August 25, 2009 – La Crosse County. Today Badger Lawyer defended a client charged with felony substantial battery and disorderly conduct arising out of a domestic situation. The significant facts were that both the defendant and the alleged victim had been drinking, and the alleged victim drank until she blacked out. There were a number of evidentiary issues including hotly contested hearsay issues, issues with chemical testing, and how to judge the credibility of the witnesses. A SANE nurse testified and was cross examined by Attorney Doerfler. The jury deliberated about 15 minutes and returned not guilty verdicts on both counts.

No offense to senior citizens, but if you’re reading this, you’re probably the child of a senior citizen (or younger). With any luck, Mom or Dad have a Will and an estate plan in place. Life will be so much easier if they do. Most elderly folks already have an estate plan of some sort in place, and that’s good. What’s not so good is that most of them did their estate planning 30 years ago, and a lot has changed in the meantime. If you have a parent who is facing end of life, talk to them about their estate plan. Make sure they have a Will. Make sure they have a way. A way to pass on knowing that they have put their affairs in order. A way to know that they have provided for those they have left behind in the manner that they hope to. A way to make sure their final goals are accomplished.

I know it’s hard to talk to people about end of life decisions. I do it for a living. What may surprise you, though, is that it’s a lot harder for you than it is for them. People know they’re going to die one day. The older they get, the more comfortable they get with that prospect. The easier it gets for them to talk about it, and the more thankful they are that the awkward silence about the topic is broken. That is not true for everyone, of course, and your mileage may vary, but in general, the hardest part of the conversation is starting it. It gets a lot better after that.

This conversation becomes even more important if your parent has an illness or an infirmity that might eventually impact their ability to think clearly, whether due to the illness, or to medications given to combat the illness. Remember that a Will needs to be written by someone of sound mind and body. That’s more mind than body. The sooner a person takes care of their estate planning needs, the better, because the more sound of mind the person is, and the further from their passing they are, the less likely that an estate planning document can be challenged in court. Estate planning is something that people really like to put off, because it’s not a pleasant topoic. But it’s one of those things that the longer it’s put off, the more difficult and painful it becomes when it finally catches up to you.

Badger Lawyer has a partner site, Willnation.com, that allows you to help your parent prepare estate planning documents in the privacy of your own home, or, if you live in the Western Wisconsin area, you and your parent can make an appointment and have the documents prepared in person by the same lawyer.

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

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

A lot rides on whether the offense you are charged with is considered a violent offense. Like whether you are eligible for Earned Release or if you can get your gun rights back. Here is a list of offenses in Wisconsin considered to be violent offenses under Wisconsin Statute 301.048(2)(bm)1:

1. 940.01-940.06 – Intentional, reckless, felony homicide; abortion

2. 940.08-940.10 – Homicide by negligent weapon, OWI car or gun, negligent car

3. 940.19(4) or (5) & 940.195(4) or (5) – Aggravated batteries (inc. unborn) w/ Great Bodily Harm

4. 940.20-940.203 – Battery by prisoner or to judge or to witness

5. 940.21 – Mayhem

6. 940.225(1)-(3) – First, second, third degree sexual assault

7. 940.23 – Reckless injury

8. 940.285(2)(a)(1) or (2) – Intentional or reckless abuse to at-risk person

9. 940.29 – Guard abuse of prisoner

10. 940.295(3)(b)(1g), (1m), (1r)2 or 3 – Abuse of patient w/ death or Great Bodily Harm

11. 940.31 – Kidnapping

12. 940.43(1)-(3) & 94.43(1)-(3) – Witness or victim intimidation w/ injury or force

13. 941.20(2)-(3) – Endangering safety by discharging firearm

14. 941.26 – Machine guns

15. 941.20 – Recklessly endangering safety

16. 941.327 – Tampering w/ household products

17. 943.01(2)(c), 943.011 – Damage to property of juror or witness or judge

18. 943.02, 943.04, 943.06 – Arson of building or to defraud or use of Molotov

19. 943.10(2) – Aggravated burglary

20. 943.23(1g) – Operate Motor Vehicle without Owner’s Consent by carjacking

21. 943.30 – Threat to accuse of crime

22. 943.32 – Robbery

23. 946.43 – Assault by prisoner

24. 947.015 – Bomb scare

25. 948.02(1) or (2) or 948.025 – 1st and 2d degree child sexual assault or repeated child sexual abuse

26. 948.03-948.0051 –Abuse, emotional harm, exploitation, trafficking of child

27. 948.06 – 948.07 – Child enticement; incest w/ child

28. 948.08 – Solicitation of child prostitution

29. 948.085 – Sex assault of child in substitute care

30. 948.30 – Child abduction

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?