People think if they talk to the cops, they can help themselves out, especially if they are innocent.

WRONG!

You know your rights by heart. So you know “Anything you say can and will be used against you.” They don’t say “Anything you say will be used fairly to decide if you are innocent.”

If you want to know what “Used against you” really means, and if you want to see why you should never talk to cops, watch these two Videos:

Never Talk To The Cops, Part I

Never Talk To The Cops, Part II

For the most part, being convicted of a misdemeanor in Wisconsin won’t take away your right to own and possess a gun, so if you get into a bar fight, you can still hunt (unless you are on probation for it).  There is a federal law, though, that can jump in and interfere with those rights. Under federal law (18 U.S.C. Sec. 922(g)(9), if you’re interested), it is a crime to possess a gun (or ammo) if you are convicted of any state law “misdemeanor crime of domestic violence.” Federal law defines that as an offense that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” 18 U.S.C. Sec. 921(a)(33)(A)(ii). So a domestic battery would qualify, and a domestic Disorderly Conduct may qualify, because one way of committing D.C. is through violent acts.

On November 18, 2009, a federal appeals court decided the scope of this law as it applies to Wisconsin domestic misdemeanors. The case is U.S. v. Skoien, and you can read it here. Relying heavily on a Supreme Court case named Heller, the Skoien Court held that you do not permanently and automatically lose your Second Amendment rights upon a misdemeanor domestic conviction (like you do if you are convicted of a felony), but left open the question of whether those rights could be restricted in some manner. The implication is that the law needs to have some limits, which it currently doesn’t. The court does not say what those limits should be, nor does it rule on whether this law is or isn’t constitutional. Instead, it spends many pages explaining how some other court should decide the issue. That other court will be the district court in Madison. Once that court decides, the case may get appealed again, back to this court, to see if the decision was correct.  Until then, the law stands.

One suggestion for you though. This case stresses that the strongest part of your gun rights are your rights to self defense, so you might want to emphasize that aspect of it if you are confronted with a situation where you are asked to justify your possession of a gun.

Chris

“has, as an element,
the use or attempted use of physical force, or the threatened
use of a deadly weapon”

In Wisconsin Criminal Cases, “DRI” means Dismissed but Read In. It is important to know what this means if you are considering taking a plea bargain.  Let’s say you got into a bar fight and now have two charges, Disorderly Conduct and Battery. The prosecutor offers you a deal: plead guilty to the battery, and he will DRI the Disorderly. What does this mean?

For starters, it means you are found guilty of the battery because you plead to it. You could face up to a $10,000 fine and 9 months in jail. The Disorderly conduct will be Dismissed — that’s the easy part of DRI.  Once dismissed, it can never be charged again, meaning you can never be found guilty of it, ever. You can never be sentenced to jail for the Disorderly and you can never be fined.

Now for the “Read In” part. When a charge is read in, you are admitting it happened for the purposes of the sentencing in the case. While the judge can’t go over the 9 months jail on the battery, he can give you more jail than he would have had there been no disorderly conduct. So a judge might say, “I was going to give you 3 months on this battery, but because you also committed disorderly conduct, I am going to make it 4.” That is still under 9 months, but you got more because of the read in charge.

But it gets worse. If you get in trouble years from now and are convicted of something else, the judge can go back and look at your record and hold that battery against you again, for the same reason.  Although the passage of time dims the significance of any crime, the “read In” charge never goes away. Even though you were never convicted of it, it will continue to haunt you.

It is easy for attorneys to tell you not to worry about a read in charge. After all, it is getting dismissed, and that’s pretty significant. But you should be aware of the consequences of that DRI charge, because they do have the power to impact your future.

Chris

New rules relating to sentencing and probation revocation today, October 1, 2009. Most of these changes apply only to sentences or revocation filings that occur after today’s date.

Under the new rules, the Earned Release Review Commission (ERRC) will have the authority that used to be with the sentencing court to adjust a sentence of an inmate who has served 75 percent of a term of confinement for Class F to I felonies, or 85 percent of the term for Class C to E felonies.  Also new is Positive Adjustment Time that allows DOC to give credit for days served without rule violations and in compliance with the inmate’s programming.

Early release is added onto an inmates Extended Supervision (ES), otherwise known as parole.

The ERRC, rather than the sentencing court, will from now on consider petitions to reduce a sentence for an inmate with an extraordinary health condition, such as advanced age, infirmity, disability or a need for medical treatment or services not available within a correctional institution.

Inmates incarcerated for a misdemeanor or nonviolent Class F to I felony (except for sex offenders) will also be allowed to petition DOC for early release to ES if they are within 12 months of the end of their confinement time. DOC is to promulgate rules for determining whether bifurcated sentences should be modified under this provision.

If an inmate is revoked off ES, the length of their sentence will no longer be determined by the court. Now, the sentence will be determined by the Judge who did the revocation hearing, or if the hearing is waived, by DOC (probably the agent.) DO NOT WAIVE AN ES REVOCATION HEARING WITHOUT TALKING TO A LAWYER FIRST.

The Challenge Incarceration Program and the Earned Release Program are being expanded.

Chris

A common misconception about the law is that it’s pretty simple. People think that when they have disputes, courts are there to hand down the fair and right answer. Unfortunately, that is far from the truth. Achieving a fair resolution in a legal battle is a lot more complicated than that. The reason brings me to the difference between procedure and substance.

All lawyers learn in law school the difference between procedural law and substantive law. Put simply, substantive law is about the substance of your case: the facts, the dispute, the “why” you believe you deserve to win. When most non-lawyers think about a legal case, they only think about the substance.

Procedural law, on the other hand, is what non-lawyers often call “technicalities”. Procedural law is the millions of rules that govern how a case can be presented to a court. Some of these rules are very important and make a lot of sense, others not so much. For example, one very important procedural rule is based on the 4th Amendment of the United States Constitution. That rule says that if evidence against you was gathered illegally by the police, then that evidence cannot be used at trial to prove your guilt. When you hear in the newspaper that a “criminal” got off on a “technicality”, very often that technicality is the most important legal document in the United States.

On the other end of the scale, there are procedural rules that seem patently unfair and counterintuitive. For example, if you are injured by the action of a government entity, in most cases, you must file a document called a Notice of Claim with that entity within 120 days of the date of your injury. If you don’t make that deadline, and if your Notice of Claim document itself doesn’t comply with the myriad of additional rules governing those claims, you lose your right to sue entirely. All too often, people are injured by the negligence of a government agency, but don’t realize that they have a very short amount of time in which to file their claim. Imagine if you were seriously injured due to government negligence and were hospitalized. You could easily spend weeks and months recuperating, healing, dealing with work loss, figuring out how to manage your life while incapacitated, and so on. Thinking about suing the government is not the top priority on your list. By the time you do think about it, you have probably missed your chance. That’s an example of a procedural rule that seems to serve no real purpose other than to cheat you, a citizen, out of your right to sue the people who make the rules.

Unfortunately, there are a lot of procedural rules which can result in your case being thrown out, no matter how good the substance of your case actually is. Successfully winning a court case is kind of like trying to walk across a balance beam with American Gladiators swinging at you to knock you off. It really doesn’t matter how good your case is if you get slapped down by a procedural rule. Dealing with procedure is an important reason why a lot of people decide to hire a lawyer. So if you do decide to go it alone, be very careful about making sure you understand all of the rules that you have to follow to get your case to a successful conclusion.

Chris

Okay, so that’s a common question, and a tough one to answer. If you ask a lawyer at the beginning of a case how much it will cost, he will hem and haw and talk and theorize, but usually he won’t answer the question directly. People sometimes think lawyers are being evasive, but the truth is they just don’t know the answer. Trying to put a price tag on a legal case is like trying to predict the weather. You can guesstimate, but you just can’t predict everything the other side in a case is going to do, and when the other side fights more, it costs more.

Putting a price tag on a legal case is like asking “How much does a car cost?” Well, it depends. What kind of car? New or Used? Basic transportation or status symbol? Environmentally friendly or sporty? Utility or family? And on and on.

The reality is you can spend $500 on a car, and you can spend $500,000 on a car. How much car you get depends on what you want and what you need and what you can afford. You know that you get what you pay for, so you spend more even though that $500 clunker turns over. And, you’re financially responsible, so you don’t go out and buy a Beemer when a Ford or a Honda will do just fine.

It is the same with legal services. How much it costs depends on the case, depends on what you want to accomplish, and depends on how extravagantly you want it done. You don’t want to hire a bargain basement lawyer anymore than you want to buy a too-cheap car. It’s just gonna let you down. And you don’t need to hire a high end lawyer who will spend a ton of your money to accomplish the same thing as a good, reasonably priced lawyer can. What you have to do is first find a good lawyer who you feel will get the job done for you, and then work out a price. It may be that you accidentally walked into a BMW dealership when you were looking for a Toyota, or stumbled onto a used car lot when you really want new. You may not find the right lawyer at the right price on the first try. And you may find that you still can’t get a straight answer on what the case will cost. Lawyers don’t like guesswork, and some of them just refuse to try.

At BadgerLawyer, we believe in giving a customer a price tag up front. Once we evaluate your case and your goals, we will be glad to give you a quote on a one time, discounted up front payment that will carry you through the whole case. That gives you the peace of mind knowing that the business end of the arrangement is taken care of, so all you have to do is sit back and let us take care of the law for you.

Chris

And no, trial skills isn’t number one.

Let’s start with what a trial lawyer is. A trial lawyer is an attorney whose bread and butter it is to walk into a courtroom and effectively argue for the results his client seeks. It sounds simple, but there are a lot of skills that go into being a good courtroom lawyer, and what might surprise you is that most of those skills are more useful outside the courtroom. Here are what I consider to be the five most important skill areas for a good trial lawyer.

Issue spotting. The mark of a good trial lawyer is a person who can take the facts of a case and dissect them, identify every strength and reveal every weakness. Issue spotting is a creative process where a lawyer looks at the case from a number of different angles and discovers all the possible ways that he could put up a fight. When you are interviewing a lawyer about taking your case, watch his or her reaction to the story you tell. Does he start immediately throwing off ideas about how the case could be fought? Or does he immediately jump to why you are going to have to settle for a result you don’t like? The lawyer with ideas is the better issue spotter, and that lawyer will probably make a better trial lawyer.

Legal writing ability. Legal writing is an art form. Not one that many people find too enjoyable to read, but nonetheless, it requires skill, clarity, and a gift for being persuasive in writing. While any lawyer can throw facts on a page and cite cases they believe to be important, that’s a far cry from the ability to craft a persuasive document that is convincing to a judge who has probably heard it all before.

Negotiating. Most court cases that are ever filed end up in some kind of settlement. Civil cases end up with cash settlements. Criminal cases end up with plea bargains. Only a fraction of cases actually go to trial. That means it is extraordinarily important for your lawyer to have good negotiating skills. How much money you get, or how much time you serve, is going to depend more than anything on how persuasive your lawyer is at negotiating with the opposing attorney. A good negotiator is not just a lawyer who can see what is good about your case, he’s the guy who can see the weaknesses in the other side’s case and won’t hesitate to point those out to the opposing lawyer. This is often a very subtle process. “Trash talking” is only going to get the other side’s ego involved. Negotiation is like seduction. You have to learn to make the other side want to give you what you haven’t asked for.

Trial skills. Just like a police officer carries a gun that he doesn’t often have to use, a good trial lawyer has to have skill and confidence to take a case all the way through trial if you don’t get what you want through negotiation. A trial is a kind of theater, a sort of ritualized improv. Your lawyer needs to be able to act, think on his feet, speak well, assert dominance, and maintain focus. He has to know all the rules of the game, all the rules of evidence, all the facts of the case, all the rules of law, but never lose sight of the one single theme of his case. He has to keep track of a thousand things, while seeming calm and relaxed. Trial is not easy, and a lot of lawyers who do it for a living are not very good at it. Choose carefully. A lawyer with a big ego and a lot of charisma is probably your best bet.

Interpersonal skills. A good trial lawyer has to have good people skills, and I mean something more than just being a “people person”. A good trial lawyer needs to be able to effectively read the emotional tone of any situation and respond appropriately. In every day life, most people try to be “nice”. While a good trial lawyer should be a congenial person most of the time as well, there are times in legal matters that call for a tougher, harsher, aggressive, or confrontational approach. A good trial lawyer knows when to be tough and when to be kind, and is effective at both.

No doubt other lawyers would want to include other items on the above list. Good legal research skills, an ability to organize large amounts of information, strong investigative instincts, computer literacy, and so forth. While I would agree that the above list isn’t all of the skills necessary for a good trial lawyer, I believe that they are the most important. If you find a lawyer who is confident, friendly, and good at spotting issues, persuasive in speech and writing, and expresses an enthusiasm for fighting cases all the way through to trial, chances are you found a pretty decent lawyer for your case. If the lawyer you are talking to seems to be lacking in any of these major areas, it might not be a bad idea to consider looking somewhere else.

Let me know what you think. What skills do you think a good trial lawyer needs to have?

Here is a reprint from my recent article in La Crosse Magazine.

One thing I’ve noticed in recent years is that the law has undergone an enormous, but unnoticed, change. When I was a kid, a lawyer was somebody you hoped you’d never need, and you probably wouldn’t. Lawyers lived in high rise offices and “handled” “situations” for rich clients. The only time we common folk might need to visit a lawyer would be to see the local guy about a will.
My how that has changed. The skyrocketing rise in divorce rates has driven more than half of everyone who gets married into a long-term, expensive relationship with a litigation attorney. Decades of “toughness” on crime has lead to the criminalization of conduct that used to be legal, and now hardly a family hasn’t had a brush with the law. The growth in home-based and small businesses has led to literally millions of Mom & Pop LLCs that have a need for legal counsel, whether it’s just to make sure the papers are in order, or to defend the lawsuit if they aren’t.

Being a lawyer nowadays is a lot more like being a doctor or a dentist. Pretty much everybody is going to need a lawyer in a significant and ongoing way some time, probably several times, in his or her life. Given this fundamental shift in who needs legal services, you might think that law firms have drastically switched their approaches to how legal services are provided.

You’d be wrong.

If there’s one thing the law is, it’s traditional. To give you an idea, community property law – the law that divides assets in divorce – was invented by the Visigoths. For those who missed that history lesson, they’re the ones who brought Ancient Rome to its knees. So, change happens slowly.

Why? Lot’s of reasons. Lawyer regulations discourage change – we couldn’t take credit cards for most services two years ago. Lawyers by nature are a conservative lot – we’re afraid you won’t come to us if we don’t have expensive, traditional offices. Lawyers aren’t risk takers – it’s our job to worry about what would happen if everything went wrong, and that gets to you after awhile. Lawyers just don’t do change – our whole system is based on the law of stare decisis, legalese for “if it ain’t broke.”

But, the world is changing, and somebody has to be the first to jump. There ought to be ways to offer legal services with fee structures more friendly to the everyday person. If you, the prospective client, can accept a non-traditional (read: cheaper) office, the savings can be passed along. If lawyers could find a way to do what doctors already do – charge for specific services (e.g., an x-ray, a strep test) – instead of signing on for the whole case or not at all, you could buy only the legal services you needed.

In fairness, law is different from medicine or other professions. The law can ruin lives, like illness, but the law will let you represent yourself – try asking a surgeon to pass the scalpel. The law rarely offers a clear answer – “gray area” is our favorite word. It makes sense to have a lawyer for the whole case, most of the time, but it also makes sense, to me at least, to have a lawyer for just part of your case if that’s all you can afford. Isn’t some better than none? I don’t pretend to have all the answers, but I think we should start the discussion. Please join me and weigh in with your thoughts.

It’s easy to be in favor of being “tough on crime.” No one likes criminal behavior, and being victimized can range from annoying to life ending. So why not “lock ‘em up” ? But society also recognizes that we should have limits on what we do to those convicted of crimes. We don’t cut off the hands of thieves like in some countries, publicly torture people like in the Middle Ages, or execute people like in some other states. Criminal behavior, our society recognizes, doesn’t justify unlimited punishment. We have to stop somewhere. The question is where.

To make the question more complicated, there’s also the expense of punishing people convicted of crime. Your tax dollars keep the prisons open, and the more people courts put in prison, the more it costs. More and more people today are ending up on probation, which isn’t the get out of jail free ticket a lot of people think. Any violation of probation can result in revocation, and that means off to prison. That might sound easy, but probation has dozens of rules, including things like checking in regularly in person and random drug testing. For most people, that means having a car. Given that crime and poverty go hand in hand, it is no surprise that many probationers just can’t always get a ride. An it is usually a condition of probation that the offender have a job. In this bad economy, losing your job can equal a violation of the rules and off to the big house. In an ideal world, probation officers would be sympathetic people who understood the many problems faced by their clients, but POs are overworked, underpaid, and have too many cases to give much individual attention. What it comes down to is either you follow the rules or you don’t, and that isn’t always in your control.

In this tough economy, these kind of revocations, where no new crime has been committed, are increasingly common. We’re spending millions of dollars to put people in prison for not being able get a job or a car. I think it is time for us to re-evaluate our sentencing system thoughtfully, with an eye toward what we can do to save tax dollars while maximizing the rehabilitation of offenders. While it may feel good to get “pay back” by putting someone in prison for what they did, in the end that doesn’t do any good. It doesn’t help them learn how to lead a law-abiding life, it locks them up with hardened criminals, and it is the most expensive option available to the public. If a politician came up to you and said let’s spend the most money possible for the least possible payoff, you’d vote for the other guy. For three decades now, that’s what we’ve been doing, and it’s not working.

Related: Too many probationers sent back to prison

Chris

It’s no secret. Lawyers tend to be a little behind the times. The whole legal culture encourages us to look to the past for guidance on how the future should be. Much of the law we rely on was new over a hundred years ago. You might catch a lawyer referring to such law as “current.”

So, it will come as no surprise that these uber-modern inventions of the last century, computers, are the cause of controversy in the legal profession. Lawyers in the 90′s were still debating whether computers even belonged in a law office, and it’s not hard to still find lawyers who refuse to use them. I recently found myself engaged in a debate among lawyers about whether having two monitors was a good thing. Not where to get a good second one cheap, but ‘what’s the point?’ Even though computers have now “caught on” in the legal profession, the level of ignorance and lack of understanding among lawyers of technical matters is far greater than the general population.

Until fairly recently, this trait among lawyers could be written off as cute. A technophobe attorney could stumble through dictation and fumble with case law books, but still turn out a good brief. And his staff could tease him about it.

But computers in the law is no laughing matter anymore, and that is getting truer every day. A few years ago, I had a client facing 150+ years in prison in another state, because of charges of possession of 8 alleged child pornography photos on his computer in a zip file. If I had approached the case as a technologically ignorant lawyer, I could have none nothing more than shrug and help him into the handcuffs. Instead, I defended the case by making the legal argument that one zip file — a contiguous row of 1′s and 0′s — should result in only one charge, not 8. That reduced the mandatory prison to 19 years. Then, I dissected the Windows Temporary data, comparing the date the files were downloaded to the login information. Turns out the user was “Guest” at the time. Sure, my client could have logged in as “Guest” on his own laptop, but that was the first clue my client didn’t do it. Next, I considered the access and modification attributes on the zip file, and used those dates to establish alibis — times when my client was doing something else and couldn’t have been using his computer. That clinched it. A clear case of SODDI -Some Other Dude Did It.

Technology is now a part of everyone’s life in an amazing number of ways. We have ported our lives onto the internet to such an extent that people spend their time tapping into their phones how they are feeling 140 characters at a time. Businesses keep critical financial records online. Business employees send emails to one another that become an uncensored record of exactly what — and exactly when — people were thinking and feeling. If there’s ever a lawsuit, those emails can be demanded by the opposing side. My divorce investigator has software that a suspicious wife can install on the family computer to see who her husband is chatting with, and he can drop a tiny GPS tracker on his car too.

People live online. Computers record a lot of background data that can be very incriminating — or absolving. It is a rare legal matter today that isn’t impacted in some way by technology, and a lawyer who avoids technology, doesn’t speak that language, isn’t going to be able to represent his clients fully. Make sure to ask your lawyer about how your computer activities fit into your case.