A new Supreme Court case came down upholding a Bush era law that changed part of the Bankruptcy Code. Here’s the backstory. If you think about it, if you are at the point of declaring bankruptcy, chances are you don’t have a couple grand to pay lawyer fees and court costs. In the day, lawyers would tell you to take the money off a credit card or some other lender to pay your fees, and include that debt in your bankruptcy. The Bush Bankruptcy changes in 2005 made that type of advice illegal, and a Minnesota law firm believed the law was unconstitutional, because it interfered with their Free Speech rights, among other things. The High Court today disagreed, and upheld the law.

So, if you need to declare Bankruptcy, I can’t tell you how to come up with the fees — at least not this way. If you want to read more, click here.

Chris

In 2005, the Bankruptcy laws were overhauled — for the worse in my opinion, because I represent the little guy. The changes were great if you are a Creditor — a bank or car lender. For those who work for a living and sometimes struggle to pay the bills, and sometimes need to declare bankruptcy, the 2005 changes were no good thing. The Supreme Court will soon be hearing a challenge to part of those changes, and may overturn them as unconstitutional.

For the whole story, click here.

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.

Until recently, when a home seller lied about or failed to disclose something critically wrong with the home you were buying, the go-to law suit was for misrepresentation. In a common sense way, that just seems right. After all, how else would you describe the seller except to say that he misrepresented the condition of the home? I mean, without making the kids cover their ears.

The Wisconsin Supreme Court recently ruled that something called the economic loss doctrine prevents lawsuits for misrepresentation in real estate sales. It’s not exciting stuff, but let me see if I can sum it up the court’s ruling. Basically the ELD (that’s the economic loss doctrine) says that where there’s a deal based on contract, tort-based lawsuits are not permitted for recovery of purely monetary loss. Torts are your standard personal injury type suits. Misrepresentation is a tort.

In the world of lawsuits, tort-based suits and contract-based suits are the two big players, rivals in some ways. The ELD protects contract law’s turf by saying look, if there’s a contract and one side doesn’t deal fairly, you should use contract law to solve the problem, instead of trying to use tort law to sneak around some of the limitations of contract law (no punitive damage, for example). Since real estate transactions are contractual, misrepresentation should be barred by the ELD. So held the court.

So are you out of luck if you’ve been lied to? Well, not entirely. Misrepresentation was popular because it tended to fit the facts in most cases, was easier to prove, and generally was the right tool for the job. But, as anybody who has ever driven a nail with a wrench knows, just because you lose your hammer doesn’t mean you can’t get the job done.

Until the legislature passes a law allowing misrepresentation – it’s in the works – here’s the tools you can use to pound the misrepresenting seller:

  • Breach of contract: You know all of those forms you sign when you buy a home? Those are contracts, and if the seller makes any promises in them that turn out not to be true, you can sue for breach of contract. A suit for breach only entitles you to recover what you actually lost due to the breach. Notably, breach is not a very strong suit to bring if no promise was made (i.e., they just failed to mention the demonic possession), because it is hard to breach a promise you never made. Sure, those contracts require you to disclose major defects, but then you get into an argument about what is major, and so on.
  • False advertising. If the seller makes misrepresentations about the very thing that is wrong, you may be able to pursue false advertising.
  • Theft by Fraud. You were lied to. The lie made you buy. The seller took your money. Now you are spending more money to fix what you were lied to about. Sounds a lot like a misrepresentation case, but it’s called theft by fraud. The trouble here is you actually have to prove the crime of theft to get to a recovery. Usually the facts are a little less egregious than that.

The upshot is you still have ways of getting a remedy if your seller has lied to you or failed to disclose a material defect. The best remedy, however, remains caution. Make sure you have a thorough inspection done. Read the contract carefully. Ask the seller questions. Consult a lawyer. Uncovering a defect before you close is a far better outcome than suing after the fact.

Read More: Home buying after Below: Navigating the Economic Loss Maze

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.

Everybody needs a will. No really, I’m not just saying that. If you go to the great beyond without leaving some kind of roadmap for the people who are still here, you are creating a mess for them that will only compound their suffering.

And if you are young — and you’re reading a blog so the odds are pretty good on that — it’s easy to think a will is something you can put off. But accidents happen all the time. And young people seem to be getting cancer and other deadly diseases more and more. Depressing I know, but you have to face it. Also, if you’re getting married or facing divorce, now would be a good time to make some estate planning changes.

One problem with getting a will is you get to visit a lawyer. Fun! Not to mention really easy to put off.

We’ve come up with a solution. In our ongoing effort to use the internet to make getting legal services easier, we’ve developed a way to get your will done cheaply, by a lawyer, without ever leaving the comfort of your pajamas. Visit our partner site:

WillNation

Like BadgerLawyer, WillNation provides tons of free information and an array of estate planning products you can buy from your own home. The way it works is, first, educate yourself. Second, make a deposit that goes toward your product. Third, download and fill out a comprehensive form in the comfort of your own home. Then just email it back to us.

We take it from there. We’ll call you and set up a time for you to consult with an attorney over the phone about your needs. Then we prepare the documents you want, and ship them out to you. Bam. You’re covered.

As part of our BadgerLawyer launch celebration, enter discount code “BadgerLawyer” on the form, and we’ll take 25% off the price of anything you buy. Also, at your request, you can meet your lawyer in person in La Crosse. If you want to change out of your jammies.

Can’t wait to help you!

Chris

I do a lot of work where there are “victims.” Whether it is a statutory crime victim, a spouse who has been abused, or somebody who wasn’t at fault in a car accident, there are a lot of people out there who get hurt by others. So, I’ve had a chance to think about what it means to be a victim.

Before I get to the controversial part of this post, let me just say this: I have the deepest empathy for those who suffer. No matter whether they suffer at the hands of others, an accident, illness or hunger. I’m too old to still want to change the world, but there you have it.

But here’s an insight about victimization that you may think sounds cold: many victims contribute to their own suffering. I know that sounds like heresy in today’s culture, but hear me out. What gets done to you, you cannot change. But how you react to it is entirely up to you. If you are hit by a car as you cross the street, you are going to feel two things: the pain of being hit by a car and the outrage that the driver was so careless. Both are natural. But I’ve met people who are still feeling that outrage long after the hurt goes away. They just can’t let go of the anger.

In my opinion, if you don’t let go, it’s just another way for you to let the person who hurt you keep hurting you. How do you let go? First, acknowledge and respect what was done to you. If it hurts inside, let it hurt for a time. Second, accept that you cannot change the past, and that no amount of anger or anguish will make the person’s behavior make more sense. Third, make a conscious decision to live your life despite what was done to you. Try to be the person you are on the inside, unaffected by what someone else did to you.

I’m not saying this is easy. It may take time and coaching — and don’t rule out therapy if the pain is deep enough. But if you can take steps to let go of the outrage, you will find yourself returning to happiness. And happiness is the kind of that makes the world — and your life — a better place.