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Hades’s Deposition

27 Wednesday Mar 2013

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A long time ago I participated in a complex civil litigation case which involved a construction project gone wrong.  The details do not really matter.  I represented the plaintiff in the matter.  The case was difficult enough but my client’s expert’s deposition added a new level of complexity I had not contemplated.

Depositions are factual statements taken under oath as part of the discovery/information process.  It’s a preview of the other side’s cross-examination of a witness at trial.  There are several reasons to depose a witness: first, it provides a oppourtunity to confirm what you know about a case; second, it gives you an idea of what the other side knows and if there any problems on the horizon; third, it sometimes provides a chance to settle a case without further expense.  The other side in this case had to depose our expert in order to assess where we all stood, pre-trial.

This particular case was very fact intensive with reports, statements, and other information in great quantity.  We had to associate an expert to evaluate all of the facts and condense them into a citable report.  The expert hired was a tier one professional who did not come cheap.  He spent days reviewing material and preparing his summary.  He also generated many questions, all important to our legal position.  These questions necessitated the client’s active participation in their answering.  For several months the expert requested this participation and was largely rebuffed.  The client was not unwilling to help rather, he always seemed to drift to other subjects and find excuses for delaying his responses.  We scheduled several (expensive) all day meetings intended to get the client on the same page with the expert.  The meetings never answered some questions.

Thus, the expert was left to guess at some factors and to do his best to assess the facts on his own.  He did a great job overall.  His report served as an excellent basis to proceed in the case.  At his deposition, he defended his positions with great skill, confident his findings supported the plaintiff’s position.

My role was to “defend” the expert during the deposition.  The other side was represented by two attorneys who both took active roles in the examination.  These gentlemen were extremely professional and the expert was not at his first rodeo.  Thus, my job should have been fairly simple.  In such sessions the defending attorney usually requests question clarification when necessary and objects for the record if some questions over-reach the allowable scope of discovery.  The questions may still be asked and answered, the objections take effect if called for later at trial.

Out of professional courtesy, everyone agreed to depose the expert at his metro-Atlanta office, several hours away from mine.  I arrived extra early to confer with the man and plan for any expected troubles.  We had a good meeting and agreed things looked pretty good.  The client was supposed to meet with us in a last-ditch effort to reveal misplaced information.  He showed up with little time to spare, along with the other attorneys and the court reporter.

The opposing side had read and were familiar with our expert’s preliminary report.  Their questions were efficient and run of the mill.  However, my client began at once to exhibit overly odd behavior.  He was restless, talked to himself, talked to me (interrupting my train of thought), and interfered with the questioning to the point that I politely requested a break to speak with him in private.  He then agreed to calm down.

It did not last.  After interrupting several more times, the questioning attorney directed his attention to my client’s disruption.  I once again took him aside for a talk.  It did not take this time.  The client seemed concerned that the expert was not answering certain questions sufficiently as those questions required the information the client was supposed to deliver to the expert but never did.  He was suddenly concerned that the expert did not have all facts.  I reassured him things were going well and asked if he had the additional information, even at the late hour.  He did not.  I cautioned him not to interrupt again and back we went.

Then, during the ordinary course of the questioning, the client went berserk.  He began to only talk (about the questions and other things).  He snatched my note pad and began writing me cryptic notes I did not understand.  I ignored him at this point.  Then he began to pace around the room like a tiger in a cage.  He stopped and talked behind the expert.  He looked over the other attorneys while they spoke.  He talked to the court reported.  I felt a little sick. 

At some point one of the opposing lawyers requested a break so I could attempt to regain control of my client.  I should have told him to leave or threatened to quite myself.  Instead, I pleaded with him to keep from getting himself held in contempt or somethingfor interference. 

We resumed after lunch and went on for the rest of the afternoon.  My client at least remained seated for the most part but he was of no help to me whatsoever.  Usually, a lawyer will ask a present client some questions in order to assist his understanding of the present matter.  I knew it was a lost cause.  I did request that we have a meeting immediately after the session, a get with Jesus prayer meeting, if you will.  He agreed.

However, after the deposition ended the client disappeared.  This did give me a few minutes to apologize to the other side and the reporter.  I assumed man-tiger had gone to his car for something.  I ended up in the expert’s executive office talking about the merits of the matter and the oddity of the day’s event.  Neither of us had ever seen anything like it.  After about an hour we realized our client had not joined us.  I got up and looked for him but found no sign of him in or outside of the office.  Honestly, I was a little relieved.  However, back in the expert’s office a few minutes later the client called.  He reported he was almost back to my office and that he knew where the missing facts were located.  I guessed that he did not, in fact, know anything about the facts and that he must be driving over 100 miles per hour.

My partner later reported to me that the client did stop by a little more than one hour after the deposition was finished.  He rushed in yelling and frightened several other clients.  He ransacked his own files and left muttering to himself.  No facts ever came forth.

Around this time the sun was setting and the expert and I were tired, numbed, and hungry.  We decided to get dinner and drinks.  I called a friend in the area and we all met at a local pub.  There I attempted triage of my mind via single-malt scotch.  It worked and after sobering up I made the long drive home.  By the time I was in the car my brain was dead and I probably would not have passed a road-side sobriety test even if I had not consumed anything.  I didn’t care at the time and, fortunately, there was no incident on the highway.  I stopped in the office after midnight and wrote myself a memo detailing the unusual circumstances of the day.

I learned several things from this affair.  Most importantly, I learned to identify disturbed clients before agreeing to represent them.  I also concluded that all clients needed extensive preparation before depositions with adequate warnings about proper conduct.  In cases like this one I decided the absence of the client would be in the client’s best interests.  I also reflected on the fact that people are not perfect and that patience is a virtue. 

In the end, thanks to the expert’s hard work, the deposition was a success for us.  I also came away a better attorney.  Subsequent depositions, no matter how arduous, didn’t seem that bad by comparison.  I hope you learned a little something from this story.  Maybe not.  Maybe I just needed to vent.  Anyway, always follow paid professional advice, keep quiet when necessary, and keep your speed reasonable.  My head hurts now…

It Depends…

16 Saturday Mar 2013

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On any given day I receive requests for legal advice – from clients, friends, and strangers.  Half of the time I am not truly familiar with the subject and usually not that interested.  Lawyers are trained to qualify any response they give to such questions as to their lack of specific knowledge.  They can be sanctioned for malpractice for giving advice which is incompetent.  Thus, I usually make it known that any answer is largely my off the cuff opinion, that I am not giving official advice unless retained to do so, and that any further explanation will require research.  This generally gets rid of most inquirers.  Usually their questions aren’t important enough to spend money answering.

My civil procedure professor in law school told us the answer to any legal question, initially, is always, “it depends.”  As a first year student, in a class that doesn’t begin to make sense until the end of the semester, this statement was perplexing.  It is entirely correct though.

confused

(Uhhhhh…weeeellll.  Google Images.)

“It depends” is a fancy, professional way of saying, “I don’t know.”  Most attorneys don’t know the answer to most legal questions, even in areas they specialize in.  To begin with, the law is such a vast, confusing, and constantly changing field, it is completely impossible to know everything about anything.  That senior lawyer with the “encyclopedic knowledge” of the law from the Tom Hanks’ movie, Philadelphia, resides on the silver screen and nowhere else.  Next, the facts presented by a particular person’s circumstances may differ from any other set of facts conceivable.  Think of laws as wrenches and facts as pipes; a lawyer is like a plumber, applying different wrenches to different pipes.  Most importantly, cases in court will ultimately have conclusions which cannot be foreseen, let alone guaranteed.  Any lawyer who guarantees an outcome is a liar and should be avoided. 

I have won cases I knew I was going to loss.  I have lost cases when I should, by all rights, have won.  Judges are as fallible as any other human beings and juries are like living roulette wheels.  Jurors are often influenced in their decisions by things completely unrelated to the case they’re reviewing.  As a prosecutor I once lost a DUI case just because the jury did not like the way my arresting officer presented himself on the witness stand.  They agreed the law applied to the defendant and the defendant’s actions qualified under the law as clear indications of guilt.  However, the officer kept yawning on the stand and the jury felt he wasn’t interested in the case and didn’t try to convince them of the State’s position.

Jury-Images-1

(Not a good day in court.  Google Images.)

That particular officer was well-seasoned and knew his job.  Unfortunately for me, he had just come straight into court from the night shift and was focusing most of his energy on staying awake.  I did not foresee that and there was nothing I could do about it.  As a consolation prize, I did win on the related minor parking charge.  The judge informed the very happy defendant he had dodged a bullet.  Chance leads to many dodged bullets in the law, and bullets that sometimes find innocent victims.

Usually an experienced attorney, once familiarized with the case in full, has a pretty good idea as to what will happen.  The attorney can relay this confidence to his client.  However, for the reasons I just gave, no attorney should ever declare even the most trivial matter a slam dunk.

In my article Legal Education I noted that law schools primarily teach worship of court decisions and legal research methods.  While it’s impossible to know all the law, it is quite easy for a skilled practitioner to look up and educate himself on any given subject.  I’ve had clients call, upset about “research” charges on their bill.  I always stand by these fees, so long as they are reasonable for the given case.  Doctors do extensive research before they cut a patient in surgery.  Lawyers are no different.

Like doctors, lawyers sometimes feel the need to associate expert counsel to assist with a really complicated area of the law.  Once a client came to me in a tizzy over a copyright infringement case which had been filed against him in federal court.  As the case was in a district where I do not normally practice, and after a cursory review of the maze of intellectual property laws, I concluded justice required me to hire another attorney from a giant Atlanta firm for assistance.  This was a very costly decision for the client.  In the end, though, the money was well spent.  I would draft the responsive pleadings to the best of my ability and with the client’s in-person co-operation.  Then I would email the drafts to the expert for touch-up and filing. 

As a result we were able to re-open the case and have a default judgment set aside as unjust.  Then, we removed the case to my area (where the client lives and operates his business).  There’s something to be said for home-field advantage.  We even got the “foreign” district judge to issue a scathing censure against the opposing counsel for his obnoxious behavior in the case!  That had the dual effect of making me and my expert look good and it took the slimy steam out of the other guy.  He was fired shortly thereafter.  In the end, we wrangled out a terrific settlement for pennies on the dollar out of the whole ordeal.  It was good work of which I am still proud.

Don’t be taken aback if your attorney reveals she isn’t familiar with the topic you present.  Such revelation is the mark of honesty.  Be ready to spend time and money on an investigation which may end up disappointing you.  It’s better to be told your case does not have merit or is unwinnable in the beginning, rather to discover such at a trial.

Remember, the advice I’ve given here is merely legal education for the lay audience, not exact legal advice.  If you have a specific case, you should consult a specific attorney.  Based on the subject and how your facts fit the law the outcome may be difficult to predict and will require some degree of research and work to resolve.  As for what I could tell you right now?  It depends.

How to Interact with the Police

26 Tuesday Feb 2013

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Don’t talk.  Do not ever talk to the police under any circumstances whatsoever, ever.  Ever.  This is the general libertarian legal advice given by good lawyers who wish to spare their clients and anyone else listening the possibility of unwittingly implicating themselves in criminal activity, whether they were actually involved or not.

I like this advice and tend to give it to clients myself.  However, as with most legal issues, this matter is not quite that simple.  Well, maybe it is, but there are reasons why you might need to address the cops.  I’ll get to those a little later.

On March 10, 2013 I will address the Libertarian Party of the greater Augusta, Georgia area.  I was asked to speak on the subject of citizen interaction with the police in general and, more specifically, interactions involving a citizen carrying a firearm.  I will do so happily.  This column is a preview of what I will likely discuss.

There are two federally recognized (sometimes) natural rights which are affected by such situations – actually, they are different tangents of the same right – the right to self-preservation.  The first involves not implicating oneself in wrongdoing, the second involves the right of self-defense.  The Constitution lists these rights under Amendments V and II, respectively.  All State Constitutions recognize the same rights to a degree somewhere within their texts.  I’ll stick with federal language as a universal representation:

The Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The above subject primarily deals with the “witness against himself” clause, though due process is implicated as well.

The Second Amendment reads: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  This relates, obviously, to carrying a weapon while interacting with the police.

Both of these rights, despite laws and court rulings in their favor, have experienced considerable erosion since the ratification of the Bill of Rights (most rights have).  I will not necessarily discuss the origin of the rights, their history, or their decline herein.  As is, I will just accept them as plainly written.

Back to not talking to the police.  Many attorneys, including yours truly, generally advise against talking to government employees of any stripe, not simply the police.  This extends to telephone conversations (including 911 calls) as such calls are frequently recorded.  I recently posted a link to this video (Don’t Talk to the Police): http://www.youtube.com/watch?v=6wXkI4t7nuc.  The video is a 50 minute discussion of our subject by Regent Law School (Virginia) law professor James Duane.  The advice is excellent.  You’ll notice though that immediately after saying he will never talk to the police, professor Duane talks to a police officer.  There are almost always exceptions to a general rule.

I’ll cover a few of those now.  If you are a law professor who gives such a talk and you invite a police officer to participate, you will need to talk to the police.  If you’re a nice person who walks by a cop on a sunny morning, you might say, “Good Morning!” – that’s talking to the police.  If your child is kidnapped late one night you will probably call the police before anyone else.  If you are the victim of another type of violent crime you might talk.  If you are drunk, high, suffering from low blood sugar, or under a mental delusion, you might talk to the police, not remembering any of this advice at the time.  If your friend, relative, co-worker, or neighbor is a cop …  you get the picture.

Other government employees sometimes require your verbal attention too.  These examples are almost too numerous to list.  They range from telling a campaigning CongressCritter to buzz off when he disturbs your breakfast at the local cafe (happened to me once) to asking a clerk where the county vehicle tag office is.

Most of these examples are innocent enough.  However, sometimes the police arrest and persecute people for innocent interactions.  I had a client once who singed an insurance policy while paying for it.  He was later arrested and charged with felony insurance fraud based on his signature.  The crime didn’t even involve his particular policy.  In such cases, no advice is sufficient; one must engage a competent attorney and fight the system.

My subject matter here is really how to interact with the cops when you are approached about a possible criminal action wherein you might be a suspect. 

I recall from law school there are three tiers of citizen-police encounters.  The first is a simple and voluntary meeting (like some of my above examples) wherein the citizen is free to leave.  If you find yourself in a Tier One and you suspect the officer is probing you, ask if you are free to leave.  If you are, do so immediately.  Remember you do not have to say anything to the police no matter what they ask or say.  In these simple situations you can just walk away and terminate the encounter.

The second tier is known in legal circles as a Terry stop (see: Terry v. Ohio, 392 U.S. 1 (1968).  It is also more commonly called an investigatory stop.  That means the approaching officer is officially investigating some alleged or potential criminal wrongdoing.  The citizen is not necessarily free to leave and is technically under detention, even if temporarily so.  A Tier One becomes a Terry stop if the officer responds that the citizen is not free to leave.  At this point the citizen should shut up.  The exceptions are again to ask if you are free to leave or if you are under arrest and to tell the officer you do not consent to any searches.  Do not ever consent to searches.

The police are not supposed to arbitrarily initiate Terry stops (they do sometimes).  Rather, they are supposed to have “articulable suspicion” that a crime has or may have been committed and that the citizen is a likely suspect or witness.  The standard for such suspicion varies from jurisdiction to jurisdiction and by the individual case, though the common maxim is the officer must have something more than a hunch about the possible crime.  Fuzzy, yes.

Terry stops originate from many sources: tips or reports of crime, something the officer witnesses, an emergency, a man-hunt, or something else.  Frequently, the police have nothing at all in the way of evidence.  Thus, they turn to the citizen for incriminating evidence.  Citizens offer the evidence against themselves voluntarily in most cases.  If you ever saw the TV show Cops, then you know a suspect will immediately start babbling on about what he did or didn’t do.  This usually digs the suspect a nice hole – with bars.  This is why you shouldn’t say anything.  Do not help the police do their job.  At this point you will either be arrested, further temporarily detained, or released regardless of what you say.  Talking won’t help, so don’t do it.

The third tier is a formal arrest.  If you are arrested you must absolutely cease talking period.  At some point the police will advise you of your Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) – you know these from TV.  They will tell you you have the right to remain silent and that anything you say can and will be used against you.  Did you get that?  Anything you say will be used against you.  Give them nothing.  Under arrest you only make one statement, repeatedly in necessary: “I want an attorney.”  The police usually stop questioning at that point, sometimes they don’t.  Just do not answer or make any other statements – at all.  Be silent as you have the right.

Silence is the better rule in most of these encounters.  By talking you will either implicate yourself or possibly give the officer(s) something else to consider in your prosecution.  Sometimes officers hear things wrong or falsely report what a citizen says.  They can make you out to be a liar.  You’re not lying if you’re not talking.

I have been retained by several clients just over the issue of voluntary interrogations.  I stopped the practice entirely after so many such incidents.  The client would get a call from the police, asking the client to “come downtown” to answer a few questions or make a statement.  Once a client demanded to visit the Sheriff to make a statement all on his own – over a non-issue.  My constant advice to all of these folks was to not go and to say nothing.  Most did not listen and I had to accompany them to the Q&A sessions.  At those meetings I objected to each and every question the police asked and every statement the client uttered.  That did not stop most of these people.  I have literally watched as people talked themselves into felony prosecutions.  Seeing the process as pointless and potentially liability-inducing on my part, I stopped participating.  Don’t put your attorney through such torture.  Don’t talk.

I’ve also been hired by clients after they talked to the police.  I have read many statements and listened to many recording wherein a client essentially convicted himself.  Often, without their own damning, idiotic testimony through such statements, the government would never have had a case to try.  Don’t talk to the police.

Firearms add an extra dimension to the issue.  America is the most heavily, privately armed country in the world.  We should rejoice!  The primary reason for the Second Amendment was to ensure the People would always be able to fend off a tyrannical government, all other purposes are ancillary.

Unfortunately, much has changed since 1791.  Today, many Americans are afraid of firearms (and much else) and defer unwisely to the government for protection.  Their fears are fueled by a few isolated stories from the lamestream media.  Many of these cases, I suspect, are false-flag operations of the government, ginned up to alarm the frightened people.  Remember always – “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” – H.L. Mencken.

In the old days, no-one looked twice at a person carrying a gun in public.  It was what Americans did.  You can still find the practice accepted in many rural communities.  The practice is open and notorious in Switzerland (God bless the Swiss). 

Swiss Militia man

(A Swiss Militia member openly carrying a battlefield rifle in a grocery store.  The blonde woman is not concerned – free people are not.  Source: Google Images.)

The local LP sent me a video of a law student telling off a police officer who “detained” the student over a firearm.  I seem to have misplaced the video link.  You can surely find it or something similar on Youtube.  Here’s my take on the matter.  First, Americans have every right to go armed just about anywhere they want to, even though many jurisdictions illegally attempt to block this right.  Second, sometimes discretion is the better part of valor – more on that in a second.  Third, in the Georgia and much of the South, we are lucky to have pro-gun law enforcement.  Many officers welcome armed citizens. 

Let’s assume for argument’s sake, you encounter an officer with a dimmer view of freedom.  Georgia and most other States allow concealed carry of weapons – usually with a permit.  I think those permits are UnConstitutional.  A few States like Vermont do not regulate of require such licenses.  This issue is slowing making its way through the courts.  We will see what becomes of it.  For now, if you carry concealed, play the government’s game.

To avoid an unwanted and unnecessary confrontation over your gun, carry concealed.  If they (the police or the easily alarmed) can’t see the weapon, they can’t inquire about it.  Some State’s licenses come with the requirement that a citizen inform any approaching or present law officer that they have a license and are carrying.  North and South Carolina come to mind.  This is also UnConstitutional.  Georgia is not such a State.  Say nothing in Georgia.  In fact, if you have the gun well concealed, say nothing wherever you are.  If they don’t know, they don’t know – and they don’t need to.

If you carry openly, which is your right, you may expect someone to alert the police to “a man with a gun.”  As a result, you may be approached by an officer.  This would be a quasi-tier one/two encounter.  Carrying a gun itself is not justification for any suspicion of wrongdoing.  The police will inquire anyway.  They may go as far as to handcuff you while they check your license and the gun.  This a violation of your civil rights.  I had a friend who was stopped by a traffic officer in Ludowici, Georgia one night.  The officer inquired about my friend’s pistol and took the gun to “check it.”  The officer then announced he would have to keep the gun until the next day in order to verify it really belonged to my friend and was carried properly.  This was in keeping with Ludowici’s long-standing policy of public harassment.

Before I became really upset about the story my friend told me it had ended well.  The Ludowici police chief, realised his officer had broken the law, immediately dispatched a courier to hand deliver the gun back to my friend.  As my friend was happy, the issue died.  A bloodless victory is the best kind as we say in court.

However, if you find yourself in a similar situation, the best thing to do is keep quiet.  Do not tell off the officer as the afore-noted law student did, even though you are completely right.  The police sometimes get nervous and arrest or murder “uppity” civilians and make up a good excuse for their actions in their report.  The street is not the place to fight for your rights – unless the officer endangers your life.  You can use force against the police if necessary, just as you would against any other armed thug.  But, these situations are messy at best. 

It is usually after such an encounter you should act – by contacting an attorney.  You may very well have a civil rights action against the police (State or local) under 42 U.S.C. § 1983 (or a Bivens action against federal officers [Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971)]).  An attorney can advise you in a particular case.

Two more specific situations, very briefly.  First, if you are involved in a self-defense shooting you will likely have contact with the police.  In such cases always identify yourself as the victim of the underlying crime.  In order to legally use deadly force against another, one must reasonable belive that one’s life is in imminent danger from a criminal actor who simultaneously posses the ability and the proximity to in fact endanger innocent life.  This is the general public standard, in most jurisdictions you have more leeway on your own property (stand your ground and castle statutes).

If you have to shoot someone (I hope you never do), report only the fact of the crime and that you ended it per the standard I just stated.  The police may want additional statements.  Do not make them.  Tell the officer you take the matter very seriously and that you need to, accordingly, speak with your attorney before making any additional statements or answering any other questions.  Again, if you are arrested (not always a given, here), say absolutely nothing.  I am referral attorney for the Armed Citizen’s Legal Defense Fund, based in Washington State, http://www.armedcitizensnetwork.org/.  The Fund has produced an excellent series of videos on this subject.  Legal and tactical shooting experts discuss in-depth how to handle these situations with your gun and with the law.  I recommend you purchase and review these videos. 

Second, if you are at home and the police knock on the door, do not open it.  Do not let the police in volutarily for any reason.  This by itself constitutes a consentual search (at least cursory).  If the police have authority (a warrant) to enter your home, they will do it rather than asking you for permission.  If they ask, they have no authority.  Don’t help them gain it.  I have former clients in prison because they opened a door for the police.  Don’t do it and don’t talk to them. 

Remember, in a specific case you may have, consult with a specific attorney for legal advice.

As for advice, nothing herein constitutes legal advice.  Consider this, rather, a general legal education.  When you see the police use common sense and do not talk if you can help it.  Doing the first and refraining from the second may save you many headaches.