BadgerLawyer recently settled a modest personal injury matter for a client. The client received several thousand dollars as compensation for injuries he sustained in an automobile accident. But what is more important, because he came to BadgerLawyer and took advantage of out unique fee structures, he received several hundred dollars more than he would have from any other law firm handling the same case. When you are looking for a lawyer to handle a contingency fee matter, remember that the amount of the lawyer’s percentage makes a big difference in how much you ultimately get.  At BadgerLawyer, we keep costs down so you get more.

Chris

“Statute of Limitations” is a fancy word for deadline. It is the time limit on when you have to file a lawsuit following being harmed by another person’s conduct.  Here are some of Wisconsin’s more common statutes of limitations. There are more — I have a 600 page book of them!

contracts

6 years

defamation

2 years

fraud

6 years

injury to personal property

6 years

intentional torts

2 years

libel

2 years

medical malpractice actions

3 years from date of injury

medical malpractice action based on insertion of foreign object

1 year after discovery of object

minors

2 years after date of 18th birthday

negligence causing personal injury

3 years from date of discovery

open account for debt collection

6 years

oral agreements

6 years

personal injury

3 years

product liability

3 years

promissory notes

10 years

slander

2 years

written contract

6 years

wrongful death

3 years from date of death

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

The exception that ate the rule.

Suing the government ain’t easy. Since they are the government, they get to make the rules about who you can sue and under that circumstances. It should be no surprise that the rules favor the government. One example is governmental immunity. Even if a government agency or employee does something clearly negligent and causes you harm, it’s very likely that they will never pay a dime because they are immune from the lawsuit.

What is interesting is that the law says that immunity should be the exception and liability is the rule. In other words, if you are suing a municipality, like a city or a county, or an employee of a municipality, it shouldn’t be that hard, because the rule is that if they have done wrong, they should pay. Immunity is supposed to be an exception. For years though, government lawyers have been fighting for more and more immunity for local governments. Now, the rule is that any injury that is the result of an “exercise of discretion” is immune. So, if your injury arises out of a government worker making a decision, most likely you can’t sue them. Gee, when does so one do something that isn’t a decision?

Let me give you an example from a real case. A Wisconsin municipality needed to install a sewer drain. Someone at the municipality thought it would be a good idea to install the sewer drain pipe over top of a creek in a fairly populated area. As you might guess, almost immediately children started using the round pipe as a bridge across the creek. As you might also guess, round pipes are slippery and not safe to use as bridges. The municipality was warned about this danger (although one might argue that the warning was unnecessary since the danger was evident), and in response, the city put up a small fence to block the pipe. Almost immediately, vandals, again probably children, tore down the fence so that they could continue to walk across the sewer pipe. Rather than fixing the fence, or installing a fence that was harder to tear down, the municipality “decided” to do nothing. Eventually, someone fell and died.

This is a classic case of gross negligence. Rest assured, if you did something on your own property which attracted children to come and play on an inherently dangerous object and did almost nothing to stop it, you would be sued, and you would pay, when someone got hurt. But not if you’re a city. Because the city in this case “decided” to install the drainpipe over the creek, and because they “decided” not to fix the fence, they were immune from the lawsuit, because government entities are immune if they have caused harm as a result of making a decision, no matter how obviously bad the decision was.

It is difficult to imagine a scenario in which a government agency or its employ would not be found to be immune. After all, anything that a government does is based on a decision to do that thing, and anything that the government doesn’t do, is based on a decision not to do that thing. There is a decision involved in every action and inaction, so it is the rare case indeed where a government agency cannot claim immunity for its decision.

So where does that leave the law that says immunity is the exception? To me, that important legal principal seems to be just lip service these days to the idea that government should compensate the people it harms. Perhaps the government would like us to believe it follows that principle, but the truth is that government lawyers have worked very hard to keep the government from ever paying anyone a dime, no matter how negligently the city employees act.

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.

Okay, that’s a misleading title. This is not a post by some old guy ranting about how all you young folks are too loud all the time. No, the Badger is just fine with that.

What I hate is the disorderly conduct statute. The law that makes it a crime to engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to provoke a disturbance.

Perhaps you read this and wonder, what’s not to like?

Lots of things. This is a criminal statute. There are a lot of serious ramifications. Upon conviction, you can go to jail for 90 days and get a $1000 fine. If you get three of them, the penalties for most any additional criminal charge go through the roof (think, two years for a noise disturbance). If you get convicted, you’re a criminal and you’ll have to explain that on every job and professional license application for the rest of your life. Your name will appear on CCAP and everyone can read all about it. If you are going through a divorce or child custody issue, you’re a criminal, and also irresponsible, right? Couldn’t control your behavior and got all disorderly? And heaven help you if it was a domestic DC. Even a minor conviction for disorderly can haunt you in many ways.

But disorderly is also the least serious crime out there. If you represent yourself, very likely you went to visit the DA and were offered a fine if you pled guilty. That probably sounded good. After all, you did do what they said, and your behavior certainly fit into list above .. boisterous, profane, or if nothing else “otherwise disorderly conduct.”

And there’s why I hate this statute. Anything, and I mean just about anything, can fit within the definition of disorderly conduct. If you yell at someone, or grab something out of their hand, or whoop it up, or drop an F bomb in the wrong place, you could catch this charge. That gives an awful lot of power to the police — power they aren’t supposed to have — to pick on certain people they don’t like. And the statute to me makes it really hard to figure out what you can and can’t do. Maybe you want to stand outside the courthouse and yell about the bad job you think some judge is doing. That’s called protesting, but it’s also disorderly conduct. Knowing you might get arrested, are you still going to go tell the world what you think, or maybe are you going to let it ride?

I think the DC statute is unconstitutional, and I am sad that the Wisconsin Supreme Court disagrees with me. I believe in our right to free speech, press and association, and I don’t think we should be arrested for speaking our mind, even if there is an F-bomb in there. And I also believe the police should not have the subtle power to single out groups or individuals they don’t like and arrest them at random on some “otherwise disorderly conduct.” And the thing is, the Wisconsin Supreme Court agrees with me. They say well, people in prosecutor’s offices are sensitive to the Bill of Rights, so certainly those cases where the disorderly conduct is actually an exercise of free speech won’t be charged.

If only that were true. I see case after case where someone should not be charged with a crime but the DA and the police don’t want to let him go. So they throw a DC on him. And worse than that, I see lots of cases where people, including some with lawyers, plead out to the charges without ever challenging the constitutionality of their particular case. After all, it’s only a DC, right?

And that’s where I think the Wisconsin Supreme Court ought to reconsider the issue. While it is true that the courts are there to weed out the bad cases, the reality is that people can’t usually afford to hire some big gun lawyer to fight a lowly disorderly conduct. So people plead and get a fine. And prosecutors know that. And cops know that. So the fact is, it doesn’t matter what the learned Supreme Court has said about the way the law ought to be used, because that’s not the way it is used in practice. You can’t have a law so broad that anyone is a criminal and leave it up to the enforcers to decide. The law has to set the limits itself. Otherwise, we might all be too afraid to raise or voices in protest. And that’s why I hate disorderly conduct. The law needs to be re-written to make it clear what is criminal disorderly conduct, and what is us acting free.

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.