Tag Archive | Law

NYT – Justices Weigh Freezing Assets Against Hiring Lawyers

By 
WASHINGTON — Kerri and Brian Kaley, a New York couple, were unable to hire a lawyer to defend themselves against serious criminal charges because the government had frozen their assets. That seemed to trouble several justices at a Supreme Court argument on Wednesday.
But it was not clear that a majority of the justices could agree on a way to address the couple’s situation without cutting back on earlier decisions or intruding into what a government lawyer insisted was the job of the grand jury.

The Kaleys were accused of participating in a scheme to obtain and sell prescription medical devices. They said they were likely to win at trial because no one had been harmed by their conduct, a point two justices seemed to find plausible.

The couple’s lawyer, Howard Srebnick, said the case posed a fundamental issue.

“I ask that this court not rule that the government can beggar a defendant into submission,” Mr. Srebnick said. “I ask this court not to rule that the government can impoverish someone without giving them a chance to be heard through their counsel of choice.”

But the relief the Kaleys actually sought was substantially narrower. They did not challenge the general framework established by a pair of 1989 Supreme Court decisions, which ruled that freezing assets before a criminal trial was permissible, even if it frustrated the defendant’s ability to hire a lawyer, so long as there was probable cause that a crime had been committed and the assets were linked to the offenses described in the indictment.

All the Kaleys were seeking was a hearing at which they could try to show that they were entitled to use their money to defend themselves because the charges against them were flawed.

Justice Antonin Scalia said he was uncomfortable with the modest step of allowing a hearing but might be open to a bolder one.

“To save your client, I would prefer a rule that says you cannot, even with a grand jury indictment, prevent the defendant from using funds that are in his possession to hire counsel,” he said. “Don’t need a hearing.”

Later in the argument, he proposed another solution. “I don’t like casting into doubt the judgment of the grand jury,” he said, “but why couldn’t we say that when you’re taking away funds that are needed for hiring a lawyer for your defense, you need something more than probable cause?” he asked. “Couldn’t we make that up?”

Michael R. Dreeben, a deputy United States solicitor general, responded that earlier decisions by the court had ruled out that approach.

Some justices tried to assess the practical consequences of allowing the requested hearings. Justice Elena Kagan said that defendants had never prevailed in any of 25 such hearings conducted in a part of the country that allowed them.

“So what are we going through all this rigamarole for,” she asked, “for the prospect of, you know, coming out the same way in the end?”

Chief Justice John G. Roberts Jr., who emerged as the Kaleys’ primary defender, said those statistics were only part of the picture.

“Who knows how many hundreds of times the government would have sought to seize the assets but didn’t because they knew they would have to justify it at a hearing?” he asked.

Mr. Dreeben said that grand jury findings of probable cause often serve as a basis for jailing a defendant until trial. It followed, he said, that such findings may also serve as the basis for freezing tainted money.

Chief Justice Roberts rejected the comparison. “It’s not that property is more valuable than liberty or anything like that,” he said. “It’s that the property can be used to hire a lawyer who can keep him out of jail for the next 30 years. So the parallels don’t strike me as useful.”

Mr. Dreeben said that requiring hearings could allow defendants to have an early look at the government’s evidence, put prosecution witnesses at risk and frustrate efforts to pay restitution to crime victims.

Chief Justice Roberts jumped on the last point. A hearing, he said, could also establish whether there had been any victims, a question in dispute in the case, Kaley v. United States, No. 12-464.

http://www.nytimes.com/2013/10/17/us/justices-weigh-freezing-assets-against-hiring-lawyers.html?_r=0

A Good Article Regarding Lawyer Fees from “Above the Law”

I have in my office a framed print of the classic New Yorker cartoon: “You have a pretty good case, Mr. Pitkin. How much justice can you afford?” I often find myself referring to the cartoon when talking to prospective clients.

For one thing, the joke is a light-hearted way to broach the subject of fees. This can be a difficult or awkward subject, yet it is critical that prospective clients understand the fees involved in a representation. Whether you are handling a matter on a contingent fee, a flat rate or hourly basis, or otherwise, clients need to know that nothing comes for free. If you can’t have a frank and detailed discussion about your fees and expenses, you inevitably will have trouble collecting. For lawyers who are opening a new solo or small firm practice, understanding the perils of working for free is one of the hardest but most important lessons to learn.

Tom Wallerstein

The joke also is helpful because many clients appreciate a lawyer who is self-deprecating and doesn’t take himself too seriously. I have found that acknowledging the negative stereotype of lawyers, and why the stereotypes justifiably exist, is helpful to gaining a client’s trust. Rather than tiptoe around the elephant in the room, I prefer to expressly acknowledge the profit incentive I have whenever I recommend a certain course of action. I like to think that gives me more credibility. “Yes, I am recommending a strategy that is going to cost a lot of money in legal fees over the next several months. Here’s why I believe that strategy is in your best interest….”

Although most sophisticated clients know better, others can’t help but distrust all lawyers as greedy con-artists. A lawyer who recognizes and appreciates this stereotype is better positioned to allay client fears by confronting them directly. Clients understandably worry that they’re going to get ripped off. I acknowledge that and explain to clients what steps they can take to ensure they don’t get overbilled by me or any other lawyer. Those steps only go so far, however, and ultimately the client has to trust the lawyer in what I call the “look you in the eye” moment, or moment of truth.

The joke’s phrase “how much justice” also invites a discussion about how justice is relative. Every litigation client wants to win, but they don’t always immediately understand that winning is relative. I find it helpful to talk to the client about what winning really looks like in the matter at hand. For a civil defendant, winning might mean a dismissal of the complaint with prejudice. Winning might mean a reasonable settlement. Winning might even mean a judgment for plaintiff, but for less than a certain amount or upon certain acceptable conditions. Winning might mean deferring resolution for a certain amount of time.

Finally, the joke is helpful in leading a discussion about how there often is more than one viable strategy for handling any given matter. The serious point of “how much justice can you afford” is that different strategies, and desired outcomes, require different budgets. The joke is funny because it obscures the relative nature of “justice.” In reality, it is appropriate to ask “how much do you want to spend” when considering the strategy and result you want to try to obtain.

Even obtaining the best case result — for example, a dismissal with prejudice — entails a cost in terms of time, energy and fees. Maybe you collect or maybe you pay. But since it costs a lot to win, and even more to lose, clients need to carefully consider their strategic options by carefully weighing their choices. We chuckle, but I find it helpful to ask, “how much justice can you afford?” Clients seem to appreciate it when I acknowledge that it might not make sense to win the case at a cost that exceeded the prospective liability. In other words, “we can win, but it would cost you more than it would cost you to settle.” Clients generally don’t like hearing that, but they do appreciate the candor.

I’ve explained before that I try

to work closely with our clients to understand their goals, their tolerance of risk, and their budget constraints. We urge our clients at all times to consider their exposure, risk of loss, and attorney fees they will incur to achieve their goals. Our case assessments necessarily consider these factors, as do our strategic recommendations.

Sometimes clients will respond to that by pushing back and insisting that they want to win “at any cost.” “Tell me the cost, I can pay,” they proclaim. To that, I usually joke “music to my ears!” Again, I hope that acknowledging my own economic interest helps build trust.

Rather than leaving no stone unturned and pursuing an undefined victory at any cost, client-centric firms can instead recognize that justice is relative, and always comes at a price. They can contrast their approach with a sometimes predictable Biglaw litigation model. Too often, firms follow a rather consistent litigation playbook. They insist that the first step in every case is always to gather and review every conceivably relevant document, often with a team of junior attorneys. They insist on propounding kitchen-sink discovery, obtaining and reviewing every conceivably relevant document from the adversary, again billing every step of the way.

Admittedly, especially in high stakes cases, this may well be the right approach. But not always. More creative firms and boutiques sometimes have more flexibility in designing litigation strategy. I’ve written before how they can sometimes capitalize on this by exploiting their adversary’s predictable litigation formula.

Attorney jokes will never go away, thankfully. As a profession, we certainly deserve them. But attorneys who are willing to view the world through the eyes of their clients can gain trust simply by asking, “how much justice can you afford?”

http://abovethelaw.com/2013/07/how-much-justice-can-you-afford/

Alabama’s Self Defense Law and Stand Your Ground Law

With the trial and then verdict in the case of George Zimmerman there has been a lot of discussions about the law of Self Defense.

In Alabama the Self Defense law has been modified to give people more rights to protect themselves, their home and other people.  We have a “Stand Your Ground” provision in the law. The provision states that “ is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person… ”  the criteria is listed in the law below.  The law goes even further and states “a person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.

Presumption and immunity are a strong words and are a strong defense if every charged with a crime or sued, but the law has carved out several areas that the presumption and immunity are lost.

They are:

The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used

The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity;

The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties;

The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.

This law is very strong if determined the use of force was justifiable, but that does not mean a person will not be charges with a crime, just gives the person a strong defense. You will need to get a lawyer who will aggressively use the law before it gets to the trial stage.  I have had several case where a client was charged, but by invoking the law, the charges were either dropped or did not come out of the grand jury.

Know the law, know your rights and make sure you hire an aggressive attorney if you find yourself in this situation.

13A-3-23. Self-defense — Defense of others.

  • (a)  A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
    • (1)  Using or about to use unlawful deadly physical force.
    • (2)  Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
    • (3)  Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.
    • (4)  In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:
      • a.  The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
      • b.  The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
      • c.  The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
      • d.  The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.
  • (b)  A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
  • (c)  Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
    • (1)  With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
    • (2)  He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
    • (3)  The physical force involved was the product of a combat by agreement not specifically authorized by law.
  • (d)  A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
  • (e)  A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

Eyewitness Identification across racial lines

Eyewitness Identification has come under scrutiny in the last few years, with studies and DNA proving many eyewitness testimony is wrong.

Courts are wrestling with how to ensure juries understand that the eyewitness testimony can be flawed, regardless how much the witness believes her or she is telling the truth.

The Supreme Court of Washington State ruled this week that trial courts can give juries instructions regarding the reliability of eyewitness accounts especially when the identification is of a person of a different race.

From the Seattle Post
“Summarizing problems with the state’s case also acknowledged in the lead opinion, dissenting Justice Charles Wiggins opined that prosecutors offered “barely any evidence corroborating the identification.”

Underlying it all is the basic problem that white witnesses are not very good at correctly identifying black suspects. The reverse is also true, as are the other iterations of cross-racial identification.

At trial, Allen’s defense attorney asked that among the directives given to the jury would be an instruction noting that cross-racial identifications are especially difficult. Both proposed instructions noted that the problem exists in circumstances where a witness is not prejudiced and has extensive experience with people of other races.  The judge declined to give such an instruction to the jury. Allen was ultimately convicted of felony harassment and sentenced to 14 months in prison.

This is the shocking part of the court’s ruling

Reviews of exonerations based on new DNA evidence show nearly 80 percent of wrongly convicted criminal defendants were found guilty because of faulty eyewitness identifications, according to studies cited by the dissenting justices. Forty percent of all DNA-based exonerations cases involved cross-racial identifications; nearly all of those – 36 percent of all exonerations – involved white witnesses misidentifying black defendants.