Monthly Archives: March 2013

Thank You Very Much, Your Honor. May I Have Another?

When I first started practicing law, I worked at a firm where 1/3 to 1/2 of my practice at any given time was family law.  One of the cases I got was a post-secondary educational support motion.  In the state of Washington, we embrace the fiction that going to college makes people smart and employable, so even if a non-custodial parent pays their child support until their kid is 18, they can still be forced under some circumstances to contribute to their children’s college education.  One of those conditions is that the child achieves and maintains a certain grade point average.

My client was the non-custodial parent, and had been unemployed for a long period, despite having gone through job retraining.  The ex-spouse, who brought the motion for contribution, was a teacher.  The kid, despite being the spawn of an educator, was dramatically underachieving at the local community college.  We tried to get the transcript, but were not having any luck.  Finally my client got the kid’s password, and printed off the transcript that proved the kid was NOT making the grade.  I had my defense.

We showed up on the date of the hearing, and we walked into a packed court room.  The Commissioner that day was a pro tem (meaning that it was a practicing attorney who was substituting).  I wasn’t alarmed, because I had argued motions before him before, and believed him to be fair.  What I hadn’t considered is that when the adjudicator is also an advocate, sometimes the advocate wins.

We were the second case to be heard, so the court room was still packed.  My adversary made his case, and then it was my turn.  I reminded the court of the GPA requirement, and passed a copy of the transcript to the Commissioner and opposing counsel, pointing out that the “student” wasn’t a good student, and that perhaps their time might be better spent asking “Do you want fries with that?”  My adversary looked deflated.  I watched from the corner of my eye as he kept stealing glances at the transcript.  I finished my argument, convinced that my client was going to prevail.  My opponent said nothing.

It was quiet as the Commissioner looked down at me over his glasses and addressed me.  “Counselor,” he said, “I notice here at the bottom of this transcript that it says “Unofficial Copy”.  Do we have a hearsay problem here?”

My opponent perked up, his case revived by the person who was there to judge it, not argue it for him.  “Your honor, I OBJECT!  Hearsay!”

I looked around the courtroom.  My client did the same.  The child was not present, so I couldn’t get their testimony to authenticate it.  I was trapped.  My opponent had won.

As I packed up my folio, one of the old-timers sitting immediately behind the bar leaned forward and said “Tough Break, Kid.”
I looked at him and replied “What the hell was I supposed to say?  Gee, your honor, thanks for making my opponent’s argument for him.”?  He just chuckled and said “Sometimes, there’s nothing you can say.”

Sometimes, it doesn’t pay to get out of bed.

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A Plague of Pro Ses

When I was still a brand new baby lawyer, I wrote a piece about the unexpected things that happen in the practice of law that they don’t teach you about in law school.  These are the kinds of things that used to stress me out.  Now I just try not to laugh out loud.  Sometimes, I fail.  Case in point:  The two counties I do most of my practice in have gone to e-filing almost every civil matter, which means that there is very little that we as lawyers get to present in person to the judges anymore.  New probates are one of the exceptions to this, and I go to court for all the probate matters in our office.  I enjoy the chance to sit in the Commissioner’s Court and listen in.  Sometimes the matters are entertaining, sometimes they are instructive, but most of the tim, they serve to remind me why I don’t want to become a Court Commissioner, despite the fact that the job comes with a gavel, a nifty black robe, and a nice salary.  That was the case on my latest trip, although it was also entertaining.

It was a Tuesday Morning, and the court room wasn’t very full.  I didn’t anticipate a long wait, so I sat down to wait.  There were two attorneys addressing the court in what I presumed was a contested probate, given the nature of their presentation, but they appear to have hashed out a deal before the Commissioner could do it for them.  Then the Commissioner sat waiting for a few minutes, looking bored, before an attorney who reminded me of a taller Stanley Tucci came in, and told the Commissioner the matter was ready.  It was a show cause hearing for an eviction.  The tenant was representing herself, and the attorney seemed none too pleased about it.  He laid out the framework of the deal which had been reached, but it appeared that the Tenant was now having some buyer’s remorse.  The attorney apologized to the court, and stated that he thought that after two hours of negotiation with the Tenant’s [limited representation] counsel with the Housing Justice Project attorneys, he thought they had a deal, but that they Tenant now had a concern that one of the terms, a waiver of notice of any hearing if she didn’t comply with the terms, violated her right to due process.  As the attorney tried to ask for a Writ of Restitution since the deal was not palatable to his client without that condition, the Tenant started to talk to the Commissioner about the details of the negotiation.  She went for about a minute, until the attorney objected based on [Evidence Rule] ER 408, which renders statements made in negotiation inadmissible.  The Commissioner upheld the object, and then let the Tenant continue to talk.  After another 3 or 4 minutes, the attorney interjected “That’s not what we agreed to, and it was never discussed.”  I looked up.  The Commissioner looked over at him.  He said “Do you want to know what was said?”  The Commissioner opened her mouth, but before she could say anything, he said “Well!  I guess I just overrode my objection, didn’t I?” 

I laughed out loud.  I couldn’t help it.  Thankfully, I wasn’t the only one, just the loudest one.

The attorney proceeded to set the record straight, and then made a pitch to accept her payment if he could consolidate a few procedures that are separate according to statute, if he had to continue with eviction proceedings within the next twenty days.  I could see that he was struggling with trying to save his client’s money because of the likelihood that he would soon be back, again seeking an eviction.  At that point, the Commissioner looked at him and said “Counselor, I’m not sure by what authority I would be able to grant you the relief you seek.”  He responded, “I’m not sure either, your honor, but I’m equally unsure by what authority the Tenant got testimony about negotiations with her counsel admitted on the record here, either.  I just thought that as long as we were going down that road, we may as well try to salvage something for our efforts.  I guess I’ll have to step out and call my client and ask them what they want to do.” 

I laughed out loud again.

The attorney and the tenant stepped out into the hall, and again, there was a pause while the Commissioner looked bored, and waited for the clerk to give her the next set of pleadings which happened to be mine.   While I had laughed at the absurd exchange, I realized that this was yet another problem created by our profession’s good intentions.  I have been told by a few old timers that before we started redirecting money for the representation of indigents, that getting a deadbeat who owed you rent out of your space was no big deal.  You served the notices, you filed the papers, you went through the abbreviated proceedings, the tenants either left on their own, didn’t show up, allowing you to get your order, or they would show up, tell their incredibly sad stories, and THEN you got your order.  Now, with a professional limited representation rule, and funding for attorneys, the Tenants come to court, sit down with someone who represents them for the purposes of negotiation ONLY, who try to find ways to make sure you don’t leave with the order that helps your client stop their financial bleeding.  Not representing them in court means that the Commissioner can’t make their lives uncomfortable for not sticking to the deal that they just spent an hour or more of the landlord’s attorney’s time negotiating.  The Tenant is instead a pro se, representing themselves for purposes of the hearing, and often getting more process then they are actually due, so that no one can allege that the whole process is “fundamentally unfair”.  Given that there are quite a few pro ses in Commissioner’s court daily, the end result is greater cost for represented parties, because more the attorney’s time is spent, and the Commissioner has to listen to every sad story and excuse known to man.  I’m not sure how they can do that day in and day out and not just lose it.  And in this case, I suspect it was why the Tenant kept talking after the objection was made and upheld. 

I have been in positions in the past where the other party represented themself.  It was the owner of a corporation who did not hire an attorney to represent his company in the matter.  (In Washington, owners of closely-held corporations are not allowed to represent the corporation in court; they MUST hire an attorney.)  Naturally, this created its own set of problems.  In this case, I had the gentleman served (he was the Registered Agent), and he responded to me with a letter.  I did not receive an Answer, and naturally, this lead to the question of whether or not anyone had actually appeared on behalf of the corporation. (It was an out-of-state corporation, by the way).  I waited the longer prescribed period for him, or anyone to submit an Answer, and when I didn’t receive one, I noted a Default Judgement hearing.

On the hearing date, I showed up, and no one appeared on behalf of the corporation.  The court noted on the record that it had received only the pleadings I had filed.  I disclosed to the court that I had received a letter from the owner of the company, but no Answer, nor had any attorney provided me with a Notice of Appearance.  The judge asked me by what right I had scheduled a Default hearing.  I reminded the Judge of the caselaw that very clearly requires that corporations be represented by counsel in Washington.  I then told him that I had checked, and I didn’t find the corporation’s owner in our online directory of attorney’s.  I told him that for that reason, despite the fact that we have caselaw on “unofficial Notices of Appearance” that would have prohibited me from scheduling a Default hearing had the letter been sent to me by an attorney representing the corporation, I did not believe that someone who is not legally entitled to represent the corporation may nonetheless appear and be entitled to notice on the basis of such a letter.  The Judge disagreed, and ordered that he be given notice of proceedings.

Irritated at the illogic of it, I complied, and noted another Default hearing, and gave him notice.  To my surprise, he actually showed up…without an attorney, of course.  We commenced, and the owner started to present his case.  I objected on the basis that he was not allowed to represent the corporation.  The Judge upheld it, but then told the owner that he could not let him represent the corporation, but that he should take the opportunity to talk with me, and negotiate a deal that would be more favorable than the judgment I was there to get.  I looked at my client, who indicated to me to go ahead, and we went in the hall, and wrote up an order that actually spared me from having to get my attorney’s fees approved by the court.  The owner signed, my client signed, and I signed, and we entered it.  When the owner didn’t comply, I went and got the order, which contained a judgment if the owner didn’t comply by the date which had come and gone, and entered the transcript in Superior Court, so that my client could take it to out-of-state counsel and execute on it.

The owner appealed!  Again, pro se, despite having the prohibition against it explained to him by the Judge.  I showed up on the hearing date.  The Judge asked the owner to start.  I immediately objected, pointing out that the law prevented him from representing the corporation, and that the appeal itself was not valid, as he didn’t have standing himself to make it.  The Judge asked “But counsel, isn’t the court allowed to let an owner represent a corporation if they make the request for permission to do so of the court?”  I responded “Yes your honor, but he did not do that in District Court, and it would be improper for you to entertain such a request now.”  The Judge said “I don’t know if it would be improper, but I suspect you would appeal if I did entertain it.”  I smiled.  “Yes your honor, I certainly would.”

Judgment was issued in my client’s favor, but the court denied my attorneys fees for the appeal.  Just more cost to the represented parties, and more of the court’s time wasted.

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Filed under It Ain't Perry Mason, Logic Isn't Always The Life Of The Law, The Practice