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

Choosing a lawyer is one of the most important decisions you may ever be forced to make. No really, I’m serious. It’s probably not something you’ve spent a lot of time thinking about, but the minute that you realize that you need a lawyer, chances are very good that something dramatically bad has happened and you are in dire need of help. Who you pick will have big impact on how your life goes from that point forward. I once had a very organized client send me a list of questions that I thought was very thorough and insightful. So, here the questions are, along with my answers to them.

1. How many years have you been practicing law?

I received my law degree in 1997, so as of this writing, almost 13 years.

2. What types of cases do you usually take on and what types of cases do you feel most passionate about?

I am primarily a litigator. That means I go to court and argue on people’s behalf, write briefs and motions, take depositions, interview witnesses, and put together cases to try to a jury. Litigation can take many forms, from criminal litigation to divorce and family law to bankruptcy. Litigation can happen in Federal Court and State Court and Municipal Court. I am comfortable in all of these venues. As for what I feel most passionate about, that’s a tougher question. What I really enjoy is helping people, so whether it’s a run of the mill case that I’ve handled a hundred times before, or an intricate, complex civil suit that presents a host of new issues, if I feel like I’m really able to help a person, that’s what makes me smile.

3. What percentage of your cases have settled out of court and what percentage have gone to trial?

Most cases settle out of court. That’s just a fact of life. If every case went to trial, we’d need a thousand times more courts than we have now. I would, however, characterize myself as an active litigator, meaning I’m not afraid of the court room and in fact feel some kind of exhilaration in going to court and making my case. I enjoy the courtroom the way I think some people enjoy bungee jumping. To me, it’s a huge rush. So, if I have a client that wants to go to trial, I am more than happy to accommodate. That being said, I will always advise my client on the options available to them, through settlement or trial. Sometimes a person wants to go to trial, but the better course is a favorable settlement. Ultimately I leave it up to my client, but I’ll make sure my client is informed.

4. Do you prefer to negotiate and settle or fight it out in court?

In a word, yes. In every case I do all of these things. I always negotiate the best possible settlement that I can get the other side to offer, and if it isn’t good enough I fight the case in court. I don’t look at negotiating and fighting as opposites. I see negotiation as the first step for fighting it out in court. The two proceed together, and if you can’t reach the settlement you want, you simply go to court.

5. Will you represent me if I deicide to appeal the trial court’s ruling?

Absolutely, unless you decide to hire someone else. I am as comfortable and skilled in the appellate courts as I am in the trial court. I’ve handled several appellate cases and won some fairly major ones. I feel that my clients get a cost savings when they appeal through me because I’m already familiar with the case and the issues involved. There are reasons why you might need to switch lawyers for an appeal, and I always provide that information before they decide to appeal with me.

6. What expertise can you bring to my case?

I’ve spent my entire legal career focusing on the art of litigation. I’ve spent years as a criminal defense attorney. I’ve worked in a giant civil litigation law firm. I spent a few years specializing in only complex and unusual litigation cases. My expertise is in the elaborate chess game that is a court case. Starting from the initial and strategizing, all the way through negotiation, argument, motions, and eventually trial, I’ve spent my career learning to be adept at posturing a court case for maximum benefit to my client.

7. Will you personally handling my case?

As of right now, yes I will. If you hire me, you’ll get me. I do have assistants and paralegals who also may work on your case, but I supervise everything that goes on in my office. Our office is in a growth period right now, and it is possible that other lawyers may come to have primary responsibility for some cases, but it is my ongoing commitment to my clients to personally supervise everything that goes on.

8. Do you truly have the time to take on my case and give it your full attention?

I don’t take on a case unless I have the time to devote to it. This would be a good time to point out that there’s another question lurking within this one. The only thing a lawyer has to sell is his time, so it is also true that how much time a lawyer has to spend on a case may depend somewhat on how much money a client wishes to spend on the lawyer. In an ideal world – think O.J.’s $14 million defense – a single client can keep an entire law firm busy for 3 years without needing a single other client. O.J. absolutely got the undivided attention of his lawyers. Most people, though, have to share their lawyers with others. I always try to ask my clients what their budget is and then I try to explain to them how much legal work they can get with that budget. I work out with my clients a plan of action that fits within their budget and maximizes their goals.

9. How will we meet from time to time?

I’m willing to meet with clients in almost any fashion that they are comfortable with. I’m happy to have client’s sit with me in my office. But I’m equally willing to consult over the phone or e-mail. I even have a Facebook account for my clients and we can send private e-mails there.

10. When can I next expect to hear from you and how will you update me about my case? What is your preferred method of communication?

Court cases don’t happen along a set schedule. Sometimes things happen very quickly, and other times a couple of months can go by where nothing happens. As a general rule, anytime something even marginally significant happens, I will let you know. This is particularly true if you have an e-mail account so that I can jot off a quick note to you. I will also copy you on all but the most insignificant documents in your case, particularly if you’re able to accept them as a scanned e-mail. One of the important lessons that I learned in law school was that the chief complaint people have about their lawyers is lack of communication. I’ve always made it my policy to avoid that trap.

11. How can I contact you when I have questions or concerns or emergencies?

I’m happy to receive your phone call or your e-mail or your Facebook message. I give my clients my cell phone. The only limit I set on communication is that I don’t answer the phone when I’m sleeping. I will however return your call promptly, usually within 24 hours, although sometimes I am exceptionally busy and it takes longer.

12. May I request copies of all correspondence you send or receive on my behalf? Will you automatically send correspondence to me? Electronically or through traditional mail?

The answer is yes, if you request all copies of correspondence sent and received you will get them. Obviously, however, the more you ask of a lawyer, the more expense you will incur. As a general rule (and usually at no charge) I will send along any correspondence I feel is significant or important to my clients. If my clients are willing to accept those electronically, I prefer to send it that way because it’s instantaneous.

13. What do you expect of me as your client?

This is maybe the best question anyone’s ever asked. How you interact with your lawyer can have a big impact on how your case turns out. I prefer my clients to be honest with me about their goals and about the facts of their case. It’s helpful if the client is realistic about what’s possible and also self-aware about their own foibles. Patience is a virtue and I always appreciate clients that understand that legal action takes time. Trust is also important, although I don’t expect it to be given without being earned. A lot of times things happen quickly in a legal case and there isn’t time to full, consult with one’s client before action has to be taken. I need my clients to trust in my skill and judgment and to believe that I understand what they need, so that if I have to do something quickly for them they can feel okay with that.

14. What can I expect from you as my attorney?

I care a whole lot about doing a good job. I can’t promise perfect results, nor can I guarantee you’ll get exactly what you’re hoping for. But you can expect me to get the very best that I can give. It is my personal philosophy to listen closely to what my client’s goals are and to try to accomplish those goals. I like to do legal research, so I work pretty hard to uncover any possible avenues of success that might be available in any case. I treat each case as unique and I will custom design the strategy for each and every one. You can expect me to be available to answer your questions, particularly if you use e-mail. You can expect me to be on your side, because that’s my job.

15. Do you work on retainer? Is there an hourly rate? What happens when my retainer runs out?

There are a number of different ways that lawyers accept fees. For some services lawyers will charge flat fees. For others they bill by the hour. I am open to structuring a fee agreement to meet my client’s needs. I will usually inquire of my client what their budget is and try to come up with a litigation plan that fits within their budget. In some of my cases, I work on an hourly basis. In others I work on a single fee basis. Every case is different, and some cases I can’t do on a flat fee basis, and some cases aren’t appropriate for an hourly billing. But I’m willing to talk to my clients about what their needs are and what their budget is and try to work out an arrangement if there’s any way at all to do it.

16. What hourly rate will you charge when I call or e-mail with your staff? Are there any hidden costs I should be aware of such as filing fees or additional costs related to photo copies or travel?

You can speak to my staff for free. The only exception would be if you were working on something with a paralegal. You might incur paralegal billing for that. I don’t charge for photo copies unless I have to send the document out to Kinko’s, and then I just bill you what Kinko’s bills me. Some cases do have filing fees and I would pass those along.

As for travel, as I mentioned before, all a lawyer has to sell is his time, and time spent traveling on one person’s case is often time that can’t be spent on other cases. That being said, I do have a personal philosophy of trying to take other work with me when I’m traveling. For example, if I have to drive an hour to a court hearing, I will take my Dictaphone and attempt to dictate letters and memos while I’m driving so that I don’t have to bill the entire travel time to one client but can use the time productively. Also, it is my general practice not to bill people for short e-mails or phone calls, for example if someone is asking a simple question about when their next court date is or if a document is done yet. If a phone call or e-mail becomes substantive and I have to think about the response then I would bill for that.

17. Can I have a payment plan?

Yes and no. I like to work with people as much as possible to help them afford the work I do, but it’s important to understand that very often a legal case will wrap up quickly, with significant effort, before even a few payments are made. I hate to have to say this, but a lot of people will default on payments under those circumstances. It’s not like buying a car where the car company can repossess the vehicle. Once the work is done, it’s done, and if the client then doesn’t pay, there’s very little a lawyer can do about it. So, I try to balance the situation. What I typically ask for is a significant amount of retainer up front, although I do not necessarily require a deposit sufficient to cover the entire case. Once the deposit is made, I will then allow the person to make payments. I try to structure the payment plan so that it coincides with the anticipated work in the case. In other words, so the fee is paid by the time the case is done. In other situations, where the legal work is not urgent, I may ask a person to make payments until a sufficient retainer is posted, and then proceed with the work. The most important thing to take away is that I will try to work with people, as long as people try to work with me.

If you have any additional questions, please post them on this blog and I will try to answer them.

Chris

If you are facing criminal conviction, or have previously been convicted, the Wisconsin sentencing laws are going to be important to you. The laws have recently changed dramatically. The State Public Defender has produced 4 YouTube videos to help lawyers understand the changes. I share them with you here.

Part 1: Review (10:10)

Part 2: Positive Adjustment Time (9:33)

Part 3: Risk Reduction Sentences and Changes to Bifurcated Sentence Modifications, Earned Released Program and Challenge Incarceration Program (5:01)

Part 4: Early Probation and Extended Supervision Release, Changes in Reincarceration, Expunction and other statutes (6:32)

Chris

Or, When is a Punishment Not a Punishment?
As everybody knows, when you are convicted of a crime you get a punishment. Your punishment can be a fine, jail time, or probation. But as everyone also knows, there are other consequences of being convicted of a crime that have nothing to do with the punishments that are on the books. In law, we call these “collateral consequences.” Here is a sampling of some very significant collateral consequences that can arise from a criminal conviction. If you are faced with a crime, you should be aware of these potential collateral consequences before you enter a plea. If you are representing yourself, the prosecutor is never going to discuss these with you, so they may come as a surprise once it is too late. A good reason to have a lawyer in a criminal case is that a defense attorney will consider collateral consequences in trying to shape a result for you.

Civil actions. Most of the time, crimes have victims. When a person is a victim of a crime, something wrong has been done to them. In our society, when someone wrongs you, you are allowed to sue the person who wronged you for money damages. Very often, the commiting of a criminal act also exposes the person to the potential for civil damages. When you plead guilty, that basically serves as an absolute admission for the purposes of a civil case as well. If you think you are facing a possible civil action arising out of criminal conduct, entering a no contest plea might help protect you somewhat, but you should explore the possible civil liability issues before entering any plea.

Immigration. The potential immigration consequences for a criminal conviction are vast and numerous. If you are not a natural-born United States citizen, you should seek an immigration opinion from an immigration attorney before entering any plea agreement. The immigration law is not consistent and very harsh. Even something as minor as a first offense possession of marijuana conviction could potentially lead to permanent exclusion from the United States. The immigration system doesn’t care if you’ve lived in the United States since you were 9 months old and have never known any other country. If you commit the right kind of crime and haven’t achieved citizenship, you may find yourself deported back to a place you never recall being. The criminal law, though, doesn’t consider this a punishment, just a collateral consequence.

SORNA Issues. SORNA stands for Sex Offender Registration and Notification Act. Despite repeated efforts by defense attorneys, being forced to register as a sex offender is considered a collateral consequence and not a punishment. This distinction takes on increasing dire consequences as every year both the state of Wisconsin and the Federal Government pass more laws to make sex offender registration required for more offenses and make the reporting and notification requirements even more onerous. This is a very confusing area. There are both Federal and Wisconsin requirements. The requirements are not consistent with one another. There is inadequate government implementation of both sets of requirements, so it is often difficult to register as a sex offender even if you are trying to do so. And, you can face criminal charges and prison time if you fail to register correctly. The laws are changing rapidly, and it is difficult to know what a person is supposed to do if they’re required to register. Moreover, offenses that once would not necessarily require a person to register are starting to be changed so that registration is mandatory. An example would be 4th degree sexual assault, which can be committed by touching someone on the buttocks in a bar over their clothes. In the past, it would be up to a judge whether the person who did that had to register. New federal law is changing that so probably that person is required to register for at least 15 years. Worse, the laws are retroactive, so the person who plead guilty to a 4th degree case in the past might now be required to register even though when he plead guilty he was told he did not have to.

Possession of Firearms. Most people know if you are convicted of a felony you lose your right to bear arms under Wisconsin law. Many people do not know that if you are convicted in a misdemeanor case involving domestic violence, you may also fall under Federal guidelines prohibiting firearm possession. The enforcement of this law is being stepped up. Now, even if you plead to a misdemeanor without a Domestic Violence label, the federal government will pull the criminal file and see if there was a domestic element to the offense. If there was, you would be denied the right to buy a gun. Even if it was just a disorderly conduct.

Right to Vote. If you are convicted of a felony, you lose your right to vote until you go through a separate legal procedure to have your civil rights restored.

People look. In Wisconsin, criminal convictions, charges, filings, dismissals –everything – is on CCAP. If you plead guilty to something, a future employer can look you up and see that you pled guilty. For that matter, a future employer, or boyfriend, girlfriend, buddy, teacher, anyone, can look up and see if you’ve even ever been charged. True, there are rules and laws prohibiting the use of that information against you in certain contexts, but how are you ever going to prove that you didn’t get a job because CCAP listed you as having once been charged with a drug crime? CCAP makes it very easy for people to look up what you have been convicted of, so it is important to consider that before deciding on taking a plea.

This is just a list of the main ways that collateral consequences can impact you if you are involved in a criminal case. There may be others that are particular to your situation. If you are in the military or have a stock traders or other professional license, a criminal conviction can have even more significant consequence. There are situations where if you are a student you may not be able to get student loans anymore. There are many different ways that a criminal conviction can impact your life, and before you enter into a plea which requires you to be convicted of a crime, you should research and consider all of the possible collateral consequences, or talk to an attorney who can help you.

Chris

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”

BadgerLawyer is starting a radio ad campaign on 95.7, The Rock. Yeah, that’s the music I listened to back when I was doing pipeline construction down in Georgia in the ’80′s. Have a listen!

BadgerLawyer this week secured dismissal for a client in a carrying a concealed weapons case.

Badger Lawyer has been preparing for months for a Burglary and Theft trial. We pushed. We prepared. We pressured. We thought up a dozen ways to win the case, but the one that happened we never saw coming.

A week before trial, the DA just up and dismissed the charges.  Poof.  Case over.

Now I’m kinda sad that I didn’t get to go to trial, because I do love trial and I was all ready for this one. But our client didn’t mind at all.

Only one trial still scheduled for 2009!

Chris

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

Here is my article in the November, 2009 La Crosse Magazine.

There was a time, not as long ago as you might think, when you couldn’t get a divorce.  Once you were married, you were stuck with your partner, for better of for worse. This is a short column, so I won’t get into all the reasons why divorce was restricted.  Suffice it to say, it was a bad time to be badly married. After centuries of couples enduring bad marriages, the pressure was pretty strong for change. And when it happened, it was dramatic. Think complete 180. Nowadays, instead of divorce being nearly impossible to get, all you have to do is want one. The legal term is “no fault divorce,” and it means you can get divorced if you want to, without giving any reason, even it your ex-to-be wants to keep trying.

So this sounds pretty good at first. No one should be forced to be in a relationship they aren’t happy with, right? Freedom, after all, is what America is about.

But there are downsides too. Most marriages have kids, and the near universal consensus is that divorce is bad for kids, emotionally and financially. Children of divorce are more likely to suffer in their schoolwork, have babies out of wedlock, live in poverty, and be incarcerated. Grim stuff. Divorce isn’t always good for the other spouse either, especially divorced women, who live in poverty in frightening numbers. The social and economic consequences of divorce are enormous. Some estimates state that over $100 billion in tax dollars are devoted to these issues.

On top of this, Wisconsin’s no fault rules have evolved from not just allowing no-reason divorce, but also no-blame property division. Lawyers argue vigorously that bad behavior during marriage – abuse, adultery, financial mismanagement, you name it – is irrelevant when determining the terms of the divorce settlement.  The law emphasizes equal division of property, which is not necessarily the same as fair division. While it is true that bitter fights over money and property won’t help mend a broken heart, too often equal division rewards the spouse who put in less effort or was less responsible in the marriage. Imagine a marriage where one spouse was hard working and the other ran up debts. In the divorce, the hardworking spouse gets half the debts, and the profligate spouse gets half the assets, and maybe some alimony. Or consider the marriage where one spouse has made significant sacrifices to support the other. Or one where one spouse has abused the other.  There is no question that the sacrificing or abused spouse loses in a 50-50 split, because that spouse almost always has a significantly limited future earning ability. An abused spouse usually hasn’t focused on her career, often because the abuser didn’t let her. Under the no fault system, though, as soon as you ask for additional compensation, you will be told that past abuse is not a factor in determining an equal division. But shouldn’t it be?

Some states are experimenting with modified no fault divorce rules that limit “walk-away” cases. Wisconsin is not one of them. The no fault idea has become so ingrained in Wisconsin’s legal community that there is strong resistance to unequal divorces, even when unequal means fair. The exceptions in the Wisconsin laws that allow for unequal distributions are as underused as the typical family’s treadmill. And trying to bring past behavior into the proceedings is frowned on, even though sometimes, to have a fair future, you have to look at the past.  Maybe Wisconsin should consider changes that rebalance some of the priorities in divorce? I’d like to hear your thoughts on the issue.