstraction. Currently, we have a several step process to copy from the equitable distribution spreadsheet and paste it into the settlement agreement. I'm working on combining the live spreadsheet data with the structured data with form clauses: change the value of an item, and the settlement agreement dynamically changes the offsetting payment; change the distribution of an item, and the settlement agreement changes too. The other big feature of version 3 will be master checklists for the entire course of the case.

The checklists will initiate processes to prompt the user to input or obtain necessary information, as well as initiating the production of the documents referenced above. The checklists will have expected durations / deadlines. For the last two years, we've tried to structure our data capture about judges, attorneys, and case variables.

The idea is that a case without children, before Judge Jackson, with attorney A, would have a tighter timeline than a case with children, before Judge Longo, with attorney B. The data will permit us to identify common bottlenecks. More importantly, it will permit us to intelligently price our services. Finally, I intend to use it during our employee evaluations: you met or beat timelines x% of the time, etc. For version 4, I plan to automate the process of extracting metadata from documents we receive. Version 5 would automate the filing as well. Currently, everything is scanned and OCR'd.

Then, the case manager creates an entry in the particular client's database, and manually inputs the important metadata. I want the OCR program to email the document to Lotus Notes, which would extract the metadata, determine the appropriate client, and make the appropriate entry in the database. Anyway, I've gone on far too long with this monologue, I just wanted to let you know that I'm glad you're continuing to push, and I'm especially grateful that you're so willing to share your thoughts and work.

How Can I Get My Children’s Parenting Plan Modified?

2011-01-22T09:13:00.000-08:00

This is a question I am asked around 25 times a year. First, what is a parenting plan? From at least the time when the legislature did away with the “primary caretaker rule”, which usually favored the Mother in custody cases, parties have been encouraged to fashion “shared parenting plans” under which to raise their children.

Seminar speakers at the time assured us that the new rule would have very little impact in the “real world”. They were wrong, and I tend to think more good has been done by the new rules than bad.

Under the old standards, one parent “won custody” or was awarded custody, and the other parent was the “absent parent” entitled to “visitation” and access to the children’s (school, medical, and juvenile) records via a “consent” signed by the “custodial parent”.

The inequity of such rules is apparent to me now, although back then I took comfort that the parent who had been more involved in the children’s lives maintained “control”.

The term “Major non emergency decisions” means decisions made relative to medical treatment, schooling, extra-curricular activities, and religious upbringing. The “non custodial parent” could rage over the administration of the asthma medicine or Ritalin for ADHD, and some even sneaked their children to another Dr. during the week-ends, but it was far from a healthy situation. One parent kept “control”, and the other was clearly “second class”. Often the Court referred to that parent as the “absent parent”. Father’s and men’s rights organizations were militantly against that status quo.

Under the shared parenting concept, “fit parents” usually have equal access to records and co-equal decision making, on “the major non emergency decisions”.

With each parenting having a veto over “major non emergency decisions”, you might think there would be constant stalemate. NOT TRUE. Things are have become much better. Now that the “non residential” parent can speak with the pediatrician, the coach, and the Sunday school teacher, and have a say in major decisions, there is less contention. Having the right to drag the other parent to the mediator, at a shared cost usually leads to some kind of compromise solution.
Of course, one of the parents usually ends up making these decisions more than the other, but having “the right” to share in the decision seems to ameliorate some of the resentment and distrust. I often urge parents to go talk with the teacher or doctor together.

Most parenting plans in North Central WV result from agreements achieved at mediation. When parents cannot agree, the Court decides.

BUT, what happens when one party is unhappy with a parenting plan? Each year I see a dozen or so “pro se” Petitions to Modify Parenting Plan. “Pro se” is another term for “self represented”. So far, not one of the pro se petitions states a case under existing statutes. That means they should be thrown out immediately, but our Family Courts have been too intimidated by recent WV Supreme Court rulings requiring them to excuse away the mistakes of pro se litigants. That’s a bit of an exaggeration, but it can be frustrating to an attorney to make an objection or file a motion that would be sustained or granted, BUT FOR the fact the other party is representing herself or himself.

The modification statutes are in WV Code Article 48, Chapter 9, Section 401, “Modification upon Showing of Changed Circumstances or Harm”, and Section 402, “Modification Without Showing of Changed Circumstances”.

The old standard was, simply, “Material Change in Circumstances”. But, when the judges returned from their judicial training, the full import of these statutes became clear fairly rapidly. Judges use them as an excuse NOT to do the hard work of tailoring parenting plans to the best interests of the children. Truth is they do not have time.

Section 402 allows modification if:

a. The parents agree and the Court determines the agreement is knowing and voluntary, and not harmful to the children;

b. There is NOT a material change in circumstances but the parties have been following a different (de facto) plan continuously, and voluntarily, for six months;

c. The modification constitutes a “minor modification” of the plan;

d. When modification is necessary to accommodate the reasonable and firm preferences of at child who has attained the age of 14; OR,

e. And modification can be granted when other parent has made repeated filings of fraudulent reports of domestic violence or child abuse.

There is also case law that one parent’s withholding of the child from the other may be a basis for a transfer of custody.

Modification based on “substantial and material change in circumstances” means facts which arose since the entry of the prior custody order which were not known at the time of the entry and were not anticipated by the parties, such as Mom’s new boyfriend’s opening a meth lab in her garage!

We try not to use the terms “custody” and “visitation”, preferring the more benign “shared parenting” and “time with the child”, but old habits die hard.
Realizing that single moms are often at a disadvantage in funds and resources, the legislature further determined that “choice of reasonable caretaking arrangements, including day care” would not be a “material change”. Nor is a parent’s remarriage or cohabitation a “material change”.

Of course it is “verboten” to make any moral judgment regarding a parent’s “living in sin”. And, properly, a mixed racial relationship, and a party’s sexual preferences are irrelevant unless direct harm to the children can be proven.
WV is the State which had the famous “Gay Parent Case”, In Re Clifford K. That is the case that case motivated the “Kansas Krazies” to demonstrate in Buckhannon on the campus of WV Wesleyan College, during the Sago Miners’ Memorial Service.

In Clifford K, the WV Supreme Court awarded custody of a nine year old child to the 10 year surviving lesbian partner of a biological mother killed in an auto collision. The Court ruled that she was the child’s “psychological parent”, which, of course, she was.

Since “grandparent’s rights” are virtually non-existent since the U.S. Supreme Court Ruled thereon, many a grandparent has custody right now via their status as “psychological parent”.

The point of all this is that WV Family Courts now try to apply a formula to Petitions for Modification, and it is clearly an area of the law that one should not try to traverse without a good attorney. Being a “good lawyer”, my bias is clear, but my views are based on sound logic. Until one understands how judges look at this subject, he/she does not have a chance of successfully pursuing a petition to modify a parenting plan.

What The Heck Does a Personal Injury Lawyer Do Anyway?

2011-01-18T13:53:00.000-08:00

In a world of instant communication, it is amazing the misconceptions people have regarding this question. As I have said, divorce clients have usually been building to a crisis and have discussed their problems with friends and family. Personal injury clients have, often literally, been blind-sided. When the injured client or her family calls, I like to do a rather detailed interview over the telephone, at least 30 minutes. In that time, we must learn the following: a. What type of claim, auto accident, premises fall, medical malpractice, defective product, or deliberate intent (work place injury)? b. Is fault clear, contested, or uncertain? c. What insurance policies are in place, auto liability, premises liability, underinsured coverage, uninsured coverage, property damage, medical insurance, "med pay", "personal umbrella", coverage of other family members, etc.? This can be a very complicated answer. But, getting an overview is essential. If there is no available insurance coverage, where will any recovery come from? Identifying all coverages is often the key to the case. d. What are the injuries identified so far? e. What are the approximate medical expenses? f. Was there outpatient or inpatient care, or both? g. Was there a police investigation, were photographs taken, is there an accident reconstruction report, and was news media on scene? h. What is the date of the injury? This can be a huge question. I am prompted to write this today partly because a caller just advised me that it has been 2 years and 9 months since the collision and 2 years and six months since her 18th birthday! Unless more facts arise, that person is now barred from asserting their claim because of West Virginia's two year statute of limitations (The saddest words the Court can say, "The Statute Ran Yesterday.") The Statute can be overcome, but it is difficult. Assuming the answers to these questions show a potentially viable claim, this is when a competent personal injury lawyer gets to work, usually with a face to face meeting, at the office or in the hospital. FIRST, the lawyer must reassure the client or family member by discussing his credentials and experience, assuring the person that most auto and some other personal injury claims do not require the filing of suit. (Sadly, medical malpractice, premises liability, and workplace injury (deliberate intent) claims do require the filing of suit.) Injured persons have been traumatized, physically and emotionally, and they need firm reassurance. SECOND, most injury victims are concerned about appearing to be greedy or overreaching. I assure them that I have not had a client, by the time they have been through the process, believe he/she has been overly compensated by a generous insurance adjustor or jury. I probe their background, and share mine (United Methodist Church, Cub Scouts, 4-H, U.S. Air Force) and assure them that my values of right and wrong are very similar to theirs, regardless what they may have heard about injury lawyers. THIRD, I describe for them what elements of damages the WV Courts will recognize. These include reasonable medical expenses (past and future), lost wages, pain and suffering, mental anguish, temporary and permanent impairment, disfigurement, and loss of enjoyment of life. Spouses often have a claim for loss of services (consortium), which can include intimacy or day to day services that the spouse performed for the other. If the spouse or family member observed the incident, she may have a claim for emotional injury. A former client was witness to a horrific fatal injury to her pedestrian husband who had his leg severed when a driver lost control of her car. FOURTH, we of course have a form fee agreement we ask the client to read and sign. Clear fault "limits" cases can have contingent fees as low as 10%, but typically the percentage is 20% if settled before suit and liability is not contested, 25% is liability disputed but settled before suit is filed, and 33 1/3% if suit has to be filed. Most medical malpractice cases are 40%, and more complex cases can be 35% - 40%. FIFTH, the claims adjustor must be notified of the claim and the representation in writing and must acknowledgment same in writing in a timely manner. SIXTH, the formal investigation begins, visiting and photographing the accident scene, writing for the police collision report, ordering medical records, and interviewing of witnesses. SEVENTH, more detail is acquired. We ask the client and spouse to maintain diaries, and we have a form letter we write to "lay witnesses", people who knew the victim before and since the injuries. What a surprise it is to some of our more seriously injured clients, who thought they were keeping their suffering to themselves, and were trying to, to learn that their family, friends and co-workers have noticed a dramatic change in their demeanor and behavior. Ten – twenty of such letters are "worth their weight in gold" in convincing an adjustor or opposing counsel at mediation that they do not want this person's story heard by a jury. EIGHTH, when the client reaches MMI, maximum medical improvement, a "demand package" and cover letter are prepared and submitted. Attachments include a narrative report from the treating doctor, and key specialists, the collision report, photos of scene and car, accident reconstruction report if one was obtained, lost wage statement, lay witness letters, and the claimant's diary. Our demand is reasonable but sufficiently robust that the adjustor will not pay it unless it is a "limits" case. NINTH, the moment it appears there may not be enough liability insurance fully to reimburse the client(s), the attorney must send a notice of potential underinsured motorist (UIM) claim to the clients own insurance carrier. Settlement with the tortfeasor may not be made without the UIM carrier's permission. Of course, if the other side had no insurance, an uninsured (UM) claim must be filed with one's own carrier TENTH, in major cases, I often suggest pre-litigation mediation. I have settled several cases this way, avoiding the risk and expense of litigation. ELEVENTH, space does not permit a detailed discussion of the litigation process. Most auto claims do not require the suit to be filed. Once suit is pending, the discovery process must play out, with each side demanding all the evidence in possession of the other side. Questions called interrogatories require written answers, under oath. Requests for production of documents and admissions, and depositions taken before a court reporter, are also used. TWELTH, most Courts require the litigants to participate in mediation. West Virginia has many good mediators, and most cases settle without trial. THIRTEENTH, 13 is an appropriate number, because if all efforts to settle with the adjustor, or in pre-litigation mediation, or mediation before trial fail, the parties must "roll the dice" before a jury, whose decision is usually sustained by the judge. It is a ritualized form of combat, our "adversary system". Most people at that stage hope they have a skilled and experienced trial advocate. At that point, the lawyers who "cut up" on T.V. in order to draw customers may be less than credible with the jurors who most certainly have watched them. FOURTEENTH, the truth be told, the T.V. lawyers who portray insurance adjustors as baboons to be intimidated into submission do their clients a disservice, because some of the very best recoveries occur because the lawyer treated those field adjustors with respect and professionalism, helping them with full documentation to convince their superiors to part with some of the carrier's precious cash rather than risk an even greater award by the jury. FINALLY, the best lawyers focus on the people they represent, helping them to pick up the pieces, focus on the future, protect their family, and come out of the process as whole and healthy as possible. The heartfelt letters we often receive show that caring about the client, as well as the recovery, can make a great big difference in the lives of the people we represent.

Tech Feedback with Blog Readers

2010-12-28T15:34:00.000-08:00

I was pleased to get an e-mail from a colleague who had read my article on creating a tech savvy legal office. He had used Microsoft Word and Excel to organize and retrieve his legal research materials. He shared a set of instructions, and a functional file. He asked about new software that might give him greater capabilities. I will add his name here if he gives me permission.

This is my response:

Dear Gerald;

With your permission, I will circulate your question/comment below, and your attached files above, in a Dear Colleague letter, and perhaps as a blog post. Just advise me if I can use the question and your name.

First, if your system works for you, that is a big plus. For twenty years, I indexed every WV Supreme Court Case. I indexed cited statutes and head note key terms. When Casemaker came out, and our subscription to the SE Reporter expired, I stopped making my index cards and have "been in the dark" ever since! It probably would have been better to keep my old system! The legendary Charlie Hughes kept every reported WV insurance case in bound 3 ring notebooks and issued his revised table of contents and index at the C.L.E. Insurance Seminar each year. It was worth the price of the seminar. I kept my own insurance case law notebooks for many years. They are still somewhere, gathering dust.

I am currently struggling with the very question you ask below:

"I have recently come up with a better way to organize and find my notes, forms, research and other information that I wish to keep for future reference. However, it is quite likely that there is an existing program or strategy that accomplishes what I'm trying to do more effectively.I wonder if you would take a look at my strategy and let me know what you think."

The limitation to my system of course, was that the cards had only the key words. I had to go get the SE Reporter Paperbacks to read the cases. Of course the cases are now on line. It appears that your system will eventually result in a huge file, although you can maintain that file "in the cloud" and keep it synchronized with any device you use, laptop, desktop, I Pad, I Pod, or Blackberry.

As I have mentioned in various articles, I think the key to the future is that indexing can now find virtually any document instantly, full text searchable. One of my favorite books is Scrolling Forward by David M. Levy. It is the history of the document and a good reminder that "documents" have changed drastically. Now, they can be text, e-mail, Word documents, graphics, photos, video, HTML links, and PDF files, searchable and not searchable. Your system no doubt works well with text, but with the right software and hardware and training, you can accomplish a great deal more.

Of course, I an not sure where you are in your practice right now. I assume you are still in great demand for real estate title work and the myriad issues that arise therefrom. If you have a broader range of needs, including personal writing, memoir, family history, genealogy, appellate work, etc., then you definitely are going to want to store, organize, index, and be able to locate every kind of "document".

Assuming you want to benefit from current technology, you need, as a minimum, a good laptop, capable of handling multiple tasks. If you have staff, you will want a network capability so that you are both/all accessing the same file server. If you have high speed internet, you may want your server to be off premises. Cloud based products such as DropBox, WorldDocs, Google Docs, or Evernote, an others may suit you already. My problem is I live in a rural area with a commercial Hughesnet satellite service that is less that half as fast as my office service. If you have high speed service for a home office, you should be in great shape.

If you are ready for a new laptop, I strongly suggest you contact Brian Cluxton of HMU/Affinity Consulting in Columbus Ohio to build a Dell Laptop for you. Because of my rather robust needs, mine is going to cost $2500, plus $400-$800 to install my programs and configure it remotely, from Columbus. I expect this machine to be the workhorse of the office for the next 4-5 years. Baron Henley of HMU strongly recommends a second monitor, at least a portable size, so you can work from one screen to the other. The second monitor should be vertical so you can have a full Word document page to cut and paste to.

He also recommended, and I now have for every member of my office a Fujitsu 1500 series, $425, desktop scanner. Fujitsu has a "Twain" version, for @$600. They allow you to scan any document and save as a "searchable PDF". It is not a flatbed scanner, but it will scan 20 double sided sheets per minutes. It has its own Scansnap software, Adobe Acrobat Standard, separate cost $200, and ABBY O.C.R. software. With Windows desktop search feature, or Copernic Desktop Search Pro, you can do a near instant search of any word in the document. We have been scanning everything into the client's folder. We are not keeping the paper file. We return it to the client, and if she/he does not want it, we shred it. I just with I had that capability 5000 files ago!

As for what the best program is to help you organize your paperwork, you may want to start with your Microsoft Office Suite. I suspect that Microsoft Office OneNote is similar to Evernote, which was recently strongly recommended to me.

The excerpt below as "Snagged" from the Office Help page using Snagit 10.0. Snagit will capture virtually anything you can see on your computer. You can save as a PDF file, jpeg, text, etc. You can take a video of a series of actions on your computer, and you can add arrows, balloons, text boxes and other items in case you are trying to teach something to someone else. This is Microsoft's description of what OneNote does. My OneNote came with the current Microsoft Office Professional.

Dropbox has been acting up for me, but my son John assures me it works, and works simply. Just set up a Dropbox account. Put anything you want in your public folder that you don't mind others viewing. Set up rules whether they can modify, add to, etc. (My Dad's cousin, Lark Hunter, has set up with Hunter Family Tree in such a folder, and he is encouraging family members to make corrects, additions, upload photos, etc. )

You can also send links for semi-private folders, in Dropbox, so that you and I could work on a project together, say an appeal to the WV Supreme Court of Appeals on a boundary line dispute or will contest.

I know a law student who swears by Evernote. The initial version is free, but once you need its more sophisticated capabilities, you have to purchase the product. Evernote let's you save HTML links, and all the rest. You can access the Evernote file, and the Dropbox via your I Phone, I Pad, Blackberry, Laptop, and Desktop computer. Of course, if you put your large Word Document/Excel index into the Cloud, you may be able to stay with what you are doing now, but access it from any tool.

As I mentioned Copernic Desktop Search Professional indexes every document and word on your hard drive, and, supposedly, remote hard drives (that's where I am having my problems.), and you can bring up those documents whenever you need them.

Of course, I am also most interested in getting my colleagues on board exchanging the best available forms/templates for "document assembly" and feel the Program Pathagoras is the easiest to use for me, and the one with the best potential. So far, the response from my colleagues is minimal, but I am trying to give way my forms as quickly as I complete them, so they/you can purchase Pathagoras and have a valuable library from the beginning. I was headed it the right direction, but failed to realize my staff was collectively ignoring my instructions to use Pathagoras for every document. I was stunned to realize that it was not happening because they were comfortable doing what they always had done.

I wish you good luck in checking out these various products, evaluating them, and adapting them to your needs. Remember that the Casesoft products, although much more expensive than they used to be have a outlining, litigating mapping beature, deposition indexing module, and a timeline mapping feature. They now try to get you to pay a subscription fee of @ $1000 year, so I am a bit disinchanted. Anything associated with Lexis/Nexis seems to have this problem.

Buy the Fujitsu Scansnap, just one, right away. You will never regret it. Open DropBox and Evernote and Copernic accounts. They are free! View their tutorials and videos.

Go to the Microsoft website for information about OneNote. If you have Office Pro, you already own the software.

I will always be happy to share ideas and information.

Burt

What Do You Need to Know about Deeds?

2010-12-23T13:24:00.000-08:00

This is my 71st article posted in 2010. I shall try for 100 in 2011. I hope what I have written is of some continuing value to you and others.

If you are ever going to own real estate, or an interest in real estate you will need a deed, to receive it or convey it away. Two related documents are a deed of trust and land contract, which I shall also discuss.

People call me and say, "I want to put this property in my own, or someone else's, name.", much like the title to a vehicle or boat. There is a similarity, but a deed "grants and conveys" the interest, or part of the interest, of the seller or "grantor" to the buyer or "grantee".

In early England, the parties to a deed went on the property, found a pebble or a "peppercorn" and in "consideration" of something of value, handed that item to the receiving party. By this act the grantee became "seised"(the owner) of the property. The symbolic act, and delivery of the deed, conveyed the title.

My law school real estate professor, Londo Brown, described "fee simple" or the entire piece of real estate as a pie. The pie can be cut into pieces, and the pieces can be conveyed separately. In WV, the underlying property, coal, oil and gas, and even limestone can be "severed" and reserved by the grantor, or conveyed separately.

And, different people can own undivided shares of the same real estate. This happens when a property owner dies and leave property by will or by intestate succession (no will) to his children.

Joint owners can be "tenants in common" in which event when one of them dies, that person's share goes to her heirs. They can also be "joint tenants by survivorship" in which event the surviving owner becomes the owner of the entire property the instance the other owner passes on. Most husbands and wives purchase real estate "with survivorship". The resultant transfer in real estate is a transfer of "non-probate property". It is not part of that person's estate.

A deed should have the name, marital status, and spouse of, the Grantor(s). The names of the Grantor(s)/Grandtee(s) should be the accurate full name, or at least first name, middle initial, and last name. It must also include the date of conveyance, the warranty (General, Special, Quitclaim, etc.), "granting language", the County, District, and State where the property is located; any interests reserved, such as a right of way for ingress and egress, or interests conveyed away prior, such as the coal, oil, and gas, and the "back reference". The back reference is the citation to the deed or will which is the source of the Grantor(s')title. It should list the Grantor(s) or Testator(s) and the date, and book and page number of the document.

It is very frustrating to trace a chain of title to real estate back to a deed or will that gives you no clue how the former owner acquired title to the property. Then the searcher must compare entries in the land books, tracing year by year so as to locate the Assessor's note as to the source of the new entry. I check each five years until I encounter the change, then move a year at a time until located. The clerk nearly always lists the source of title by book and page number.

In WV, most people who borrow money in order to purchase property have to convey "legal title" to the property to a trustee in order to "secure" the lender's interest in the pledged property. If their is a "default", notice is sent, and the Trustee may advertise the sale with a flyer on the Courthouse door and then sell on the Courthouse steps. This is called foreclosure. There are attorneys whose primary focus is protecting borrowers from fraudulent or irregular loan practices. I once got a bank to write off a $200,000 loan that was improvidently made to a naive, inexperienced purchaser. The loan should never been made, but the borrowers parents were good customers and the loan officer failed to use "due diligence".

An "evil twin" to a deed is a "land contract". Land contracts are usually entered into by "substandard" purchasers who cannot get a conventional loan. They agree to pay periodic payments, and even a down payment, and sign a note, just like the grantor of a deed of trust, but the worst land contracts say that even if the buyer misses only the last monthly payment, the seller can declare a default, voiding the contract and depriving the buyer any "equity" in the property, OR the value of improvements. If that buyer is unrepresented, and the seller has the attorney, I think such contracts can be declared unconscionable, but no one should take that risk. I do not think a lawyer can, in good faith, negotiate such a contract with the unrepresented buyer, but some do.

At the end of each transactions, whether by deed and deed of trust and note, or by land contract and note, the buyer must get and record a release of deed of trust (lien), or the deed from the owner. Always remember to records these items. Without the release of lien, you will not find a buyer. If your deed is not recorded, the seller can actually sell to another buyer. If that buyer is a "bone fide purchaser in good faith", and not a co-conspirator, he/she acquires title and your only recourse is the crooked seller. SO RECORD YOUR DEEDS, DEEDS OF TRUST, LIENS, AND RELEASES.

I am not a "deeds and wills" attorney, but I have done my share. Call and I shall help you or guide you to an attorney adept at real estate transactions.

A Reminder to People Who Have Been Injured!

2010-12-18T14:37:00.000-08:00

They say Google indexes better on sites with frequent updates, so here is an important reminder post! My divorce clients seem to have a pretty decent understanding of the issues they are facing. The WV Supreme Court of Appeal has responded to the fact that many people cannot afford a lawyer for their divorce or custody case by actually encouraging people NOT to hire one. I think its approach is very misguided. But, with the free forms, and so many people going through the system, family law clients have fewer misconceptions than personal injury clients.

A person who has been injured, in a truck, auto, pedestrian/vehicle, or motorcycle collision, has, literally, been hit by something out of the blue. They haven't watched the problem building over years and usually have not researched what they should do. In severe cases, I may be dealing with a family member and visiting the new client in the hospital.

First, most clients want me to know they are not "one of them", the people who file frivolous lawsuits and seek big recoveries.

Second, they have resisted coming to me, and perhaps seriously impaired their claim, because they assume I will just file a lawsuit. They are relieved to know that I settle more than 80% of my personal injury claims without filing suit, sometimes using pre-litigation mediation.

Sadly, most people who come to me have inadequate insurance to protect them. It starts with the liability limits of the person who wrongfully injured them, the "tortfeasor". If the at fault driver had a commercial vehicle, usually there is $1,000,000.00 of liability coverage or more. BUT, many drivers have the minimum, $20,000 per person. By law, my clients must have $20,000 of uninsured motorist coverage, assuming my client is a licensed driver, but, partially thanks to companies like Progressive (and the ever chirpy Flo who encourages customers to set their own premiums!), nearly half of customers waive or get woefully inadequate underinsured motorists coverage.

A typical middle class family, who owns their home, have retirement plans, savings, and perhaps a family business, should have a "personal umbrella", usually $1,000,000.00, BUT they should be very careful to make sure that coverage includes the underinsured coverage.

So, sometimes all I can do is send in copies of bills of $5000 or more and get the full available insurance and nothing more back from the liability carrier. Those are sad events, and sometimes I charge as little as 10 %. At least I can get the medical insurance subrogation claim waived by my client's medical insurance company. Always I save the client more than he or she pays me.

I always make the client's carrier provide me written proof my client waived the U.I.M. coverage. 3-4 times in my carrier they failed to get one or lost it, and those people, per the famous Bias v. Nationwide case, get the WV minimum additional coverage of $20,000.00.

We become quite friendly with our PI clients. Results usually are favorable, and the client shows appreciation. In Divorce, both sides lose. The similarity is that the client has been through a trauma and is picking up the pieces and trying to build back their lives. I have read diaries of injury client, months and months of pain, depression, and hopelessness. Most recovers; some down, and that is sad.

Injuries hardly ever go completely away, in spite of what the insurance adjustor believes. Joints turn arthritic, and torn muscles have spasm, and suffer reinjury.

The law firms that advertise heavily on T.V. sometimes have very good attorneys, but sometimes most clients' claims are handled by junior attorneys, or the lawyers staff. The time tested way to get a good lawyer is to ask around, read everything online about the lawyer you can find, and meet with him and size him up. I have a full time paralegal. She and I get to know the client very well. I have the client come in monthly to fill us in. I update the case to the adjustor monthly also, so they will keep nudging their reserve upward. Nothing is more frustrating to have an adjustor think you have a $10,000 case when it is really $50,000! I try to make sure that never happens.

I investigate the collision myself, take my own photos, and use my background in auto racing, and the many books I have read on the handling of race cars and racing. I use an engineer/accident reconstructionist (one of the best in the business) and the best known insurance expert in the State of WV, in complex cases.

If litigation expenses are likely to exceed $50,000, I have several firms I can turn to to associate with and share the cost/risk. These skills take decades to develop, and I am proud of them, and proud of my staff.

NEVER, NEVER, NEVER hesitate to meet with a lawyer to discuss your claim. If you find the right lawyer, you will be glad you did!

Tech Update

2010-12-18T13:39:00.000-08:00

Where has my Saturday gone? Cantata Practice, two hours at the office, and a nap during the Mountaineer basketball game perhaps?

Just wanted to follow up my "Tech Savvy Office" post. I got a helpful tip toward the program Evernote, a cloud based research tool, and my Son John guided me through the process of creating a "public folder" that allowed me to share the photograph dense, six page PDF, 2010 Hunter Family Christmas Newsletter with 100 people. I allowed me to create a shortened URL that I could e-mail. Now I have lost that feature from my toolbar and will have to call him again to help me find it.

As of now, I notice these cloud based programs tend to slow down my computer. Not much problem at the office where I have a high speed cable connection, but noticeable here where we have Hughesnet Satellite. I have been pretty disappointed at the intermittent service problems I have had with Hughesnet, but being 5.2 miles south of the main highway, I have no other choice.

Evernote is great in theory, but so far, in spite of watching several video tutorials, it isn't intuitive enough for me. I will persevere because I see cloud based computer as the inevitable "new thing".

Snagit has become easier. I downloaded a new version, and can cut and paste anything from any page. So far it is more useful to me than evernote, although I crave having a listmaker and task list creator that is quicker and less formal than Outlook.

I spent several hours this week consolidating my Pathagorized forms and made and sent to several colleagues templates for a letter we send to clients to help them understand how to respond to our opponents' "discovery requests" and the four documents that a lawyer needs when she/he needs to withdraw from representing a client. I copied Roy Lazris of Pathagoras.com (designer/president) who was kind enough to respond with observations and tips. So far, that has never happened to me with Bill Gates!

I will be setting up a Pathagoras Form subfolder in my DropBox folder, so anyone I authorize can download a form or upload one for the use of others. I really think it will benefit family law practitioners, and attorneys in small offices who have difficulty finding time to design new office practice systems. This is fun for me, but a real chore for others, parents of young children, lawyers who have failed to keep up with technology, etc.

In the long run, I feel that sharing what I known benefits me as much as the person I share with. It softens a bit my reputation of being tough to deal with. I am tough to deal with versus those how are rough or abusive to my client, NOT to lawyers or parties who show us respect and consideration.

How to Set Up a Modern, Tech Savvy, Legal Office

2010-11-26T08:06:00.000-08:00

My practice serves people, almost exclusively individuals, sometimes small family groups, as in a will contest. Having people skills, therefore, is critical.

Of course, other building blocks are also critical, language and writing skills especially. Having some skills at math, in preparing a spreadsheet of a proposed equitable distribution of property or debt, or a demand package with extensive itemized damages, improves the productivity of the lawyer and paralegal.

Being well read and knowledgeable on a large variety of subjects is invaluable to a trial lawyer. If your lawyer is well read, healthy and enthusiastic, you are usually in good handsBUT, running a law practice as a hi-tech business is an ever increasingly important factor for a lawyer to be efficient, productive, and effective. The graph-line for this factor is trending sharply up. Some writers insist it is going almost straight up!

I have watched technology grow from the barely functional voice recorders, to the I.B.M. Electric Typewriter, to the Mag Card, Apple II, the PC, the Internet, Social Media and the iPad. In a cosmic sense, we are barely getting started, but I now have a sense of where we are going for the next 5-10 years. It is going to be fun too!

My sense is for all the moaning about connectivity, the distractions of cell phones, texting, Blackberrys, Droids and I Phones, most of us will have to become adept at handling and filtering a constant stream of information. In a way, that is how mankind has survived so far. It is the hunters and gatherers who were most observant and who processed the most information that fed their families and reproduced.

For me, the ideal is to be constantly in touch with my staff and clients. I do that now with my Blackberry Curve, iPad, Laptop, and desktop. Redundancy is essential. All technology fails eventually. We still have phones and faxes, but the phone is likely to become “hosted VOIP” through our computer network, and all faxes will eventually be electronic.

Scanning will be essential for every paper document, and trees may become more abundant. Clients will keep their files on thumb drives, or even “in the Cloud”; that is, stored remotely in secure servers.

More than ever, the ability to prioritize and focus on tasks will be at a premium. “Efficiency Experts” will probably remain in great demand. Yoga and meditation will become even more popular as information overload permeates our society.

To make this connectivity work, I retained a firm called HMU Consulting from Columbus Ohio, now part of Affinity Consulting Group. They replaced my Microsoft Exchange Server with “hosting” my Microsoft Outlook remotely.

What does that mean? It means that I can access my Microsoft Outlook Calendar, Contacts, Tasks, and E-mail from any of my devices. And they all are synchronized! When the judge says, “Are you available Jan 15, 2011 at 10:30 a.m., I do not have to call my office with my cell phone and pray my assistant is not in the rest room, and she will know of the appointment as soon as I enter it.

Next on the agenda will learning to use services such as DropBox, Worldox, or Google Docs to store documents “in the Cloud”. Download/upload speeds are a bit slow where I live, especially the HughesNet Satellite from home, but soon we will forget what it was like to keep a network server in the office to store all that data. And, if the worst happens, and we suffer a fire or break-in, we can open for business a day or two later at a new location.

Apparently the PDF document file format is the Gold Standard, and all of us will have to own Adobe Acrobat Professional. Federal Court already requires these skills, and attorneys who are not comfortable creating, editing, and using Acrobat and related programs will not be going there. PDF’s allow for collaborative editing of documents, and removal of metadata which contains the history of how the document was created, edited, and modified. We are even going to have to know how to affix the dreaded “Bates Stamp” to the documents we file.

Also, the pursuit of the “paperless office” is speeding up. Our office has a nifty scanner, Fujitsu 1500, on each desk. This $425 device comes bundled with Adobe Acrobat 9 Standard, and Abby O.C.R. (optical character reading) software. That’s $300 worth of software! With this machine, we can scan 20 sheets (40 pages) per minute, save to searchable PDF, and send via e-mail or save to the client’s folder. We can also save the file as a jpeg (photo) file or other formats. The key is “searchable” since we can retrieve the documents almost instantly with the right search software. Never again will we lug a paper file to the upstairs catacombs. Now to shred the 5000 I already have!

Thanks to Britt Lorish of the Roanoke, Va. Affinity office, I have focused my search for integrated office management software on Tabs3 and Practice Master. My hope is to replace my stand alone computer modules with an integrated double entry bookkeeping program, streamlined timekeeping and billing, payroll, and attorney trust account, all integrated with my Microsoft Outlook and word processing and document assembly. This goal is presently on hold. In spite of a very reasonable $295 license for a sole practitioner, the real cost is going to be closer to $10,000! My own proprietary systems will have to serve a bit longer.

While I admire the Mac aficionados who resist the Microsoft giant, I see no real choice but to use the Microsoft Office Suite of programs. This suite includes Word (word processor/outliner), Excel (spreadsheet), Publisher, Outlook, OneNote, and PowerPoint. I will be giving up my Microsoft Access billing and personal injury practice management databases. They served us well when other offices were peeling time entries off of sticky sheets and totaling bills with their calculators.

These Microsoft applications are so powerful and hard to master in detail, I have yet to figure out how to get a small, busy, staff trained in all their features, but it remains our goal. The online resources may be the answer; and turning off the phone and locking our doors once a month.

Word processing can become easier with two remarkable tools:

a. Pathagoras, author Roy Lazris, is a document assembly application that allows the attorney to mark the “variables” in a document and turn them into an easy to fill out questionnaire. My goal if for the trial lawyers to Central WV to develop templates for virtually everything, sharing generously to our mutual benefits, and our clients. By freeing our time, we should be able to move negotiations, mediations, and cases forward more quickly and cheaply.

b. Dragon Naturally Speaking is still, elusively, “almost there”. It allows the user to dictate into the microphone while the words print to the screen. I use it for letters, long memos, and orders, but I will not be happy until I stop being J. Burton Hunter the third and my paralegal is Letetia, not Letitia. The instructions say we can “train it”, but my version is a slow learner.

Here are some tips I got from various seminars that I am using right now:

a. Snagit: the tool that allows me to capture any image, photo, map, graphic, or text and save it in a variety of formats. I can print it or e-mail the file.
b. Copernic Professional search engine. Copernic Professional indexes all of the data on all of your drives, so you can search and find, via keywords, nearly instantly. This means that e-mail, order, memo, letter, or scanned document you vaguely remember can appear, almost magically, at your behest.

c. Recording phone conversations, WHEN BOTH PARTIES KNOW THEY ARE RECORDING, can be an invaluable tool for keeping the conversation civil. The cheap way to do it is the Olympus TP-7; $20. Recording without disclosure is usually a “no no”.

d. Handing over to and receiving the kids from other parent when “drinking” is an issue can be facilitated by the use of the Alcohawk Slim Digital Alcohol Breath Tester, @ $40. Such a tool can increase the level of trust between parents and alert when the alcohol problem is not under control.

e. Double Killer, or something like it, can find the duplicate files or photos that accumulate on your hard drive and delete the extras. Britt Lorish advised that there is no duplicate killer for double entries in your Outlook Contacts, but you can format them to be a line or two, and scroll quickly, deleting as you go.

HI TECH MARKETING:

a. Not every lawyer can advertise on TV. Buckhannon, on the edge of the TV coverage area is particularly problematical.
b. While a robust website such as my www.hunterlawfirm.net site, hosted by West/Thomson’s Findlaw, is not cheap, it can be used in conjunction with some very low cost enhancements.

c. Google Maps, Places, AdWords, Alerts, and Tags, are free or low cost ways to advertise. It may take work to locate your “bubble” in Google Maps, but if I can do it, you can. Then you can upload photos and videos, and list special offers and promotions. Setting an alert for your name or special interest will keep you informed when those words appear on the Internet. The yellow tag draws attention to your entry, and when I added it, my posting got higher on the list. If they don’t find you in the first 2-3 entries, they probably won’t call you!

d. Chatty lawyers like me can, of course, have their own BLOG! I love educating potential clients and challenging and sharing ideas with my colleagues, via my very own magazine/newspaper, the blog titled: www.burtonhunteresq.blogspot.com . Boring it may be (I’m trying!!), but there is substance and thought there for someone who needs information or wants to evaluate me by what I espouse. And there is always the chance it will “take off” and create chatter and attention to you site. But remember, “Content is King.” so provide your readers useful information.

e. Other Social Media allow an attorney to identify “friends” and colleagues and connect and communicate with them. Facebook, while social and personal, allows you to create your Professional or Business page with unlimited “friends” and link it to Twitter and your blog. The more links, the more visible you are on the Internet.

f. LinkedIn is more formal and allows a broader network of purely professional and business connections. Recent updates show that my professional contacts are adding some personality to their sites too, books they are reading, organizations they are joining, etc.

g. Twitter can be linked to your other sites, and the 140 character limit requires you to be concise, but you better have good content, or wit!

h. YouTube is a good place for your professional ads and informational videos. It can link to your other sites.
We all must find our way in this challenging profession; perhaps I am tired of the old grind and playing with these “toys” out of boredom. I admit to loving, and hating, the technology. But the true attraction is using these tools to multiply my capabilities and my staffs’.

Adding a dab of creativity, humor, and originality adds interest to my days. In the end, only technology that makes us more productive and effective meets the test for survival. I hope these thoughts help some other attorneys work through the maze of options, and show a few potential clients that I am serious about using technology to protect their interests.

One Week out of 1900 So Far

2010-11-05T12:36:00.000-07:00

It was just another week.(He says slyly.) Next week, I will able to recall it with a glance at my calender; then it will quickly recede in memory.

So, what does a small town trial lawyer do in a typical week? Since you asked, I shall tell you:

1. When friends Tim and Susan Miley posted their informative article on what a person should do if she is in a serious auto collision, I posted, "Call Burt Hunter?" They did not respond. Tim was returned to his seat as a WV Delegate, so I doubt that he had time to notice my impertinence.

2. Got a low ball offer from an insurance company who shall remain nameless, for now. Clear fault, $50,000 in medical bills and lost wages, and my client's "underinsured coverage" adjustor valued the claim at $85,000. Should be more like $200,000, so it looks like they may make us file one of those "frivolous lawsuits" the insurance companies want you to believe we like to file.

3. Convinced the WV Dept of Health and Human Resources Child Protective Services to interview some children and am thrilled they are recommending that the State of WV intervene, withe the Father, to file a petition in Juvenile Court to protect the children. Yea!!

4. Watched our highly skilled mediator, Scott Curnutte, and two honorable opponents,Steven Nanners and Daya Masada Wright, work with me in getting two written and signed parenting plans, two property and debt settlement agreements, and two final divorce orders in back to back mediations; four hours and six hours respectively! These compromise settlements saved the clients as much as $10,000, and improved the lives of four children. That makes for a very satisfying couple of days.

5. Collected a nice check for an injured client who really needs it. She is going through two major life crises. I am always happy to pay my bills too.

6. Received an order from a judge, coldly, with no findings, and without even reading my motions, denying them, and implicitly telling me I was stupid for filing them. Judge may be right. We will learn when the circuit court rules on our appeal.

7. Met by phone with the State Bar Committee on Social Media; fascinating discussion. Clearly, lawyers are going to have a lot of trouble grasping the revolution that is upon us. Not that we are not smart; most of us are, but we generally don't like change. Now, most divorces are affected by Internet antics.

8. Will have to work Saturday, but, tonight and tomorrow, we also get the spend quality time with our Grandson Grady, and Mother Jessica and Father, our son Justin!

How an Attorney Can Be a Good Adversary

2010-11-01T15:42:00.000-07:00

I have been writing some criticisms of other attorneys. No matter how well intentioned, this can seem mean spirited. For a change, I shall write what I think it takes to be a "good adversary", that is, an attorney who is professional and effective. Every good lawyer likes to encounter such an adversary.

1. A good adversary will be measured in her criticism of other attorneys and not be too quick to call them or their clients "liars". This is a trait I have yet to master. I do not use the "L" word, but even my measured words, filled with my own self assurance, tend to come across as too harsh. I continue to work at this weakness.

2. A good adversary prepares his client well. He does not hide the ball, but diligently helps his divorce client identify and inventory assets and debts. This includes 3 years of state and federal income tax returns, with all schedule, a printout from the employer of all retirement benefits, life insurance, savings and credit card account balances, vehicle and personal property values, account numbers, and account balances.

3. The equivalent to this information in personal injury claims is all medical bills and records, documentation of lost wages and benefits, client diaries, and "lay witness letters" describing the claimant's behavior before and after the collision.

4. A good adversary, when assigned to do an order by the Court , completes that order in less than a week, copies the other party, allows input when possible, and does not unduly slant the draft order, or embellish it.

5. On the other hand, a good adversary will not unduly object to an order that captures the Court's meaning in order to quibble over unnecessary details.

6. A good adversary does not "play dumb" by pretending not to understand the plain meaning of a "discovery request" sent by the other side.

7. A good adversary will require a sincere effort by the client in gathering the information needed to answer reasonable questions. This exchange of information is called "discovery". It is not fair to say we do not have certain information if a trip to the bank, or several phone calls, can obtain the information.

8. A good adversary will address the legitimate concerns of the other party, whether contained in letters of complaint or brought up in mediation.

9.A good adversary avoids "Hiding the ball" by denying events the other party knows happened, or denying a problem, such as alcohol or drug abuse, that requires candor to solve.

10. A good adversary will respond promptly to letters of complaint from the other side. He should insist on honesty from his client, keeping in mind risks associated with "self incrimination".

9. The responsive letters should focus on facts, especially provable facts, clarifying any misapprehension by the other side, apologizing where appropriate, assuring that corrective action has been taken, and denying false accusations without histrionics or overreaction.

10. These responses may fairly include counter-criticism but NOT to justify bad behavior by the attorney's client. For example, just today a party attempted to justify allowing her son to miss his remedial English class by saying he had "already missed 3-4 sessions" while under the care of the Father. Some excuse!

11. A good adversary appears at mediation and trial well prepared, having provided copies of key exhibits to the other side.

12. A good adversary comes to settlement meetings with IDEAS. That is, ideas that have a win win component, or strong support, in the law or the facts. e.g. A claim for rehabilitative spousal support will help the custodial parent get more education and training so that parent will better be able to support the parties' children.

13. When the claim is for permanent alimony, copies of the Alimony Statute should be brought to the hearing, to help the mediator explain the 19-20 factors the WV Legislature and Supreme Court have identified and applied in determining the duration and amount of alimony. When alimony is awarded in accordance with the law, it is often fair.

14. A good adversary is honest with the Court and her own client. Encouraging the client to believe the other counsel is vindictive, incompetent, or dishonest is problematical even when true. Most of the time there is something meritorious in what the other side is attempting, or some reason to do what they are doing. The good adversary explains, explains, explains, until the facts sink in. When the client is too stubborn to accept the truth, a parting of the ways may be necessary.

15. A good adversary tries to show respect for the other attorney's professionalism, and tries not to take the bait when provoked by the other lawyer. This one is very tough for me. I keep thinking my 38 years of making mistakes and learning from them, should be respected by my peers, even the young "whippersnappers', but they keep thinking that since they are young and smart, I should agree with them.

16. Most of us have not chosen this profession because we are shy, and both attorneys have to work hard so their own competitiveness does not get in the way of a successful negotiation.

17. In Court, frivolous objections such as "hearsay" or "relevance" are a waste of everyone's time. An experienced judge knows "lawyer b.. llsh...t" when she sees it. On the other hand, a good advocate facilitates the testimony of friendly witnesses, or his client, WITHOUT testifying himself.

18. A good advocate does not misstate the witness's previous testimony in order to trick him. An attempt to twist the witness's statement, or mislead the jury, will not impress them.

17. Opening and closing statements, to a Jury, Judge, or Mediator, should be concise and accurate. The opening should be the roadmap for that party's case. The closing should be include a fair summary of the testimony, and cogent argument why the fact finder should rule in that party's favor.

20. A good adversary keeps long term goals in mind. A pre-litigation mediation can save BOTH SIDES tens of thousands of dollars of litigation expenses. Insurance companies can be persuaded by such logic.

21. DON'T reflexively accuse the defense counsel of resisting settlement to earn a bigger fee, even if it appears to be true.

22. In Family Court, an outcome that is fair to both sides is usually better for the children. Barring serious domestic abuse, and some drug or alcohol problems, each party deserves to be treated with dignity and to leave the Court knowing the Court carefully considered their point of view.

23. Good adversaries bill fairly, and tender detailed, itemized bills, when seeking an award of attorney fees.

24. And, a good adversary follows the spirit of Rule 11 of the Rules of Civil Procedure, which prohibits frivolous pleadings and lawsuits. The lawyer for the party receiving such a pleading, should give the offending lawyer plenty of notice to clean up her act. Twice recently, I saw the lawyer had overstretched the client's position. In once instance, the other lawyer withdrew the pleading without having to admit any big mistake. In the other, there was still plenty of "fuss and fury".

At the heart of these suggestions are honestly, competency, humor, compassion, and intelligence. We can all improve in these areas if we try.