I have been rather frustrated lately by the seeming inability of some attorneys to both represent their clients and just be nice people at the same time. Is that asking too much?
Indeed, I just got notice of an upcoming CLE entitled "Ethics & Civility in the Practice of Law: Can You Practice Civility and Be a Zealous Advocate?"
Honestly? You can get CLE credit for that? Does that seem silly to anyone else? I'm pretty sure I learned the answer to that question in first grade.
And it turns out that I'm not the only one who's noticed this trend (I don't give myself that much credit). Check out this article with video from the Wall Street Journal recently, in which a judge, in song, implores attorneys to play nicely with one another.
Showing posts with label Thoughts. Show all posts
Showing posts with label Thoughts. Show all posts
Tuesday, February 5, 2013
Monday, December 31, 2012
Wednesday, November 7, 2012
Law School -- Is It Worth It?
This week's Washington Post Magazine has a cover story entitled "Will Law School Students Have Jobs After They Graduate?" There's a rather simple conclusion (spoiler alert!): no. Probably the most damning indictment comes from Paul Campos, who has taught at University of Colorado Law School since 1990: "If the federal government applied any actuarial standards, half the law
schools would shut down tomorrow. The whole thing is a
basically a giant subsidy machine run for the benefit of legal
education."
Ouch.
However, the article investigates some tangential issues that are ripe for discussion:
- Can the cost of legal education come down?
- Can (and should) legal education be reformed to make it a more practical, trade school model in which students acquire hard skills rather than ideas?
- Should students be allowed to borrow the full amount if they have dim prospects careerwise?
- Should taxpayers be responsible for footing the bill if they can't pay off their loans in 25 years? (Under the current income-based repayment system, any amount not paid off by the end of 25 years is "forgiven.")
You can read Campos's year-and-a-half old blog, Inside the Law School Scam, for more of his scathing opinions.
Ouch.
However, the article investigates some tangential issues that are ripe for discussion:
- Can the cost of legal education come down?
- Can (and should) legal education be reformed to make it a more practical, trade school model in which students acquire hard skills rather than ideas?
- Should students be allowed to borrow the full amount if they have dim prospects careerwise?
- Should taxpayers be responsible for footing the bill if they can't pay off their loans in 25 years? (Under the current income-based repayment system, any amount not paid off by the end of 25 years is "forgiven.")
You can read Campos's year-and-a-half old blog, Inside the Law School Scam, for more of his scathing opinions.
Monday, October 15, 2012
Series: The Law In Our Lives
It's that time again, folks - moving time.
The way I figure it, I move on average once every year or so. Even though it's been a while since I signed a traditional lease, it shakes out to be more or less an annual task.
With this most recent move, I'm shifting back to the land of the traditional lease handled by a property management company, and I'm having scary flashbacks to my last commercial landlord. I had lots of closet space and a great location, but other than that, everything about that last commercial landlord was terrible. They didn't care about the tenants, they didn't close requested work orders (my bathroom faucet leaked for three years - three years - before they fixed it), they took terrible care of the building and made shoddy repairs when they made them at all (the poorly-caulked shower had leaked through to the living room wall on the other side, and they fixed it by painting over the mold!). Eventually, I just couldn't take it any more. I was the last of the tenants in the building who paid regularly and on time, and they ran me out. Probably not a wise business choice on their part, but they deserve what they have coming to them.
I'm getting nervous reviewing the application and lease documents for this new place. Missouri is a very, very landlord-friendly state; tenant rights are quite limited, even when that tenant happens to be an attorney. Everything is drafted in the landlord's favor, but the rental market is tight where I'm looking and if you fuss about their terms, you're out. So, just like all the other schmucks out there, I just have to sign on the line and hope for the best.
Fingers crossed that it's better than last time.
The way I figure it, I move on average once every year or so. Even though it's been a while since I signed a traditional lease, it shakes out to be more or less an annual task.
With this most recent move, I'm shifting back to the land of the traditional lease handled by a property management company, and I'm having scary flashbacks to my last commercial landlord. I had lots of closet space and a great location, but other than that, everything about that last commercial landlord was terrible. They didn't care about the tenants, they didn't close requested work orders (my bathroom faucet leaked for three years - three years - before they fixed it), they took terrible care of the building and made shoddy repairs when they made them at all (the poorly-caulked shower had leaked through to the living room wall on the other side, and they fixed it by painting over the mold!). Eventually, I just couldn't take it any more. I was the last of the tenants in the building who paid regularly and on time, and they ran me out. Probably not a wise business choice on their part, but they deserve what they have coming to them.
I'm getting nervous reviewing the application and lease documents for this new place. Missouri is a very, very landlord-friendly state; tenant rights are quite limited, even when that tenant happens to be an attorney. Everything is drafted in the landlord's favor, but the rental market is tight where I'm looking and if you fuss about their terms, you're out. So, just like all the other schmucks out there, I just have to sign on the line and hope for the best.
Fingers crossed that it's better than last time.
Monday, July 23, 2012
An Interesting Tax Quandary
Generally, it's not a good idea to fight battles with the IRS. However, I think in this case, the potential taxpayers have a good argument.
This New York Times article tells the story of the Sonnabend family. When Ileana, an art dealer, passed away, she left her children quite an extensive art collection worth approximately $1 billion, including a sculptural work called Canyon by Robert Rauschenberg. The kids have already sold off much of the art to pay the nearly $500 million estate tax bill, but they're now in a tiff with the IRS over Canyon.
The problem is this: one of the sculptural elements of Canyon is a stuffed bald eagle. Under The Bald and Golden Eagle Protection Act of 1940, it is illegal to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle ... [or any golden eagle], alive or dead, or any part, nest, or egg thereof."
Technically, Ms. Sonnabend's heirs are in violation of the Act by merely possessing the eagle, but they've gotten by with a wink and a nod from the U.S. Fish and Wildlife Service since the eagle was killed and stuffed decades before the Act protecting them was passed; the caveat is that the work must remain on public display, which it is (at the Metropolitan Museum of Art).
Whence the problem with the IRS, then? Since Ms. Sonnabend's heirs cannot legally sell the sculpture, it was appraised with a value of zero dollars. There is no market for it, hence it has no value. The IRS disagrees, and values the work at $65 million in "artistic value"; they are seeking almost $30 million from the heirs as a combination of taxes and penalties.
My verdict: no taxes, value of zero. Why? The work can never be legally sold in a fair and open market transaction, therefore has no dollar value.
I bet the insurance company would beg to differ.
This New York Times article tells the story of the Sonnabend family. When Ileana, an art dealer, passed away, she left her children quite an extensive art collection worth approximately $1 billion, including a sculptural work called Canyon by Robert Rauschenberg. The kids have already sold off much of the art to pay the nearly $500 million estate tax bill, but they're now in a tiff with the IRS over Canyon.
The problem is this: one of the sculptural elements of Canyon is a stuffed bald eagle. Under The Bald and Golden Eagle Protection Act of 1940, it is illegal to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle ... [or any golden eagle], alive or dead, or any part, nest, or egg thereof."
Technically, Ms. Sonnabend's heirs are in violation of the Act by merely possessing the eagle, but they've gotten by with a wink and a nod from the U.S. Fish and Wildlife Service since the eagle was killed and stuffed decades before the Act protecting them was passed; the caveat is that the work must remain on public display, which it is (at the Metropolitan Museum of Art).
Whence the problem with the IRS, then? Since Ms. Sonnabend's heirs cannot legally sell the sculpture, it was appraised with a value of zero dollars. There is no market for it, hence it has no value. The IRS disagrees, and values the work at $65 million in "artistic value"; they are seeking almost $30 million from the heirs as a combination of taxes and penalties.
My verdict: no taxes, value of zero. Why? The work can never be legally sold in a fair and open market transaction, therefore has no dollar value.
I bet the insurance company would beg to differ.
Tuesday, December 20, 2011
Opposing Counsel
If there's one thing I've learned so far practicing law, it's this: the attorney on the other side of a case has everything to do with what you can get done.
Really, it makes all the difference. The interactions between opposing counselors sets the tone for the case, affects the attitudes that the clients have, and has a huge bearing on one's ability to get things done. I can't tell you how many clients I have right now who just keep checking in with me to see if anything is going on. "No," I tell them, "I'm still waiting to hear back from opposing counsel."
And that's frustrating for me and for my clients. We make it a hallmark of our work to be responsive and act quickly. It would be nice to get the same in return. And sometimes we do! But all too often, it's more of the same: "I'll let you know when I hear something."
Really, it makes all the difference. The interactions between opposing counselors sets the tone for the case, affects the attitudes that the clients have, and has a huge bearing on one's ability to get things done. I can't tell you how many clients I have right now who just keep checking in with me to see if anything is going on. "No," I tell them, "I'm still waiting to hear back from opposing counsel."
And that's frustrating for me and for my clients. We make it a hallmark of our work to be responsive and act quickly. It would be nice to get the same in return. And sometimes we do! But all too often, it's more of the same: "I'll let you know when I hear something."
Friday, September 16, 2011
Making It On Your Own
On her My Shingle blog, Carolyn Elefant recently posted a question she got from a reader about how to grow a practice and succeed as a solo. One commenter specifically asked for suggestions from solos making at least six figures on a consistent basis.
I'm not going to lie to you: that's not me. I'm a new lawyer still finding my way. Further, I'm not a solo, but I do work at a small place - three attorneys, one assistant.
Given those disclaimers, I'll start out by responding to the comment posted by Leanna, all of which are things I've done, am doing, or have considered. Leanna suggests the following steps (my comments in white):
1. Getting really good and comfortable talking about money, asking for money, not giving free consults, and not negotiating on price. This is key.... This is a skill I'm still learning, but already I can see the importance of it. For me, it's all about expectation management. I try to give potential clients a realistic estimate of what their case will cost if we're billing hourly, or tell them up front what a flat fee of x-dollars will cover. We also handle our "retainers" (though we don't call them that) a bit differently than most firms. Look for an article about our process in the future!
2. Sending out a paper newsletter to all past clients and contacts.... We've done one postcard mailing (although it was before I started here), and it was hugely unsuccessful. All the calls we got were from people with imaginary issues or people with real issues who wanted a free lawyer. A newsletter is actually something I'd like to do, but I'm not sure of the best way to go about it and don't want it to be a huge time- and money-drain. Suggestions?
3. Networking in person. Not desperately, but to fill up to the hours when you'd just be sitting in your office reading [S]olo[S]ez or tweeting.... I'm sure Leanna is right that when she says that meeting people is better than sitting on your own. But where I run into trouble is in converting those meetings to actual useful contacts of some kind.
4. Cultivate your existing referral sources. These are the people who already know, like and trust you. Send them a thank you card for their past support of your business, remind them you are taking new clients in particular areas and think about what you might be able to refer to them. We don't really do the professional networking thing. We go to events, meet people, etc., but don't set up referral chains. Most of our referrals come from former clients, which is something we're proud of. Our clients are satisfied with the work we did, and feel that we gave them value for their money. What more can you ask for, besides more clients?
5. Clean your office and shine your shoes.... Funny you should mention that! I'm getting some bids right now on redecorating my office!
6. Screen your potential clients better[].... I think we do a pretty good job of screening clients. We ask them some questions when they call for an appointment so we can give them a good idea of what to expect. Some people will hear and estimated fee and decide they need to "think about it," and others will decide to come in for an initial consultation. And at least when they do, they know what to expect.
LegalTypist's comment that you just need to get involved in your community is probably the next suggestion I'd like to reiterate, and I'd like to stress the community aspect of it rather than the networking aspect of it. See, at most networking events, I tend to meet people who do something similar to what I do. Referrals from those folks will be few and far between. But when people at my local bookstore or teammates on a rec sports team hear that I'm a lawyer...well, there might actually be some business there!
And I'll follow that up by saying that you want to get involved in the type of community activities that will include people you'd like to have as clients. If you do IP work, get involved in some cultural activities - arts, music, and the like. If you do a lot of business law, maybe get involved with your local chamber of commerce. Seek out the people you want!
I'm not going to lie to you: that's not me. I'm a new lawyer still finding my way. Further, I'm not a solo, but I do work at a small place - three attorneys, one assistant.
Given those disclaimers, I'll start out by responding to the comment posted by Leanna, all of which are things I've done, am doing, or have considered. Leanna suggests the following steps (my comments in white):
1. Getting really good and comfortable talking about money, asking for money, not giving free consults, and not negotiating on price. This is key.... This is a skill I'm still learning, but already I can see the importance of it. For me, it's all about expectation management. I try to give potential clients a realistic estimate of what their case will cost if we're billing hourly, or tell them up front what a flat fee of x-dollars will cover. We also handle our "retainers" (though we don't call them that) a bit differently than most firms. Look for an article about our process in the future!
2. Sending out a paper newsletter to all past clients and contacts.... We've done one postcard mailing (although it was before I started here), and it was hugely unsuccessful. All the calls we got were from people with imaginary issues or people with real issues who wanted a free lawyer. A newsletter is actually something I'd like to do, but I'm not sure of the best way to go about it and don't want it to be a huge time- and money-drain. Suggestions?
3. Networking in person. Not desperately, but to fill up to the hours when you'd just be sitting in your office reading [S]olo[S]ez or tweeting.... I'm sure Leanna is right that when she says that meeting people is better than sitting on your own. But where I run into trouble is in converting those meetings to actual useful contacts of some kind.
4. Cultivate your existing referral sources. These are the people who already know, like and trust you. Send them a thank you card for their past support of your business, remind them you are taking new clients in particular areas and think about what you might be able to refer to them. We don't really do the professional networking thing. We go to events, meet people, etc., but don't set up referral chains. Most of our referrals come from former clients, which is something we're proud of. Our clients are satisfied with the work we did, and feel that we gave them value for their money. What more can you ask for, besides more clients?
5. Clean your office and shine your shoes.... Funny you should mention that! I'm getting some bids right now on redecorating my office!
6. Screen your potential clients better[].... I think we do a pretty good job of screening clients. We ask them some questions when they call for an appointment so we can give them a good idea of what to expect. Some people will hear and estimated fee and decide they need to "think about it," and others will decide to come in for an initial consultation. And at least when they do, they know what to expect.
LegalTypist's comment that you just need to get involved in your community is probably the next suggestion I'd like to reiterate, and I'd like to stress the community aspect of it rather than the networking aspect of it. See, at most networking events, I tend to meet people who do something similar to what I do. Referrals from those folks will be few and far between. But when people at my local bookstore or teammates on a rec sports team hear that I'm a lawyer...well, there might actually be some business there!
And I'll follow that up by saying that you want to get involved in the type of community activities that will include people you'd like to have as clients. If you do IP work, get involved in some cultural activities - arts, music, and the like. If you do a lot of business law, maybe get involved with your local chamber of commerce. Seek out the people you want!
Friday, August 5, 2011
Patent Wars
We don't do patent work, but there was a fascinating episode of This American Life a couple of weeks ago called "When Patents Attack." It's all about how the patent program, which was designed to spur innovation, has been subverted since its inception, and now hinders it. Patents are being used as both offensive and defensive weapons in a litigation war of mutually assured destruction.
Thursday, April 7, 2011
Facebook Users, Beware!
I'm not on Facebook (although our firm is). The more I hear about Facebook in the news, the more satisfied I am with my decision to abstain from use of the social networking site. Facebook isn't the only culprit; it's just the most ubiquitous.
The prevalence of social media has many benefits: we can keep in touch with our friends, get updates about sales at our favorite stores, and monitor the real-time progress of our hometown teams. Even start revolutions. But for all the information we take in, we also seem very free to put information about ourselves out there for others.
This "Facebook effect" has been growing as the popularity of social media in general has grown; for example, there was a story published in The Telegraph about Facebook and the divorce rate in the UK almost a year and a half ago to this effect. There was one published in Time magazine nearly two years ago. But those were just the tip of the iceberg.
As social media have proliferated, we're finding a whole new host of ways to get ourselves in trouble. According to an erroneously attributed Loyola University study and press release (cited here), Facebook is now being implicated in 1 in 5 divorces in the US (although the Wall Street Journal's Numbers Guy disputes that number). The situation is similar elsewhere; it's become the "virtual third party" according to a more recent article in Britain's Telegraph. If fact, St. Louis's very own Alisse Camazine was interviewed for a story by KSDK on the rise of social media in divorce cases.
Does Facebook really cause all these divorces? And whether it does or doesn't, what do you do with all this information? Here are my thoughts:
Facebook doesn't cause divorce. It may cause, or maybe enable is a better word, a lack of attention to one's spouse, the rekindling of an old flame, meeting new people (friends of friends), "harmless" flirting, and even affairs. Actually, enable may not be quite right either; all those things have been obstacles in the past. I think it's just that Facebook and other social media make doing them so much easier. Whereas before, people may have resisted because there was just too much inertia, now all it takes is a few clicks of the mouse. Since we're at our computers all day anyway, it doesn't seem like we're really doing anything wrong or scandalous or immoral or even questionable.
That, I think, is the real problem: our standards of behavior have not kept up with the changing technology.
The prevalence of social media has many benefits: we can keep in touch with our friends, get updates about sales at our favorite stores, and monitor the real-time progress of our hometown teams. Even start revolutions. But for all the information we take in, we also seem very free to put information about ourselves out there for others.
This "Facebook effect" has been growing as the popularity of social media in general has grown; for example, there was a story published in The Telegraph about Facebook and the divorce rate in the UK almost a year and a half ago to this effect. There was one published in Time magazine nearly two years ago. But those were just the tip of the iceberg.
As social media have proliferated, we're finding a whole new host of ways to get ourselves in trouble. According to an erroneously attributed Loyola University study and press release (cited here), Facebook is now being implicated in 1 in 5 divorces in the US (although the Wall Street Journal's Numbers Guy disputes that number). The situation is similar elsewhere; it's become the "virtual third party" according to a more recent article in Britain's Telegraph. If fact, St. Louis's very own Alisse Camazine was interviewed for a story by KSDK on the rise of social media in divorce cases.
Does Facebook really cause all these divorces? And whether it does or doesn't, what do you do with all this information? Here are my thoughts:
Facebook doesn't cause divorce. It may cause, or maybe enable is a better word, a lack of attention to one's spouse, the rekindling of an old flame, meeting new people (friends of friends), "harmless" flirting, and even affairs. Actually, enable may not be quite right either; all those things have been obstacles in the past. I think it's just that Facebook and other social media make doing them so much easier. Whereas before, people may have resisted because there was just too much inertia, now all it takes is a few clicks of the mouse. Since we're at our computers all day anyway, it doesn't seem like we're really doing anything wrong or scandalous or immoral or even questionable.
That, I think, is the real problem: our standards of behavior have not kept up with the changing technology.
Tuesday, March 8, 2011
FantasySCOTUS
Have you ever thought you'd do a great job as a Supreme Court Justice? See how you measure up.
Wednesday, March 2, 2011
More Legal Humor
Maybe it's the season: things are warming up a bit, the days are longer, spring is in the air. And I'm in a good mood. And so I (hope to) bring you so more chuckles. This is not remotely the best-designed website I've ever seen, but it sure is funny. Props to these attorneys for not being so darned serious all the time!
Monday, February 14, 2011
Wednesday, February 2, 2011
The Dangers of Texting While Walking; or Frivolous Lawsuits
Did you see the news story about the Fountain Lady? If you didn't, watch the video. Then listen to Anderson Cooper, who sums up my feelings about the Fountain Lady's lawsuit perfectly.
Thursday, January 13, 2011
"Law school is a pie-eating contest where the first prize is more pie"
Consensus seems to be building, and it's not in favor of the law schools. Many reports have been issued lately from a variety of sources, but they all make the same point: law schools sucker kids, charge too much, and don't produce results.
Graduate school appears to be a common solution to a slow economy. Since you can't find a job and make any money, why not borrow money and go into debt? Seems logical. The Law School Admissions Council and the American Bar Association reported recently that the number of hopefuls who took the Law School Admissions Test in October 2010 was the second-highest number of takers ever.
At the same time, law schools are raising enrollment and raking in ever more money in tuition, while finessing employment-after-graduation figures which mislead incoming and potential students, or so says columnist David Segal, who published a long and scathing critique of the whole system in the New York Times last week. It includes interviews with former students, professors, deans and other administrators, and representatives from the ABA and US News & World Report (famous for its controversial rankings). He accuses law schools and administrators of (among other things) being completely incapable of policing themselves, which is not a good sign in a profession that - ironically - relies primarily on self-policing for regulation and detection of ethics violations.
In a lot of ways, I think he's right. The rankings are a game, and administrators fudge the numbers so they can up their stats. But at the same time, anyone who enters a three-year graduate program knowing tuition is $40,000 per year has to know that they're going to graduate with at least - at least - $120,000 in debt. It's not rocket science. And that $120,000 figure is assuming the students' other costs (shelter, food, books, car payments, health insurance, etc.) are covered by someone else. If that's not the case, you can probably tack another $100,000 or so onto the total amount due, assuming they are wise enough to live like a frugal student for the duration.
Where I think Segal's argument falls a little short is in discussing the financial responsibility of the students. Most student loans are 10-year loans. If you take out $120,000 in loans with a 10-year repayment plan and 6.8% interest, any online loan calculator (they are available here, here, here, here, here, and here, among other sites) can tell you that your monthly payment will be $1,380.96. No kidding here, folks; that is a substantial payment. But I figured out that number in about 30 seconds. Now, it's true that if you're taking out multiple federal and private loans, the total monthly payment for all of them is harder to calculate. One might need a pencil and paper to record some of the numbers, so that you can add up the totals at the end. But really, this isn't that complicated. If I can do the math, anyone can.
I think the point Segal makes well, though, is that the schools allegedly led all the students think they'd all be making $200,000 per year. If that were true, $17,000 going to pay down loans every year wouldn't seem so bad. But when you're making $30,000 per year - or worse, when you're unemployed - $17,000 per year is a whole lot of cash. Maybe financial advisors should be required sit down with each and every incoming student and say "the lower end salary for someone graduating is $30,000 per year. Do you have sufficient other resources that you can afford to pay about half of that salary towards your loans?" If they answer is no, ask them to come back in a year when they've successfully passed the intervening time having spent not a penny over $13,000. If they've proven their mettle by succeeding at that challenge, welcome them to law school with open arms. If not, show them the door. But that's just my recommendation.
Perhaps what all newly-minted lawyers struggling to make loan payments will get out of this fiasco is a healthy dose of cynicism. Here's hoping they can impart their hard-learned lessons on the next generation.
[A blog post summarizing other responses to Segal's Times column is here.]
Graduate school appears to be a common solution to a slow economy. Since you can't find a job and make any money, why not borrow money and go into debt? Seems logical. The Law School Admissions Council and the American Bar Association reported recently that the number of hopefuls who took the Law School Admissions Test in October 2010 was the second-highest number of takers ever.
At the same time, law schools are raising enrollment and raking in ever more money in tuition, while finessing employment-after-graduation figures which mislead incoming and potential students, or so says columnist David Segal, who published a long and scathing critique of the whole system in the New York Times last week. It includes interviews with former students, professors, deans and other administrators, and representatives from the ABA and US News & World Report (famous for its controversial rankings). He accuses law schools and administrators of (among other things) being completely incapable of policing themselves, which is not a good sign in a profession that - ironically - relies primarily on self-policing for regulation and detection of ethics violations.
In a lot of ways, I think he's right. The rankings are a game, and administrators fudge the numbers so they can up their stats. But at the same time, anyone who enters a three-year graduate program knowing tuition is $40,000 per year has to know that they're going to graduate with at least - at least - $120,000 in debt. It's not rocket science. And that $120,000 figure is assuming the students' other costs (shelter, food, books, car payments, health insurance, etc.) are covered by someone else. If that's not the case, you can probably tack another $100,000 or so onto the total amount due, assuming they are wise enough to live like a frugal student for the duration.
Where I think Segal's argument falls a little short is in discussing the financial responsibility of the students. Most student loans are 10-year loans. If you take out $120,000 in loans with a 10-year repayment plan and 6.8% interest, any online loan calculator (they are available here, here, here, here, here, and here, among other sites) can tell you that your monthly payment will be $1,380.96. No kidding here, folks; that is a substantial payment. But I figured out that number in about 30 seconds. Now, it's true that if you're taking out multiple federal and private loans, the total monthly payment for all of them is harder to calculate. One might need a pencil and paper to record some of the numbers, so that you can add up the totals at the end. But really, this isn't that complicated. If I can do the math, anyone can.
I think the point Segal makes well, though, is that the schools allegedly led all the students think they'd all be making $200,000 per year. If that were true, $17,000 going to pay down loans every year wouldn't seem so bad. But when you're making $30,000 per year - or worse, when you're unemployed - $17,000 per year is a whole lot of cash. Maybe financial advisors should be required sit down with each and every incoming student and say "the lower end salary for someone graduating is $30,000 per year. Do you have sufficient other resources that you can afford to pay about half of that salary towards your loans?" If they answer is no, ask them to come back in a year when they've successfully passed the intervening time having spent not a penny over $13,000. If they've proven their mettle by succeeding at that challenge, welcome them to law school with open arms. If not, show them the door. But that's just my recommendation.
Perhaps what all newly-minted lawyers struggling to make loan payments will get out of this fiasco is a healthy dose of cynicism. Here's hoping they can impart their hard-learned lessons on the next generation.
[A blog post summarizing other responses to Segal's Times column is here.]
Wednesday, December 8, 2010
Risks (and benefits?) of being pro se
About a year and a half ago, there was an episode of the public radio show This American Life entitled "Pro Se." If you've never listened to the show, the typical format is something like this: each week, the editors pick a theme, and provide listeners with a variety of stories - as few as one, as many as five or six - on that theme.
The discussions in "Pro Se" were understandably mostly related to litigants who choose to represent themselves in court. Very interesting stories; definitely worth a listen.
The discussions in "Pro Se" were understandably mostly related to litigants who choose to represent themselves in court. Very interesting stories; definitely worth a listen.
Sunday, November 28, 2010
GPS Surveillance, Part III - Meaning and Other Rulings
I went on ad nauseum two posts (and many weeks) ago about the Ninth Circuit case of United States v. Pineda-Moreno. I stopped short (I think) of offering any of my own interpretations. No longer:
If you live in the Ninth Circuit (which is huge; it includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), post "No Trespassing" signs at the end of your driveway - or all around your property - if you want to prevent entry. Those signs will give you a much stronger argument that agents who entered onto your property under cover of night to place a tracking device on your vehicle were operating unlawfully.
However, if your car is ever found in a public place (at a parking meter, for example), law enforcement officials can place a tracking device on your car to trace its location, and such action is not unlawful.
There is an argument (springing from Judge Kozinski's dissent) that GPS trackers are an unlawful extension of the law enforcement's use of technology, but so far the rest of the Ninth Circuit doesn't agree with him. (Other courts do, though; see below.)
Of course, if you are not suspected of any criminal activity, this should not concern you, except on ideological grounds (where you should be very concerned, no matter your criminal or law-abiding tendencies).
Similar rules apply if you live in the Seventh (Illinois, Indiana, and Wisconsin) or Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota) Circuits. See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); Unites States v. Marquez, 605 F.3d 604 (8th Cir. 2010). Both cases are discussed briefly below.
The Ninth Circuit, though, is not the only court with an opinion on this issue. The United States Court of Appeals for the District of Columbia Circuit has also weighed in, and the judges on the east coast (not surprisingly) feel differently. If you live on that side of the country, you may have slightly more protection from government investigation as to your whereabouts. What happens when one Court of Appeals says one thing and a different Court of Appeals says something else? Usually one or more cases with similar facts will find their way to the Supreme Court of the United States. If SCOTUS hears such a case, their ruling will become binding on all circuit courts. If they decline to hear it, the difference of opinion, known as a split in the circuits, will continue.
United States v. Maynard
In United States v. Maynard (the full opinion is available here), the DC Circuit Court of Appeals heard the arguments made on behalf of Lawrence Maynard and Antoine Jones.
Mr. Jones and Mr. Maynard were both under investigation for narcotics violations by the joint FBI-Metropolitan Police Department Safe Streets Task Force. They were arrested and both defendants, along with a number of their acquaintances, were charged at the trial level with conspiracy to distribute and conspiracy to possess with intent to distribute a large amount of cocaine or cocaine base. Both were convicted in a joint trial. Mr. Maynard's appeal does not address the GPS argument, so is not significant for these purposes. (Mr. Jones also made a number of points on appeal which are not significant here, but include alleged error in the admission of evidence secured by wiretap and and by a search incident to a traffic stop, as well as a number of alleged errors at trial.)
Mr. Jones's conviction was secured with heavy reliance by the government at trial on a GPS tracking device which had been placed on his vehicle. On appeal, Jones argues that this tracking - which went on 24 hours a day for 28 days, with the device automatically transmitting and recording his position at regular intervals - constituted a search which violated his reasonable expectation of privacy under the Fourth Amendment, and was therefore illegal since the agents lacked a search warrant at the time the device was activated.
(1) Did the use of the GPS device constitute a search?
(a) Knotts is not controlling precedent
The government's argument relied on United States v. Knotts, in which the United States Supreme Court found that using a beeper device to aid in the physical tracking of a vehicle did not constitute a cognizable "search" because a person traveling on public roads has no reasonable expectation of privacy in his journey from one point to another. The government's argument was that the GPS device was essentially the same as the beeper in Knotts in that it aided the law enforcement agents in their attempts to track the whereabouts of their suspects, and that the GPS was not the type of mass surveillance that the Supreme Court was concerned about in Knotts.
The court here disagreed. The beeper, they said, was for use only during a "discrete journey." The Supreme Court had specifically reserved the question of "whether a warrant would be required in a case involving 'twenty-four hour surveillance,'" and not just the type of "mass surveillance" that the government was advocating for (such as blanket wiretaps), but even for twenty-four hour surveillance of an individual. The court cautioned that "if a warrant is not required, then prolonged 'twenty-four hour surveillance of any citizen of this country will be possible, with judicial knowledge or supervision.'"
The court pays homage to United States v. Pineda-Moreno (previously discussed at some length), United States v. Garcia, and United States v. Marquez. The Seventh Circuit Court of Appeals in Garcia upheld the use of the GPS device, but Mr. Garcia had failed to argue in that case that he had a reasonable expectation of privacy over the totality of his movements for the duration of the surveillance; his only argument was that the placement of the device which led to the tracking was a violation of the search requirements of the Fourth Amendment. The court in Garcia found the use of the GPS device to be more similar to tracking via stationary mounted cameras or satellite (not a search) than to a listening device on a phone (a search), and hence found no Fourth Amendment violation.
In Marquez, the Eighth Circuit Court of Appeals agreed with the Seventh and Ninth Circuits when faced with an argument similar to the one made in Garcia. The court, despite finding that the defendant lacked standing to challenge the use of the GPS device, stated that installation of a non-invasive GPS tracking device for a reasonable period of time to a car parked in a public space did not require a warrant.
(b) Were Jones's whereabouts exposed to the public?
Since Knotts doesn't control the outcome in this case, the court must analyze Mr. Jones's expectation of privacy. The requirement imposed by the case law stemming from the Fourth Amendment that law enforcement officials be armed with a warrant generally does not apply where a person has no reasonable expectation of privacy. The question of whether one's actions are "exposed" can be considered in light of either actual exposure or constructive exposure.
(i) Actual Exposure
When examining actual exposure, the court asks "not what another person can physically and may lawfully do, but rather what a reasonable person expects another might actually do." The court illustrates the application of this question by looking at a number of different cases, including United States v. Kyllo and United States v. Gbemisola.
In Kyllo, "the Court held use of a thermal imaging device defeats the subject's reasonable expectation of privacy, 'at least where...the technology in question is not in general public use.'" Thermal imaging was not in public use - it was not something "a reasonable person expects another might actually do" - therefore it violated the subject's reasonable expectation of privacy.
In Gbemisola, in which the subject and contraband were located in the rear seat of a taxi, the court declared that "'one cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger, [so] the Fourth Amendment's warrant requirement was not implicated." The implied corollary in Gbemisola is that, had the act taken place out of view of the public, there would have been an expectation of privacy.
The government's argument in Maynard is simple: knowing exposure of one's movements, movements on public roads visible to anyone who wanted to look, is not subject to Fourth Amendment protection. Applying the principles from Kyllo and Gbemisola to Mr. Jones's case, the court finds differently: "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil." Jones's movements were not actually exposed.
(ii) Constructive Exposure
The government makes no argument for constructive exposure, but the court acts on its own initiative to explore the issue. It relies on United States Department of Justice v. Nation Reporters Committee, in which a Freedom of Information Act request for documents was denied: "Although the 'individual events in those summaries [were] matters of public record,' ...the subjects had a privacy interest in the aggregated 'whole' distinct from their interest in the 'bits of information' of which it was composed."
The court's decision here, while wise, is not particularly well-stated. "The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises." Prolonged surveillance, which allows the viewer to see patterns of behavior, is vastly more revealing about a person that one-time observation. "A reasonable person," they said, "does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous.'" Therefore, neither were Jones's movements constructively exposed to the public.
(c) Was the expectation of privacy reasonable?
The court frames this question within the bounds of a case it previously decided, Reporters Comm. for Freedom of Press v. AT&T: "the Fourth Amendment ... secur[es] for each individual a private enclave, a 'zone' bounded by the individual's own reasonable expectations of privacy."
The government, as was its habit in Maynard, argued that Jones's movements took place on public roadways, and therefore Jones had no reasonable expectation of privacy. The court fell back on its analysis of actual and constructive exposure, reasoning that no one would expect every movement they made over the course of a month to be aggregated; even if someone observed a single movement, the subject of the observation would expect the others to remain disconnected from that one.
The facts of the case and its own previous analysis lead the court to the conclusion that "[s]ociety recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable...."
(d) Visual Surveillance
The court takes a bit of time to distinguish between visual surveillance and the use of a GPS tracking device. It acknowledges the efficiency of GPS tracking, but also notes that the low cost and manpower requirements attendant thereto render it a new type of intrusion into the lives of citizens, not the type of intrusion which had been previously contemplated. The government, for its part, failed to point out a single instance of prolonged visual surveillance that would be upset by the court's ruling in Jones's favor here, and the court reserves that question for a later time.
(2) So there was a search which was otherwise unreasonable. Was it rendered reasonable by an exception to the Fourth Amendment rule?
The "automobile exception" to the Fourth Amendment warrant requirement allows the search, without a warrant, of an automobile if the "car is readily mobile and probable cause exists to believe it contains contraband." The government argued that this exception applies because the device was attached to a vehicle.
Mr. Jones argued, and the court agreed, that the exception does not allow installation of a tracking device. The exception's allowance of search upon the existence of probable cause is much too narrow to support the government's position.
(3) The evidence was admitted in error. But was the error harmless?
Evidence obtained from the GPS tracking device was used in Mr. Jones's conviction at the trial level. If the government could show that the district court's error in admitting the evidence despite its unconstitutionality was harmless, the decision would not be overturned. The government failed to meet that burden, and the Court of Appeals found that it is unlikely Mr. Jones would have been convicted without the GPS evidence.
The court reversed Mr. Jones's conviction.
Application for Rehearing En Banc
Since the reversal of Mr. Jones's conviction, the government applied to the DC Circuit Court for a rehearing en banc. The petition was denied.
In support of the denial, Judges Ginsburg, Tatel, and Griffith stated that the government failed to meet either of the requirements for the automobile exception to the Fourth Amendment's warrant requirement, so they needn't reconsider the issue. Additionally, the government's argument that the case calls the admissibility of evidence obtained from prolonged visual surveillance is faulty because the court specifically reserves that question.
In a dissent written by Chief Judge Sentelle and joined by Judges Henderson, Brown, and Kavanaugh, those judges express their concern that the DC Circuit now stands in opposition to the other circuit courts which have ruled on the issue of GPS surveillance. Further, they feel that the panel's decision stands in opposition to the Supreme Court's opinion in Knotts, which is binding precedent and must be followed. They are unconvinced by the panel's distinction between Knotts and Maynard, saying that the only difference between the two types of monitoring is the volume of information obtained. Such a minute difference, they argue, is not sufficient to render a new line of jurisprudence.
If you live in the Ninth Circuit (which is huge; it includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), post "No Trespassing" signs at the end of your driveway - or all around your property - if you want to prevent entry. Those signs will give you a much stronger argument that agents who entered onto your property under cover of night to place a tracking device on your vehicle were operating unlawfully.
However, if your car is ever found in a public place (at a parking meter, for example), law enforcement officials can place a tracking device on your car to trace its location, and such action is not unlawful.
There is an argument (springing from Judge Kozinski's dissent) that GPS trackers are an unlawful extension of the law enforcement's use of technology, but so far the rest of the Ninth Circuit doesn't agree with him. (Other courts do, though; see below.)
Of course, if you are not suspected of any criminal activity, this should not concern you, except on ideological grounds (where you should be very concerned, no matter your criminal or law-abiding tendencies).
Similar rules apply if you live in the Seventh (Illinois, Indiana, and Wisconsin) or Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota) Circuits. See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); Unites States v. Marquez, 605 F.3d 604 (8th Cir. 2010). Both cases are discussed briefly below.
The Ninth Circuit, though, is not the only court with an opinion on this issue. The United States Court of Appeals for the District of Columbia Circuit has also weighed in, and the judges on the east coast (not surprisingly) feel differently. If you live on that side of the country, you may have slightly more protection from government investigation as to your whereabouts. What happens when one Court of Appeals says one thing and a different Court of Appeals says something else? Usually one or more cases with similar facts will find their way to the Supreme Court of the United States. If SCOTUS hears such a case, their ruling will become binding on all circuit courts. If they decline to hear it, the difference of opinion, known as a split in the circuits, will continue.
United States v. Maynard
In United States v. Maynard (the full opinion is available here), the DC Circuit Court of Appeals heard the arguments made on behalf of Lawrence Maynard and Antoine Jones.
Mr. Jones and Mr. Maynard were both under investigation for narcotics violations by the joint FBI-Metropolitan Police Department Safe Streets Task Force. They were arrested and both defendants, along with a number of their acquaintances, were charged at the trial level with conspiracy to distribute and conspiracy to possess with intent to distribute a large amount of cocaine or cocaine base. Both were convicted in a joint trial. Mr. Maynard's appeal does not address the GPS argument, so is not significant for these purposes. (Mr. Jones also made a number of points on appeal which are not significant here, but include alleged error in the admission of evidence secured by wiretap and and by a search incident to a traffic stop, as well as a number of alleged errors at trial.)
Mr. Jones's conviction was secured with heavy reliance by the government at trial on a GPS tracking device which had been placed on his vehicle. On appeal, Jones argues that this tracking - which went on 24 hours a day for 28 days, with the device automatically transmitting and recording his position at regular intervals - constituted a search which violated his reasonable expectation of privacy under the Fourth Amendment, and was therefore illegal since the agents lacked a search warrant at the time the device was activated.
(1) Did the use of the GPS device constitute a search?
(a) Knotts is not controlling precedent
The government's argument relied on United States v. Knotts, in which the United States Supreme Court found that using a beeper device to aid in the physical tracking of a vehicle did not constitute a cognizable "search" because a person traveling on public roads has no reasonable expectation of privacy in his journey from one point to another. The government's argument was that the GPS device was essentially the same as the beeper in Knotts in that it aided the law enforcement agents in their attempts to track the whereabouts of their suspects, and that the GPS was not the type of mass surveillance that the Supreme Court was concerned about in Knotts.
The court here disagreed. The beeper, they said, was for use only during a "discrete journey." The Supreme Court had specifically reserved the question of "whether a warrant would be required in a case involving 'twenty-four hour surveillance,'" and not just the type of "mass surveillance" that the government was advocating for (such as blanket wiretaps), but even for twenty-four hour surveillance of an individual. The court cautioned that "if a warrant is not required, then prolonged 'twenty-four hour surveillance of any citizen of this country will be possible, with judicial knowledge or supervision.'"
The court pays homage to United States v. Pineda-Moreno (previously discussed at some length), United States v. Garcia, and United States v. Marquez. The Seventh Circuit Court of Appeals in Garcia upheld the use of the GPS device, but Mr. Garcia had failed to argue in that case that he had a reasonable expectation of privacy over the totality of his movements for the duration of the surveillance; his only argument was that the placement of the device which led to the tracking was a violation of the search requirements of the Fourth Amendment. The court in Garcia found the use of the GPS device to be more similar to tracking via stationary mounted cameras or satellite (not a search) than to a listening device on a phone (a search), and hence found no Fourth Amendment violation.
In Marquez, the Eighth Circuit Court of Appeals agreed with the Seventh and Ninth Circuits when faced with an argument similar to the one made in Garcia. The court, despite finding that the defendant lacked standing to challenge the use of the GPS device, stated that installation of a non-invasive GPS tracking device for a reasonable period of time to a car parked in a public space did not require a warrant.
(b) Were Jones's whereabouts exposed to the public?
Since Knotts doesn't control the outcome in this case, the court must analyze Mr. Jones's expectation of privacy. The requirement imposed by the case law stemming from the Fourth Amendment that law enforcement officials be armed with a warrant generally does not apply where a person has no reasonable expectation of privacy. The question of whether one's actions are "exposed" can be considered in light of either actual exposure or constructive exposure.
(i) Actual Exposure
When examining actual exposure, the court asks "not what another person can physically and may lawfully do, but rather what a reasonable person expects another might actually do." The court illustrates the application of this question by looking at a number of different cases, including United States v. Kyllo and United States v. Gbemisola.
In Kyllo, "the Court held use of a thermal imaging device defeats the subject's reasonable expectation of privacy, 'at least where...the technology in question is not in general public use.'" Thermal imaging was not in public use - it was not something "a reasonable person expects another might actually do" - therefore it violated the subject's reasonable expectation of privacy.
In Gbemisola, in which the subject and contraband were located in the rear seat of a taxi, the court declared that "'one cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger, [so] the Fourth Amendment's warrant requirement was not implicated." The implied corollary in Gbemisola is that, had the act taken place out of view of the public, there would have been an expectation of privacy.
The government's argument in Maynard is simple: knowing exposure of one's movements, movements on public roads visible to anyone who wanted to look, is not subject to Fourth Amendment protection. Applying the principles from Kyllo and Gbemisola to Mr. Jones's case, the court finds differently: "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil." Jones's movements were not actually exposed.
(ii) Constructive Exposure
The government makes no argument for constructive exposure, but the court acts on its own initiative to explore the issue. It relies on United States Department of Justice v. Nation Reporters Committee, in which a Freedom of Information Act request for documents was denied: "Although the 'individual events in those summaries [were] matters of public record,' ...the subjects had a privacy interest in the aggregated 'whole' distinct from their interest in the 'bits of information' of which it was composed."
The court's decision here, while wise, is not particularly well-stated. "The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises." Prolonged surveillance, which allows the viewer to see patterns of behavior, is vastly more revealing about a person that one-time observation. "A reasonable person," they said, "does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous.'" Therefore, neither were Jones's movements constructively exposed to the public.
(c) Was the expectation of privacy reasonable?
The court frames this question within the bounds of a case it previously decided, Reporters Comm. for Freedom of Press v. AT&T: "the Fourth Amendment ... secur[es] for each individual a private enclave, a 'zone' bounded by the individual's own reasonable expectations of privacy."
The government, as was its habit in Maynard, argued that Jones's movements took place on public roadways, and therefore Jones had no reasonable expectation of privacy. The court fell back on its analysis of actual and constructive exposure, reasoning that no one would expect every movement they made over the course of a month to be aggregated; even if someone observed a single movement, the subject of the observation would expect the others to remain disconnected from that one.
The facts of the case and its own previous analysis lead the court to the conclusion that "[s]ociety recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable...."
(d) Visual Surveillance
The court takes a bit of time to distinguish between visual surveillance and the use of a GPS tracking device. It acknowledges the efficiency of GPS tracking, but also notes that the low cost and manpower requirements attendant thereto render it a new type of intrusion into the lives of citizens, not the type of intrusion which had been previously contemplated. The government, for its part, failed to point out a single instance of prolonged visual surveillance that would be upset by the court's ruling in Jones's favor here, and the court reserves that question for a later time.
(2) So there was a search which was otherwise unreasonable. Was it rendered reasonable by an exception to the Fourth Amendment rule?
The "automobile exception" to the Fourth Amendment warrant requirement allows the search, without a warrant, of an automobile if the "car is readily mobile and probable cause exists to believe it contains contraband." The government argued that this exception applies because the device was attached to a vehicle.
Mr. Jones argued, and the court agreed, that the exception does not allow installation of a tracking device. The exception's allowance of search upon the existence of probable cause is much too narrow to support the government's position.
(3) The evidence was admitted in error. But was the error harmless?
Evidence obtained from the GPS tracking device was used in Mr. Jones's conviction at the trial level. If the government could show that the district court's error in admitting the evidence despite its unconstitutionality was harmless, the decision would not be overturned. The government failed to meet that burden, and the Court of Appeals found that it is unlikely Mr. Jones would have been convicted without the GPS evidence.
The court reversed Mr. Jones's conviction.
Application for Rehearing En Banc
Since the reversal of Mr. Jones's conviction, the government applied to the DC Circuit Court for a rehearing en banc. The petition was denied.
In support of the denial, Judges Ginsburg, Tatel, and Griffith stated that the government failed to meet either of the requirements for the automobile exception to the Fourth Amendment's warrant requirement, so they needn't reconsider the issue. Additionally, the government's argument that the case calls the admissibility of evidence obtained from prolonged visual surveillance is faulty because the court specifically reserves that question.
In a dissent written by Chief Judge Sentelle and joined by Judges Henderson, Brown, and Kavanaugh, those judges express their concern that the DC Circuit now stands in opposition to the other circuit courts which have ruled on the issue of GPS surveillance. Further, they feel that the panel's decision stands in opposition to the Supreme Court's opinion in Knotts, which is binding precedent and must be followed. They are unconvinced by the panel's distinction between Knotts and Maynard, saying that the only difference between the two types of monitoring is the volume of information obtained. Such a minute difference, they argue, is not sufficient to render a new line of jurisprudence.
Friday, September 17, 2010
WedLock
Earlier this summer, an attorney friend of mine and I got discussing health insurance. Particularly, we were debating the pros and cons of even having insurance, since you never know when you'll need medical care. It came down to this: insurance is one of those things you'll hate having until you really need it (assuming your insurance company stands behind you when that time comes).
Somewhat inevitably, the conversation shifted slightly to the idea of legal insurance. I knew that it existed in some form - x number of hours of consultation with an attorney, for the bargain price of $y per month. I do a lot of family law, so we got thinking about divorce insurance. Did this exist? If so, did people actually use it? Do you need an insurance broker's license to sell it?
Turns out, divorce insurance does exist, though it appears to be a very new invention - the last few months or so. A company called WedLock (owned by SafeGuard Guaranty Corporation out of North Carolina) appears to be leading the charge, mostly through scare tactics. The cost of a divorce quoted on their website is not necessarily untrue, but in most cases applies to a higher-asset divorce. For a couple just trying to divide a small house and modest some bank accounts, and even sometimes when there are children involved, the costs usually only get that high if there is bitter fighting over the coffee table, the blender, the DVD player, the bathmat, the alarm clock, the fruit basket, the.... You get the picture. Most folks, in my experience, are able to sort out the small details themselves, and the cost doesn't get anywhere near the $15,000 to $30,000 quoted on the site.
High-asset cases, on the other hand, can easily reach that level, even when the parties are cooperative. More assets means more paperwork to swap and sift through, and that takes time. And time, as they say, is money.
Undoubtedly, other companies will jump on board with WedLock in the coming months and years. When that happens, there are two key things to think about:
1. Do you really need or want divorce insurance?
2. If you think you do, which company/policy best suits your needs?
Somewhat inevitably, the conversation shifted slightly to the idea of legal insurance. I knew that it existed in some form - x number of hours of consultation with an attorney, for the bargain price of $y per month. I do a lot of family law, so we got thinking about divorce insurance. Did this exist? If so, did people actually use it? Do you need an insurance broker's license to sell it?
Turns out, divorce insurance does exist, though it appears to be a very new invention - the last few months or so. A company called WedLock (owned by SafeGuard Guaranty Corporation out of North Carolina) appears to be leading the charge, mostly through scare tactics. The cost of a divorce quoted on their website is not necessarily untrue, but in most cases applies to a higher-asset divorce. For a couple just trying to divide a small house and modest some bank accounts, and even sometimes when there are children involved, the costs usually only get that high if there is bitter fighting over the coffee table, the blender, the DVD player, the bathmat, the alarm clock, the fruit basket, the.... You get the picture. Most folks, in my experience, are able to sort out the small details themselves, and the cost doesn't get anywhere near the $15,000 to $30,000 quoted on the site.
High-asset cases, on the other hand, can easily reach that level, even when the parties are cooperative. More assets means more paperwork to swap and sift through, and that takes time. And time, as they say, is money.
Undoubtedly, other companies will jump on board with WedLock in the coming months and years. When that happens, there are two key things to think about:
1. Do you really need or want divorce insurance?
2. If you think you do, which company/policy best suits your needs?
Tuesday, September 7, 2010
Public Service in the Down Economy
A New York Times article published last month told the story of Nathan Richardson, a University of Chicago Law School graduate who secured a coveted job offer at the LA-based firm of Latham & Watkins, P.C. When the economy went south, Latham & Watkins, like many large firms, offered newly-minted attorneys a stipend of tens of thousands of dollars, usually about half of their first-year salary (a first-year salary would likely range from $100,000 to $150,000) to not come in to work. That's right, these lawyers were paid for the year to do nothing.
But as ambitious young attorneys, most of them decided to do something anyway. Many, like Richardson, went to work at public interest law firms, and the lucky ones were even able to work pro bono thanks to the stipend they received from the deferring firm. As you can imagine, this was great news for the not-for-profits and the public interest firms, who were now getting top-notch students who were used to working hard and ambitious to make an impression. That extra manpower certainly helped to clear many a backlogged file cabinet.
According to the Atlanta Journal-Constitution, the Georgia Supreme Court issued a rule late last year allowing limited privileges for attorneys who were not licensed to practice in Georgia and were willing to volunteer their time. The non-licensed attorneys could work for a non-profit or one of a number of government agencies or offices, and their work had to be signed off on by a licensed attorney working for that organization. This rule allowed deferred associates or attorneys looking to try out a new career path to get real, hands-on experience, while also providing extra manpower to help out cases which were building up, often due to hiring freezes instituted by the government or governing board.
These circumstances come together to improve the situation for public interest law firms and not for profits - ambitious new lawyers, or lawyers seeking to reinvigorate their passion, are flooding the market - often for free or cheap.
Not quite everything is coming up roses though. Time Magazine article states that the average law student who graduated in 2009 was burdened with $73,000 in debt. [Repayment terms vary, of course, but those loans would probably require a monthly payment of something on the order of $1,000 to $1,500.] The Time article quotes Larry Kramer, dean of Stanford Law School, who laments the lack of a suitable loan forgiveness or similar program to help students who could not only not afford to work pro bono, but also those who are having trouble making loan payments even if they are receiving a small salary from their interim employer.
But as ambitious young attorneys, most of them decided to do something anyway. Many, like Richardson, went to work at public interest law firms, and the lucky ones were even able to work pro bono thanks to the stipend they received from the deferring firm. As you can imagine, this was great news for the not-for-profits and the public interest firms, who were now getting top-notch students who were used to working hard and ambitious to make an impression. That extra manpower certainly helped to clear many a backlogged file cabinet.
According to the Atlanta Journal-Constitution, the Georgia Supreme Court issued a rule late last year allowing limited privileges for attorneys who were not licensed to practice in Georgia and were willing to volunteer their time. The non-licensed attorneys could work for a non-profit or one of a number of government agencies or offices, and their work had to be signed off on by a licensed attorney working for that organization. This rule allowed deferred associates or attorneys looking to try out a new career path to get real, hands-on experience, while also providing extra manpower to help out cases which were building up, often due to hiring freezes instituted by the government or governing board.
These circumstances come together to improve the situation for public interest law firms and not for profits - ambitious new lawyers, or lawyers seeking to reinvigorate their passion, are flooding the market - often for free or cheap.
Not quite everything is coming up roses though. Time Magazine article states that the average law student who graduated in 2009 was burdened with $73,000 in debt. [Repayment terms vary, of course, but those loans would probably require a monthly payment of something on the order of $1,000 to $1,500.] The Time article quotes Larry Kramer, dean of Stanford Law School, who laments the lack of a suitable loan forgiveness or similar program to help students who could not only not afford to work pro bono, but also those who are having trouble making loan payments even if they are receiving a small salary from their interim employer.
Monday, August 30, 2010
The Un-Divorceds, and the Never-Marrieds
Another New York Times article published recently addresses the forces which cause couples to remain married, even though their relationship does not fit the standard definition of "married." Perhaps they are living in separate bedrooms, or perhaps they are living on opposite coasts.
The following are some of the primary reasons, according to the article's author, why couples sometimes don't feel it's necessary to divorce:
- Aversion to lawyers/courts
- Desire to avoid a potentially ugly divorce
- Maintaining health insurance for both parties through the employer of one party
- Benefits which come from filing joint tax returns
- Future Social Security benefits
- No desire to remarry, or an excuse not to remarry
- Inability to sell jointly-owned home
The bottom line appears to be financial; interestingly, the majority of couples who choose not to divorce make that choice for the money and benefits, rather than for, for example, their kids. Is this a reflection of our financially-strapped times? Definitely.
But does it also indicate that, as a society, we feel differently about divorce and rearing children than we did previously? Probably so. The rate of unmarried births is rising, according to statistics in the last post. The societal trend for change of this type is circular: things which are more common are more accepted, and as things become more acceptable, they become more common.
The following are some of the primary reasons, according to the article's author, why couples sometimes don't feel it's necessary to divorce:
- Aversion to lawyers/courts
- Desire to avoid a potentially ugly divorce
- Maintaining health insurance for both parties through the employer of one party
- Benefits which come from filing joint tax returns
- Future Social Security benefits
- No desire to remarry, or an excuse not to remarry
- Inability to sell jointly-owned home
The bottom line appears to be financial; interestingly, the majority of couples who choose not to divorce make that choice for the money and benefits, rather than for, for example, their kids. Is this a reflection of our financially-strapped times? Definitely.
But does it also indicate that, as a society, we feel differently about divorce and rearing children than we did previously? Probably so. The rate of unmarried births is rising, according to statistics in the last post. The societal trend for change of this type is circular: things which are more common are more accepted, and as things become more acceptable, they become more common.
Monday, August 16, 2010
The Recession and Family Life
Judith Warner wrote an article for the New York Times on August 6, 2010, entitled "What The Great Recession Has Done to Family Life." The following is an excerpt:
"The most devastating losses in household wealth over the past two years have been suffered by the middle class. And families are fraying at the seams. The Pew poll showed nearly half of people who had been unemployed for more than six months saying their family relationships had become strained, and a New York Times/CBS poll of unemployed adults last winter found about 40 percent saying they believed their joblessness was causing behavioral change in their children.
Parents who have jobs are working longer hours than ever. Mothers are taking shorter maternity leaves. The birth rate is on the decline. The divorce rate is declining, too — it’s too expensive for people to break up their households — but that’s not necessarily a family-friendly thing, as a report from the Council on Contemporary Families noted in April: 'We know from the experience of the Great Depression of the 1930s that divorce rates can fall while family conflict and domestic violence rates rise.'"
The costs of divorce and running two households are daunting, especially during these tough times. However, it is important to remember that your and your family's safety should always be your top priority.
Subscribe to:
Posts (Atom)