Category Archives: Logic Isn’t Always The Life Of The Law

The Bad News Is…

One of the things that law school didn’t really prepare me for was the clients who you can’t help.

When I first started practicing law, I was eager to help clients and potential clients, and there was one who stands out in my memory as the first one I couldn’t help.  He had cosigned on a car for a relative, who had defaulted, and he came to see me, because the bank had come calling on him.  I saw nothing in the documents or the circumstance he described that would permit me to be of any meaningful assistance, but I was slightly worried that he might try to hurt me after I told him that I couldn’t help him.

He was very deliberate as he pushed back from the table, and left the room, never saying a word, and his jaw set like a rock.  After my initial relief at not having to dodge a punch or three wore off, I recall thinking “Well, that’s one person whom I’ll never see again.”

But I was wrong.

Before I moved on from that firm, the man came back to see me two more times.  The next time I met with him, he had a contract he wanted me to review before he would decide whether or not to sign it.  I was delighted that he consulted with me first.  I read through the document, noted a few points that I though he should be aware of, which prompted him to tell me that he was going to think about it before deciding to sign or not.  After wrapping up my notes, I looked up and said “Can I ask you something?”

He smiled and said “Let me guess.  You want to know why I came back.”

I nodded my head and said “Yes.  I could tell you were pretty upset when you left last time.”

He laughed and said “You’re not wrong, but I will tell you that I wasn’t upset with YOU.  In fact, I liked the way that you didn’t sugar coat it, even though you didn’t like telling me that there was nothing you could do.  You were honest with me, you didn’t waste my time, and you told me what I did wrong without making me feel stupid.  I knew I had found someone I could trust, and that makes you worth the money you charge.”

I saw him one more time, when I wrote a Will and powers of attorney for him.  Again, he expressed his thanks for the straightforward advice, and the no-nonsense approach.  I still think of him often, because I still encounter people whom I can’t help.  I won’t say that it’s easier telling clients this now than it was then, but I find that by trying to be respectful of their time, and by trying to not make them feel stupid because they made a mistake, I give them something of value, even if it was only allowing them to leave with the dignity they had when they walked in to my office.  Not everyone reacts well to such news, but I have managed to keep a few of them as clients because I approached their problems in this manner, which turns a negative into a much larger positive.

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Filed under Contracts and Agreements, Empathy, Logic Isn't Always The Life Of The Law, Pieces of the puzzle, Planning, The Practice, Wills

Always Learning…

I was helping out on the grounds at church this morning, and my pastor and I got talking about the things that school doesn’t teach you about either of our professions.  And I told him that one of the things about doing estate and probate work is that I bring clients face to face with their own mortality.  But the lesson they didn’t teach in law school is that they also bring me face-to-face with mine.

You expect that you will deal with people dying in this line of work, but nothing prepares you for how you feel about it when you actually liked them, or came to consider them as friends.  Or how you’ll feel when you watch their kids squabble over what was left behind, and end up squandering the estate left to them with love, and the hopes that it would be a blessing, rather than a curse.  It isn’t much of a legacy, and there have been times when I have been glad that some of these clients and friends didn’t live to see what knuckleheads their children turned out to be.

It isn’t always doom and gloom.  I’ve seen some remarkable acts of kindness and reconciliation, some recognized as such, and some not so much, but it helps me to maintain the perspective that some people can’t help it.  And in some cases, Mom and Dad knew, and planned accordingly.

Being an attorney, you get used to keeping people’s secrets, and when it comes to family, some of them are doozies.  But when you see the effect of some of these secrets up close, you realize that they aren’t really secrets at all, but just the individual manifestations of problems that some people want to pretend society doesn’t have, or that society is capable of “fixing” by itself, with yet another law, or regulation, as if addressing the behavior is the same thing as addressing the cause of the behavior.   But then, if law school taught these things, maybe our professional role would be much more about counsel than it would be about law, and there are days when I’m not so sure that some members of our tribe are equipped for that, either.  But that is an observation for another time.

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Filed under It Ain't Perry Mason, Logic Isn't Always The Life Of The Law, Pieces of the puzzle, Probates and Estates, The Practice

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