It's All About The Law™

If you just graduated law school, you may be thinking about starting your own practice.

Before I continue let me say you need to be concentrating on passing the bar. I have a couple of comments about the bar exam in a postscript at the end of this blawg post.

For many new lawyers, starting a practice is the fulfillment of their dreams. But sometimes starting a practice can be the realization of their nightmares. I’m writing this post to help you fulfill your dreams — and avoid the nightmares.

I recently read an article by Marshall Goldsmith about Why Coaching Clients Give Up. He said clients give up because

It’s harder than they thought it would be,
It takes too long,
Ownership,
Distraction,
Rewards, and
Maintenance.

I agree with Dr. Goldsmith’s list. And I believe the same issues he lists for coaching also apply to starting a law practice. So I will use his list to explain.

Running my practice is harder than I thought it would be.
You are correct. Running a law practice is hard work. You may have thought it would be easy. If it was easy, everyone would do it; and be successful at it.

Ask yourself if you are willing to work hard enough to own your own law practice.

Running my practice takes longer than I planned.
Studies have shown it usually takes 9 years for a business to become an “overnight success.”

Ask yourself if you are willing to put in the time it takes to own your own law practice.

I started my own law practice and failed but it wasn’t my fault.
Too many lawyers refuse to take ownership — responsibility for everything that happens in their practice. I touched on this in a business post. Everything we do as lawyers (good and bad) is our “fault.”

Ask yourself if you are willing to take ownership of everything that happens in your law practice.

I’m busy right now. I’ll get to that problem tomorrow.
When you own your own practice, distractions happen every day. Problems arise, every day. Being the owner means it’s up to you to deal with the distractions.

A few weeks ago, an opposing attorney flamed me. I responded politely and pointed out the facts of the case. She apologized — explaining that she had other pressing matters and confused them with our case. The question she needed to answer is “Who is responsible for seeing that your pressing matters are arranged so as to avoid confusion?” The answer is, “You — the owner of your practice.”

Ask yourself if you are willing and able to deal with every distraction and problem in your practice without delay.

I started my law practice to make money and be able to enjoy it.
The rewards of owning your own practice are often intangible. And often take years to be realized.

Just like Dr. Goldsmith said about his coaching clients, I often hear lawyers say “Why am I working so hard? I didn’t make any more money anyway, so why am I killing myself?”

Ask yourself if you are willing and able to put off gratification until your practice rewards you (if ever).

My law practice is going great! Now I can coast and enjoy the ride.
Wrong. Owning your own law practice is a process you must maintain. Your practice is either growing or dying. It can’t stand still; and neither can its owner — you.

Ask yourself if you are willing to maintain the growth of your practice.

_______________________________________________________

If you want to start your own law practice, go into it with your eyes open. It will be hard work and take a lot of time. It will be your responsibility to take care of everything that happens — good and bad. You may not see immediate rewards, and even when good things happen it will be up to you to maintain the activities that created those good things.

Starting your law practice is the fulfillment of your dreams. Every day will bring new challenges — and opportunities. Read and study the posts in this blawg. Read and study and get the help you need. Ask questions and keep asking questions. Then starting your practice won’t be the realization of a nightmare.

Thanks,
Larry

Your comments are always welcome. Please let me know.

PS Bar Exam Comments: I know many lawyers who didn’t pass the bar on the first try. And most of them are smarter than me. The issue was in their preparation for the bar exam, so here are my tips FWIW.

The bar exam is as much an endurance test as a knowledge test. It is 2 full days — and you need to be in (physical) shape for it. Put yourself on a strict schedule.

By way of illustration here is the schedule I followed every day from graduation until the exam:
– Arise at 7:00 AM
– Light breakfast (usually 2 soft-boiled eggs, 2 pieces dry toast and glass of milk)
– Begin study at 8:00 (enjoy 1 cup of coffee during study)
– Pause study at 11:00 AM
– Swim laps for 45 minutes (or whatever physical exercise you use) and get some sun (no burn)
– Shower and shave
– Light lunch (avoid greasy, spicy, or other “upsetting” foods)
– Continue study until time to leave for bar-prep class
– Attend bar prep class
– Return home for supper
– Relax — No further study for the day
– Bedtime at 10:00 PM
– Do it all over again.
Good luck.

PPS I still remember what my bar prep class teacher said, “Don’t talk about attractive nuisance unless the question involves children.” (grin)

Sometimes it’s hard to understand why the Supreme Court of the United States (SCOTUS) makes the rulings it makes. In this post I’m going to give you a thumbnail overview of how SCOTUS views the law in the U.S.

Note: I’m not writing this as a law school text or brief, so I have taken some liberties for purposes of clarity and simplification.

Let’s go back to the most significant case pertaining to the courts in the United States – Marbury v. Madison (1803). In Marbury v. Madison, Chief Justice John Marshall said “It is emphatically the province and duty of the judicial department to say what the law is.”

Notice that Marshall said “the judicial department.” He didn’t say the Supreme Court. What this means for you and me is that any judge, in any court, on any day, can “say what the law is.” It is the province of every judge to say what the law is. And every judge has the duty to say what the law is.

Sometimes SCOTUS (and state court judges) have to deal with cases they would prefer to avoid. For example, in Bush v. Gore (dealing with the 2000 election of former president George W. Bush), the Supreme Court said

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

To understand U.S. Supreme Court opinions, always ask yourself “What Constitutional question is involved?”

In Marbury v. Madison, the question was whether the Judiciary Act of 1789 (a federal law) increased the jurisdiction of the Supreme Court beyond its limits in the Constitution [Yes]. The law was struck down and Marbury lost the case.

In Bush v. Gore, the question was whether the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution [Yes]. George W. Bush won Florida’s electoral votes under the previous vote certification of the Florida Secretary of State (Katherine Harris). That’s why he became president.

Keep in mind that the Constitution (and the law made in accordance with it) is for you and me.

In 1905, Justice Holmes wrote a dissent in Lochner v. New York, and said, “[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

This leads up to today’s SCOTUS opinion in United States v. Stevens.

Before reading further, please note that I am not in favor of animal cruelty (in reality or by depiction).

In United States v. Stevens, SCOTUS said

Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” §48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The legislative background of §48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under §48 for selling videos depicting dogfighting. He moved to dismiss, arguing that §48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared §48 facially unconstitutional as a content-based regulation of protected speech.

The Court held that Section §48 is substantially overbroad, and therefore invalid under the First Amendment. Take note of the words they used – substantially overbroad. They didn’t say no law can be passed. They said the law (as written and passed) was overbroad.

This is a good thing for you and me.

SCOTUS explained what it means:

Depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment. Because §48 explicitly regulates expression based on content, it is “ ‘presumptively invalid,’ . . . and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817.

Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech – including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct – that “have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U. S. 568, 572.

Depictions of animal cruelty should not be added to that list. While the prohibition of animal cruelty has a long history in American law, there is no evidence of a similar tradition prohibiting depictions of such cruelty.

The Government’s proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government out-weigh the costs.

Section 48 creates a criminal prohibition of alarming breadth. The statute’s definition of a “depiction of animal cruelty” does not even require that the depicted conduct be cruel. While the words “maimed, mutilated, [and] tortured” convey cruelty, “wounded” and “killed” do not.

Those words have little ambiguity and should be read according to their ordinary meaning. Section 48 does require that the depicted conduct be “illegal,” but many federal and state laws concerning the proper treatment of animals are not designed to guard against animal cruelty. For example, endangered species protections restrict even the humane wounding or killing of animals. The statute draws no distinction based on the reason the conduct is made illegal. Moreover, §48 applies to any depiction of conduct that is illegal in the State in which the depiction is created, sold, or possessed, “regardless of whether the . . . wounding . . . or killing took place” there, §48(c)(1).

Depictions of entirely lawful conduct may run afoul of the ban if those depictions later find their way into States where the same conduct is unlawful. This greatly expands §48’s scope, because views about animal cruelty and regulations having no connection to District of Columbia, for example, but there is an enormous national market for hunting-related depictions, greatly exceeding the demand for crush videos or animal fighting depictions.

Because the statute allows each jurisdiction to export its laws to the rest of the country, §48(a) applies to any magazine or video depicting lawful hunting that is sold in the Nation’s Capital. Those seeking to comply with the law face a bewildering maze of regulations from at least 56 separate jurisdictions.

Limiting §48’s reach to crush videos and depictions of animal fighting or other extreme cruelty, as the Government suggests, requires an unrealistically broad reading of the statute’s exceptions clause. The statute only exempts material with “serious” value, and “serious” must be taken seriously. The excepted speech must also fall within one of §48(b)’s enumerated categories. Much speech does not. For example, most hunting depictions are not obviously instructional in nature. The exceptions clause simply has no adequate reading that results in the statute’s banning only the depictions the Government would like to ban.

Despite the Government’s assurance that it will apply §48 to reach only “extreme” cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly. Nor can the Court construe this statutory language to avoid constitutional doubt. A limiting construction can be imposed only if the statute “is ‘readily susceptible’ to such a construction,” Reno v. American Civil Liberties Union, 521 U. S. 844, 884. To read §48 as the Government desires requires rewriting, not just reinterpretation.

I underlined those two words. As I mentioned above, SCOTUS didn’t say no law can be passed. They said the law (as written and passed) was overbroad.

And note what SCOTUS said to protect you and me. They are not going to rely on “the Government’s assurance that it will apply §48 to reach only ‘extreme’ cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly.”

They finished by saying,

The Government makes no effort to defend §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene), and that the ban on such speech would satisfy the proper level of scrutiny. But the Government nowhere extends these arguments to other depictions, such as hunting magazines and videos, that are presumptively protected by the First Amendment but that remain subject to §48. Nor does the Government seriously contest that these presumptively impermissible applications of §48 far outnumber any permissible ones.

The Court therefore does not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. Section 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

Remember, under our Constitution, the legislative branch (Congress) makes the law, the judicial branch (SCOTUS) interprets the law, and the executive branch (the President) enforces the law.

I hope this post helps you understand U.S. Supreme Court opinions.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

Do you remember when you became an attorney? You took an oath.

Do you remember the oath you took?

Here is a quick summary of some oaths.

Every officer in the United States government, other than the President, recites the following Oath of Office:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

Emphasis added.

This oath dates to the period immediately following the initial ratification of the United States.

It was expanded by Abraham Lincoln, who “ordered all federal civilian employees within the executive branch to take an expanded oath.” Even postal employees take the oath. 39 U.S.C. Section 1011.

The oath of the President of the United States is in the Constitution: “I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Emphasis added.

Justices of the U.S. Supreme Court take two oaths. First, they take the same oath as every officer in the U.S. government (above). Second, they take the Judicial Oath: “I, ________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God. 28 U.S.C. Section 453.

Emphasis added.

In Kentucky, Section 228 of the Kentucky Constitution requires “Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of _______ according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.”

Emphasis added.

If you aren’t in Kentucky or you don’t work for the United States government, think about the oath you took in your state.

As an attorney, the oath you took requires you to (at least) support the Constitution of the United States.

How often do you think about it? Are you doing it?

Are you supporting the Constitution of the United States?

And note that these questions apply to everyone employed in any government-related job. I say this because if you are employed in any government-related job, you took an oath.

And that oath requires you to (at least) support the Constitution of the United States. Just like everyone from the President on down.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

I’ve been getting some questions about what I mean when I talk about my areas of law practice — Cash Flow, Conflicts and Compliance. And what those areas mean to business owners.

This post will explain the law — Cash Flow, Conflicts and Compliance — as it applies to business owners.

Looking to the Past
When we have an existing legal problem (a problem that arose from past events), we usually call a lawyer to fix it. This type of solution often requires litigation.

If we are the plaintiff (the person doing the suing), litigation is unpleasant. We are spending time, effort and money to fix a problem we wish had never been a problem.

If we are the defendant (the person being sued), litigation is unpleasant. We are spending time, effort and money to respond to a problem we wish had never been a problem.

Business litigation usually falls into three broad categories: Cash Flow, Conflicts and Compliance.

Cash Flow: someone owes us money and we need the money to keep our business alive (we are the plaintiff). Or someone is suing us for money they claim we owe (we are the defendant) but we feel we don’t owe them anything.
Conflicts: someone violated our rights or breached a contract and we want compensation (we are the plaintiff). Or someone is suing us for what they claim we did (we are the defendant) but we feel we aren’t liable.
Compliance: a regulatory or other government agency is interfering with the operation (or existence) of our business and we want them to stop (we are the plaintiff). Or a regulatory or other government agency is suing us for money they claim we owe, or they claim we violated some rule or statute (we are the defendant) but we feel they are wrong.

So litigation is unpleasant for both the plaintiff and the defendant. The only ones who win are the lawyers — they get paid for “fixing” the problem(s).

I’m not saying anything bad about lawyers, the courts or the American legal system. The American legal system is a zero-sum game — there is a winner and a loser. It’s how the system works.

Avoiding the Past and Being Ready for the Future
Since litigation is unpleasant for both the plaintiff and the defendant, why not avoid it before it becomes necessary?

Cash Flow: If we know our Cash Flow needs — the money we need to keep our business alive — we can set our pricing and payment terms. We will know where we are and where we are going (or will be) in the future. Then we will know the terms we need in our contracts. This helps us avoid
Conflicts: If we anticipate and plan for conflicts (among staff, with customers and clients, with vendors and with competitors) we can avoid Conflicts before they arise. We won’t be distracted from the purpose of our business. If we position our business to avoid conflicts, we will stay in
Compliance: Tax codes (federal, state and local) and regulatory agency rules (federal, state and local) are a “necessary evil” for business owners. Staying in compliance is critical to the long-term health (or existence) of any business. When we know the law(s) and rule(s) that apply to our business, we will know how to stay in Compliance. Then we will avoid interference from regulatory or other government agencies.

Litigation looks to the past — it “fixes” things or events that already happened.

When we change how we see our businesses.
When we plan for Cash Flow, Conflicts and Compliance.
When we look to the future.
Then we won’t have to “fix” things or events that happened in the past.

We will be ready for the future.

This is what I mean when I talk about my areas of law practice — Cash Flow, Conflicts and Compliance. And what those areas mean to business owners.

Your Business Lawyer will help you with Cash Flow, Conflicts and Compliance. As you network for your business, take some time and find a Business Lawyer you like and trust.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

I have been reading and hearing comments about the status of our rights. Since 9/11, everyone has increased awareness and concern for public safety.

The media and our elected representatives have created tension between our liberty and our safety. So I am writing this long post to give you a quick primer on the subject. Then you can make a more informed decision as to your choice.

Yesterday’s issue of the Lexington Herald Leader reported findings from a McClatchy-Ipsos poll. “The survey found 51 percent of Americans agreeing ‘it is necessary to give up some civil liberties in order to make the country safe from terrorism.’ ”

And today, CNN has a report from London, England. I am reprinting the full text so you know I’m not “Cherry Picking.”

The British government said Wednesday it will appeal a European court ruling that certain police stop-and-search powers are a breach of human rights.

Under Section 44 of Britain’s Terrorism Act 2000, uniformed officers may stop any pedestrian or vehicle and search them, regardless of whether they have reasonable suspicion of wrongdoing.

Human rights groups complain the rules are subject to abuse, but the British government calls the powers an important tool in the fight against terrorism.

British Home Secretary Alan Johnson said he was disappointed in Tuesday’s ruling by the European Court of Human Rights in Strasbourg, France, because the appeals had previously gone through the British courts and been rejected.

“We are considering the judgment and will seek to appeal,” Johnson said in a statement. “Pending the outcome of this appeal, the police will continue to have these powers available to them.”

London’s Metropolitan Police said that because of sensitivity and concerns about use of the stop-and-search powers, they are only being used at “pre-identified significant locations” like landmarks, tourist sites, and crowded places, or where certain police operations are taking place.

The case began in September 2003, when police stopped and searched two British nationals who were on their way to a London demonstration.

Kevin Gillan was on his bicycle and wearing a backpack when police searched him. He was allowed to go after about 20 minutes, the court said.

Pennie Quinton is a journalist who was on her way to cover the demonstration when police stopped and searched her, the court said. Police ordered her to stop filming even though she showed her press cards; the official record of her search said she was stopped for about five minutes, though she says she thought it was closer to half an hour.

Gillan and Quinton complained that the police use of the stop-and-search powers under Section 44 breached the European Convention on Human Rights — specifically their right to liberty and security, right to respect for private and family life, freedom of expression, and freedom of assembly and association.

The case reached the Law Lords, Britain’s highest court, but the Law Lords dismissed the appeal in March 2006 because they said they weren’t convinced the police search disrespected the plaintiffs’ private lives.

Even if the search did not respect the plaintiffs’ private lives, the Law Lords found, the procedure was in accordance with the law and was proportionate to counterterrorism efforts.

Gillan and Quinton then appealed to the European Court of Human Rights, which heard the case in May and issued its ruling Tuesday.

“It’s fantastic news after a long struggle,” Gillan said, in a statement issued by the human rights group Liberty, which took the case to court. “I look to the government for a strong response.”

Said Quinton, in another statement issued by Liberty, “There has to be a balance between private life and security. The court has shown that Section 44 is an invasion of people’s right to liberty and privacy.”

The court found that the “coercive powers” of the anti-terrorism legislation amounted to a clear interference with the right to respect for private life. This interference was compounded by the public nature of the search, because it brings an element of humiliation and embarrassment, the court found.

Legal safeguards were not adequate enough to curb the wide discretion police had to use the powers, the court found. It said that wide discretion was a cause for concern.

“The officer’s decision to stop and search an individual was one based exclusively on the ‘hunch’ or ‘professional intuition,’” the court wrote in its decision. “Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required even subjectively to suspect anything about the person stopped and searched.”

Because officers have no obligation to show a reasonable suspicion, it is “almost impossible to prove that the power had been improperly exercised,” the court said.

As a result, the court said, the stop-and-search powers were not in accordance with the law.

Liberty called on the British government to ensure that Section 44 is only applied when authorities believe it is necessary to prevent terrorism. It should be applied to specific areas and for not longer than 24 hours, Liberty said, which would prevent authorities from applying the measures on a rolling basis and over large parts of a city.

Liberty also called on the government to publish notice that authorization for Section 44 has been given.

Here in the U.S. we (should) look to our Constitution to understand our choice between liberty and safety. The Fourth Amendment of our Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There is much confusion about what the Fourth Amendment means. It is commonly referred to as the Search and Seizure amendment. To help reduce the confusion, here is an excellent overview of The Current Structure Of Search And Seizure Law. I redacted some portions for brevity. The link above will take you to the full text (so once again you know I’m not “Cherry Picking.”)

The current structure of search and seizure law
Search and seizure law today is built around three key questions. First, did the police “search” or “seize” anyone or anything? If not, the law leaves police action basically unregulated. If so, what justification must the police have—probable cause, reasonable suspicion, or (in rare cases) something else? Finally, what process must the police follow—must they seek permission in advance from a magistrate, or can they search first and defend themselves in a suppression hearing later?
The definition of “search” and “seizure.” The most important of these questions may be the first one, for if a given police tactic is not a “search” or “seizure” within the meaning of the Fourth Amendment, the police are free to use that tactic when and on whom they wish, free of legal constraint.
“Searches,” in Fourth Amendment law, are police tactics that infringe a “reasonable expectation of privacy.” A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. A fair translation of this standard might go as follows: Police can see and hear the things that any member of the public might see and hear, without fear of Fourth Amendment regulation. Only when police cross that line, only when they see and hear things that members of the public would not be allowed to see and hear, has a “search” taken place.
A few examples might clarify the standard. Eavesdropping on telephone conversations is a “search.” Overhearing a conversation on the street is not. Climbing over a backyard fence is a “search.” Observing the same backyard from the window of an airplane is not. Hiding in the bushes outside a house and looking inside is a “search.” Standing on a public street and looking through open curtains into a living room is not. Opening a briefcase to inspect its contents is a “search.” Observing someone carrying a briefcase on the street is not.
…
One other feature of the definition of “search” bears mention. Consensual transactions are not “searches,” even if consent was given under false pretenses. … Also, if a police officer asks permission to look in a suspect’s car or briefcase, and the suspect says yes, once again no “search” has taken place. This last point is particularly important. Police officers exert a certain amount of force just by virtue of their status. For many, perhaps most, a request from a police officer will sound like a command; the tendency will be to say yes whether one wants to or not. Nevertheless, if the police officer asks, and the suspect says yes, that almost always amounts to consent. Only if the officer behaves unusually coercively—if he pulls his weapon, or grabs hold of the suspect, or the like—will a court find that the consent was involuntary.
All these rules sound complicated; in practice, they are relatively simple. In general, the police are “searching” when they are either committing some kind of trespass—grabbing a suspect’s briefcase and looking inside, breaking into a house or apartment, climbing over a backyard fence—or are engaged in some kind of electronic eavesdropping—for example, wiretapping a phone. Most of the rest of what police do to gather information falls outside the Fourth Amendment.
“Seizures” are harder to define. The Supreme Court says that a suspect has been “seized” if a reasonable person in the suspect’s shoes would not feel free to leave. If the Court took its own language seriously, every conversation between a police officer and a citizen would be a “seizure.” After all, few people, when approached on the street by an officer, feel free to turn on their heels and walk away. The consequences of that position would be huge; the police would need some adequate justification for every interaction.
Not surprisingly, the law does not operate that way in practice. The working standard seems to be roughly the same as the standard for consent. The dispositive question is this: Did the police officer behave coercively (not counting the coercion that is inherent in a police officer questioning a suspect)? If so, the encounter is a “seizure.” If not, it is not. ….
Probable cause and reasonable suspicion. When the police have searched or seized someone, the Fourth Amendment requires some justification. With rare exceptions, the justification takes one of two forms: either the police must have probable cause, or they must have reasonable suspicion. The following paragraphs explain what these standards mean, and to what cases each standard applies.
Probable cause has never received a clear definition in the cases; the Supreme Court has said, unhelpfully, that an officer has probable cause to arrest when “the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed” Brinegar v. United States, 338 U.S. 160, 175–76 (1949). What that means in practice seems to be, roughly, more likely than not. Thus, probable cause to arrest requires enough information to show that the suspect probably committed the crime. Probable cause to search requires enough information to show that evidence of crime can probably be found in the place to be searched.
…
Like probable cause, reasonable suspicion is not well defined in the cases. Indeed, the only thing one can confidently say about it is that reasonable suspicion means something less than probable cause. Just how much less is unclear. A good indication of the kind and level of information required is the following common fact pattern. A police officer, on foot or in his car, turns a corner on a city street in an area known as a locale for drug trafficking. A young man standing on a street corner sees the officer, turns, and runs in the other direction. The officer knows nothing about the young man other than that he was in a place where crime was common, and that he ran when he saw the police. Does the officer have reasonable suspicion?
In Illinois v. Wardlow, 120 S.Ct. 673 (2000), the Supreme Court said the answer is yes. Likewise, if police see a suspect in a place where drugs are often sold, and if the suspect has a series of brief conversations with people the police know to be drug users, most courts would say the police have reasonable suspicion. In these cases the police have some ground for suspecting criminality, but not a great deal. Reasonable suspicion is meant to capture that intermediate condition.
To what cases do these standards apply? Probable cause is the governing standard for arrests, and for searches of homes, cars, or personal effects. For arrests, the standard is probable cause to believe the suspect has committed a crime; for searches it is, with one important exception, probable cause to believe evidence will be found in the place sought. The exception is for searches “incident to arrest.” When the police make a valid arrest, they are permitted to search the suspect’s person, any belongings he has with him, and his car; if the arrest occurs at home, they may search the area within his immediate control. These searches incident to arrest are legal if the arrest is legal. Thus, probable cause to arrest authorizes not only arrests but also a good many searches.
Reasonable suspicion is the governing standard for brief stops, as where an officer detains a pedestrian for a few minutes or pulls over a car in order to ask the driver a few questions. Reasonable suspicion of the presence of a weapon is the standard for very brief searches, such as a pat-down or frisk of a suspect’s outer clothing. In practice, reasonable suspicion of the presence of a weapon tends to follow from reasonable suspicion of criminal activity. At least for serious crimes, judges tend to find that suspicion of the crime entitles the police to frisk the suspect in order to detect any weapons. The officer is, of course, entitled to check the contents of the pockets if this frisk turns up anything that might be a weapon. Naturally, the line between lumps that might be weapons and lumps that might be evidence of crime (drugs, for example) is a fine one. As a result, frisks for weapons tend to turn into frisks for either weapons or evidence.
The authority to frisk, or conduct a brief search, based on reasonable suspicion extends beyond the suspect’s clothing. If the suspect is in a car, the officer is entitled to briefly look through the car’s interior. If the suspect is carrying a purse or briefcase, the officer can briefly look inside, long enough to ensure that it does not contain a gun. And any evidence the officer finds during the course of such inspections is admissible.
Thus, given reasonable suspicion, officers can briefly detain pedestrians or pull over drivers of cars. Given reasonable suspicion of the kind of crime often associated with weapons, officers can briefly look around the car’s interior, frisk a suspect’s outer clothing, and open any containers (such as a purse or bag) that the suspect might reach to check for weapons. More extensive searches and seizures require probable cause.
…
The role of substantive law. Probable cause and reasonable suspicion both refer to a level of probability, a likelihood that some asserted fact—the suspect committed a crime, or evidence of crime will be found in a particular place—is true. The asserted fact always involves crime. It follows that the meaning of probable cause or reasonable suspicion depends on what counts as a crime. To put it another way, to say that the police have probable cause to arrest a given suspect is to say they have reason to believe that the suspect probably violated some criminal statute. Whether the claim is right depends in part on just what behavior criminal statutes forbid. If enough criminal statutes forbid enough conduct, the police will have probable cause to arrest a large portion of the population.
Something much like this was true before the late 1960s. Loitering statutes made it a crime to hang around on street corners; vagrancy statutes made it a crime to be able-bodied but unemployed, or to be a “rogue” or “vagabond.” These open-ended prohibitions plausibly covered a large fraction of ordinary street behavior, at least by people the police might wish to arrest or search. Consequently, the police had something close to blanket authority to arrest or search a large portion of the population. The probable cause standard mattered little.
In the late 1960s and early 1970s, most loitering and vagrancy statutes were declared unconstitutional on the ground that they were unacceptably vague. States and cities responded with a wave of statutes and ordinances criminalizing loitering with intent to commit acts of prostitution or drug use; some jurisdictions went farther, passing laws forbidding loitering in the presence of members of gangs that themselves were involved in various sorts of criminal activity. In Chicago v. Morales, 119 S.Ct. 1849 (1999), the Supreme Court struck down one such law, declaring that it was, like older loitering and vagrancy laws, too vague, and that it infringed on individuals’ liberty to wander about on public streets free of official interference.
Morales was not a Fourth Amendment decision; the Court relied on the due process clause of the Fourteenth Amendment instead. But the Court’s decision may have a large impact on the scope of Fourth Amendment protection. Again, if “crime” covers enough territory, police will have reasonable suspicion or probable cause with respect to most people, and Fourth Amendment standards will, as a practical matter, cease to operate. Morales may suggest that, at least with respect to pedestrians, the Court will not permit that state of affairs to recur.
The story is different when it comes to automobile traffic. In many states, moving violations—speeding, changing lanes without using a turn signal, running a stop sign, and the like—are, technically, crimes. Since such rules are not strictly enforced in most places (to the extent that speeding is the norm on many roads), most drivers are, technically, committing crimes most of the time, which gives the police authority to stop a large fraction of drivers.
That authority can be exercised strategically. If police believe a given suspect is transporting drugs, but they lack the kind of support needed to satisfy the probable cause or reasonable suspicion standards, they can wait for the suspect to run a stop sign, or speed, or violate some other traffic regulation, then pull the suspect over, arrest him for the traffic offense, and search him and his car incident to the arrest—all the while looking for drugs. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that this sort of pretextual police search is permissible. As long as the police have probable cause to believe the suspect is doing something the state defines as a crime, an arrest is legal, and if an arrest is legal, so is a search incident to arrest.
Whren and Morales are thus in some tension. Whren gives police near-blanket authority to stop vehicles; Morales seems to forbid near-blanket authority to stop pedestrians. In both cases, the primary determinant of the scope of police authority is not Fourth Amendment law, but the law that defines crimes.
…
Two problems
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Privacy. The dominant focus of the law of search and seizure is protecting privacy. “Privacy” here has a particular meaning—it is not some generalized right to be let alone; rather, it is the interest in being free from observation, the interest in not being seen or heard. That the law protects privacy in this limited sense is shown by the cases that define “searches,” which cover only police conduct that permits officers to see or hear things that ordinary citizens would not be able to see or hear.
Notice that the interest in liberty receives less protection. Searches of private homes require probable cause and a warrant. Probable cause, with no warrant, suffices for an arrest outside the home—even though an arrest can lead to detention in the police station. The interest in being free from police violence receives, if not less protection, less attention, which may amount to the same thing: The number of excessive force claims brought against police officers is but a small fraction of the number of suppression motions based on allegedly illegal car searches.
The law’s focus on privacy sits uncomfortably together with its focus on regulating the police. Administrative agencies like the Internal Revenue Service arguably invade people’s privacy more than the police—think about the kinds of information people must supply on their tax forms. If one really wished to protect privacy, then, a natural way to do so would be to regulate with some care what questions the IRS can ask and how it can ask them. Yet Fourth Amendment law has almost nothing to say about those topics. At the same time, it has a great deal to say about questions like when the police can inspect the inside of a paper bag, or look inside the glove compartment of a car—trivial privacy invasions, one might think, compared with tax forms. In other words, search and seizure law protects privacy, but only when the police infringe it. That seems an odd way to protect privacy.
And protecting privacy may be an odd way to regulate the police. Police do two things that other government agents—grand juries, prosecutors, or administrative agencies—do not. Police arrest people, which means removing them from their homes and locking them up. And police beat, sometimes shoot, people as a means of obtaining and maintaining control over them. If one were to imagine a body of law whose goal was specially to regulate the police, one might expect that law to focus on those two things: on regulating police ability to deprive suspects of their liberty and, perhaps especially, on limiting police ability to injure or kill suspects. Fourth Amendment law does some of that. But it focuses more on privacy interests, on searches of homes and cars and paper bags, and less on other, perhaps more important goals.
Race discrimination. One of those goals might be to eliminate police discrimination on the basis of race. African Americans suffer a disproportionate share of arrests and prison sentences. Much of that disproportion flows from differences in crime rates across population groups, but some of the disproportion may be a consequence of discriminatory targeting of suspects by the police. Perhaps surprisingly, Fourth Amendment law does little to stop that sort of discrimination. Given the breadth of criminal law, police have probable cause to arrest or reasonable suspicion to stop a large portion of the population—when it comes to vehicular traffic, a large majority of the population. Within this pool of potential suspects, police can target whom they wish; Fourth Amendment law basically says nothing about their exercise of enforcement discretion. So if police officers stop large numbers of black drivers, ostensibly for speeding but primarily to check for drugs, and stop few whites, the black drivers have no legal claim.
This is true notwithstanding the fact that a number of courts forbid the use of race as a factor in police “profiles.” Such profiles are common in drug investigations; they basically list factors common to drug couriers in particular markets at particular times. Officially, race is a forbidden factor, but officers can easily take race into account without acknowledging that they do so, and for now, the law tolerates that.
Another form of potential discrimination involves the targeting of some kinds of crimes, and some neighborhoods, more severely than others. In the late 1980s and early 1990s, urban crack markets received more police attention than suburban markets in cocaine powder. Most crack defendants were black; most cocaine powder defendants were white. One could argue that the strong tilt against crack was, on balance, a good thing; one could also argue that it was socially harmful, in part because of the racial composition of the two pools of defendants. Whichever answer is right, the current law of search and seizure leaves the question wholly to the police.

Too many of us forget the first three words of the U.S. Constitution – We The People. We forget that it’s up to us as citizens to take an active part in our government. We forget it’s up to us as citizens to make informed decisions who we will vote for and why we are electing the person we’re voting for.

So if you have read this far, here are your two choices:

(1) Do you choose liberty? Do you choose to exercise the freedoms given to you by our Constitution? Do you choose to become active in your government? Do you choose to educate yourself so you can make informed decisions?

Or

(2) Do you choose safety? Do you choose to rely on your elected representatives to choose for you? Do you choose to allow others to control your liberty in the name of your safety?

As you read and think about this, remember what Benjamin Franklin said: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

When should you call a lawyer?

It never hurts to call a lawyer. And it is the best thing to do when you have a legal problem you can’t resolve yourself.

To help you decide, ask yourself, “What’s at stake?” When your business or your rights are at risk, you should get legal help.

As I heard a judge say one day, “When you have a medical problem, you talk to a doctor. When you have a legal problem, you talk to a lawyer.”

How can you know when you should talk with a lawyer?

Think about it this way. If you can live with the worst-case result of the situation you probably don’t need to talk with a lawyer.

But sometimes you may not know or understand the worst-case result. Then you should at least talk with a lawyer. This way you will know whether you need help to resolve the situation. To save you money. Or keep you out of jail!

You can rely on your lawyer to explain your legal rights and protect your financial interests. Your lawyer will help you with business negotiations, strategies and contracts.

With good legal advice, you are better prepared to find your way through the complex maze of governmental rules and regulations.

You can also rest a lot easier after talking with an experienced lawyer for important business matters. Taxes, drafting business documents, negotiating business deals — even personal family matters.

How soon should you call a lawyer?

In many situations, it is obvious that you need to act fast. But be careful. Even when you think you have lots of time to act, deadlines can sneak up on you. And your lawyer will need time to prepare.

So it’s always better to start looking for a lawyer sooner than later.

For example, there are time limits on your right to file a lawsuit when you have suffered an injury to your person, your rights or your property. These are called statutes of limitation.
Statutes of limitation vary greatly from state to state and depend upon the facts and type of each case. In some instances, the law requires you to notify potential defendants about your claim within an extremely short period of time. Sometimes as little as a few weeks or months.

Another example. You may be angry for years over your neighbor’s activities and encroachment on your property. But if you wait too long without objecting or taking legal action, the law may give your neighbor the right to continue the encroachment. If you sit on your rights, you could lose them.

What are you trying to do?

The answer to this question is easy if you have been served with a civil summons or charged with a crime. Your goal in these situations is to keep your money or stay out of jail.

Other situations aren’t as clear. If you aren’t sure about your legal rights, it is worth your time and expense to hire a lawyer to review your situation and advise you on your choices. Even if you need to pay a few hundred dollars to consult with a lawyer, it could be a wise investment that ultimately saves you time and money.

Be realistic about your chances of winning and what your case is worth. If you aren’t sure, ask your lawyer.

What type of lawyer do you need?

Many lawyers limit their practices to certain types of law. Other lawyers handle a wide range of matters. You want to hire a lawyer who has expertise to represent you effectively with respect to your legal problem.

Knowing a bit about the law will help you become a smarter legal consumer. From administrative law to zoning and land use. From taxation to wage and hour law, your lawyer will help you make better decisions about your legal rights.

To protect yourself, call a lawyer.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

I just read the current issue of Louisville Bar Briefs (the newspaper of the Louisville Bar Association). Kentucky Supreme Court Justice Lisabeth Hughes Abramson talks about the job prospects for newly-admitted attorneys. The job prospects are not good.

This week I received more than one email talking about lawyers helping out at Pro Se divorce clinics.

And there is the never-ending request for attorneys to do Pro Bono work.

It seems to me the bar could combine these issues for the benefit of the public and newly-admitted attorneys.

Rather than asking experienced attorneys to help out at Pro Se divorce clinics and do Pro Bono work, the bar should be asking experienced attorneys to teach newly-admitted attorneys how to do simple uncontested divorces.

The new attorneys get to represent real clients and learn what it means to practice law. The new attorneys get hands-on experience in the courts. And people who would otherwise represent themselves are represented by real attorneys. All to the benefit of the public.

Seems like a win-win to me.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

I was watching a special on the History Channel about the Grand Canyon. How the Earth was Made — Grand Canyon

Mountains grow. They grow from volcanism or from plate tectonics.

When the mountains stop growing they begin to die. Wind and water erode them. As they erode they fill up the valleys at their bases.

Where there were once mountains and valleys there becomes a flat plain or plateau.

But the flat plain doesn’t stay a flat plain. Lakes form. The lakes overflow. When the lakes overflow they wash away part of the flat plain.

And the Colorado River does the rest.

The Grand Canyon is still growing.

That is nature. In nature, everything is either growing or dying. I didn’t make these rules. You didn’t make these rules. Nature made these rules.

For mountains, valleys, the Grand Canyon or the Colorado River the time period is millions of years.

For an adult mayfly the time period is (at most) 2 days. Mayflies Invade Minnesota For a microscopic life form the time period may be minutes or seconds.

What is the time period for your law practice? Is it growing? Or dying?

What did you do last week to grow your law practice? What are you doing today to grow your law practice? What are you doing tomorrow to grow your law practice?

Your business is either growing – or dying.

And the choice is yours.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

Growing your law practice takes what is euphemistically called “intestinal fortitude.”

It can be an uncomfortable experience.

It is uncomfortable because we must leave our comfort zones.

To break out of your comfort zones, Burn Your Bridges. Your comfort zones are created by the 3 bridges you have built:

1. The Bridge of Comfort

2. The Bridge of Hope

3. The Bridge of Reliance

The Bridge of Comfort
You built your Bridge of Comfort the first time you were successful in doing a task. You expanded this bridge each time you were successful in trying a new task. Each time you did these tasks and were again successful you reinforced your belief that you were good at them.
But when you did different or more challenging tasks and failed, you told yourself that those were things you couldn’t do. You told yourself that you found your limit. So you stopped pushing yourself into doing different or more challenging tasks. You stopped even trying. Staying on your Bridge of Comfort avoids those feelings of failure.

The Bridge of Hope
You built your Bridge of Hope the first time a client assured you that you had their case or matter. That you were the best lawyer they had ever met. And that money was no object in their relations with you.
The positive strokes you received made you joyful and you felt on top of the world. Even when you never got paid, you mentally and emotionally maintained the positive feelings you had when you were filled with hope by the client.
This causes you to practice law and go through your business life ever-ready to erect another Bridge of Hope:

• I hope my client gets her boss to approve my retainer to represent her company.
• I hope the interest rates don’t change since my client said that is the only factor which could blow the closing.
• I hope my prospect doesn’t change his mind. He seemed to have a doubt about whether he really wants to use my firm.

The Bridge of Reliance
Your Bridge of Reliance causes you the most trouble in growing your practice. You built your Bridge of Reliance when you discovered that servicing existing clients is easier than getting new clients.

So you began to rely on existing business. Staying on the Bridge of Reliance is comfortable.

But you must keep your eye on the status of your practice. You must keep your pipeline full of new prospective clients. Maintaining a focus of reliance on existing business will cause your practice to become stale. And when (not if) existing clients leave there will be nothing to replace them.

Prospects — your clients, your staff, your vendors and your business affiliates — move away, transfer, are bought out, reorganize, downsize, go out of business, and sometimes die. You have no control over such events.

Here is a simple suggestion to help you set fire to your Bridges and leave your comfort zones.

Make a written list of the prospects you know you should be contacting. Do it now. Take control of your practice. Take control of your life.

Keep the list with you and look at it throughout the day to keep you on track in making contact. As you make contact with a prospect, remove that prospect from your list and add another prospect.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

As attorneys we need to maintain a good outlook and attitude. And staying positive can be difficult.

If you are a litigator, when the telephone rings it is never good news. Plaintiffs don’t call when they have no complaint. Defendants don’t call and say “I haven’t been sued.” (Or arrested.)

Transactional practice has its pitfalls too. Clients wait too long before sending the documents or data you need. The “other side” suddenly discovers an issue no one thought about — which alters all the work you did to date.

And there is always the issue of getting paid.

What does this have to do with How You Look?

Answer: What is in our hearts and minds – shows. It doesn’t matter whether we are with a client, colleague, clerk, paralegal, intern, or in the courtroom. The attitude we display has a direct and proportional effect on our bottom line. And our effectiveness as attorneys.

So ask yourself “How Do You Look?” If you feel frustrated, angry, or you’re just having a bad day, it shows.

To fix it, smile. Laugh. Listen to or read something funny. Or inspirational. Pick something you know will bring you up. And keep it close at hand.

It is easy to Look Good if we remember to stay up.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry

PS This is all based on Neuro Linguistic Programming. Invest a little time in yourself to learn about it. Your investment will repay you many times over.