Excerpts - Consumers' Guide

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The following excerpts from Consumers' Guide to Surviving Lawyers, a forthcoming book by David K. Speaker and Probizwriters LLC, provide a sampling of the Consumers' Guide material. We hope you find it illuminating:

First Excerpt:

Don’t expect courts to be rational or logical or common sensible. Their motives and perspectives can be quite varied and unpredictable.

Just because they can get it right and are supposed to be very good at making judgments, doesn’t mean they will get it right. There isn’t any 5-year post graduate college for “Judges.” You can get an LLM after you’ve secured a JD, but they don’t offer a JJD in judging. Maybe they ought to. Any lawyer with a recognizable last name can rise to being a judge. You don’t have to take an exam like the bar exam to be a judge (the Bench Exam?). It’s a bit odd, given the responsibilities we expect Judges to shoulder, isn’t it? Shouldn’t we be examining their fitness more thoroughly? You and your lawyer should look carefully at the bench you’re in front of, its character and propensities, in governing the choices you make in that proceeding.

Being a judge is very different than being a lawyer. Why isn’t there a different educational requirement? Almost all lawyers in this country are lawyers first and forever. So you’ve heard all those lawyer jokes, right? You’re aware of how everyone thinks lawyers are crooks and cheats, etc? Well, judges are just lawyers in black robes, so don’t expect that they somehow magically transform into something nearing perfection when they put the robe on. They don’t. Sometimes they get worse. They actually start believing they know everything.

“Judges do not cease to be human beings when they go on the bench. In important cases, it is my humble opinion that finding the right answer is often the least difficult problem. Having the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism is often much more difficult... The Founders warned us that freedom requires constant vigilance, and repeated action. It is said that, when asked what sort of government the Founders had created, Benjamin Franklin replied that they had given us `A Republic, if you can keep it.' Today, as in the past, we will need a brave `civic virtue,' not a timid civility, to keep our republic.” —Justice Clarence Thomas

Justice Thomas’ statement illustrates the point that judges, by nature, have limitations, are subject to influences, and should not be mistaken for perfect beings capable of issuing perfect rulings. Many judges today have timid civility, because the alternative, a brave civic virtue, is risky. The vast majority of judges strive to avoid being controversial. They will jump through hoops to make everyone happy and keep the peace. Unfortunately, a sufficient number thrive on being controversial, and sadly they are usually the ones who invite or incite controversy through their rigid adherence to popular cultural sentiments. Such sentiments are transient by nature and thus risky to the common good. It is rarely the deliberate, conservative, long-view, student-of-history types who invite controversy through their boldness.

In our culture having clear guiding principles inform our decisions is seen as an affront to the dogma of moral relativism (no one’s perception of right and wrong is any better than any one else’s, and we’re all entitled to our own opinion). Many of our judges suffer from the limitations imposed by a culture of moral relativism (where none of us are qualified to judge others, because standards of right and wrong no longer exist. Where it’s not “fair” to judge others).

So, it’s hard to be a tough guy on the bench in these days of “tolerance.” It’s the path of least resistance to just get along. But we need more tough guys on the bench, and until our culture morphs and permits that to happen, we’ll continue to see our judiciary hamstrung by moral relativism.

The point here is to add perspective to your expectation and the myth that “if I’m right, I should win.” If there’s no right and wrong and standards of conduct have become like putty, how do we expect decisions and choices to be made? Haven’t we removed the primary tool of the judiciary?

So knowing the limits of these judges that you expect will reach the right conclusion is important when considering your options. (Do I go to court or not?) If you need a tough guy to make a tough decision about complicated matters, it’s possible you’ll land a judge that fits the bill, but not probable. It’s this risk that makes it worth considering available options other than trial.

Second Excerpt:

Resources and Tools Available to Lawyers:

Lawyers ply their trade with their experience, their education, and their tools. What’s in the toolbox? A lot. And more tools are emerging all the time. It used to be fairly static. The tools were the case reporting services, the statute reporting services, form books, and the legal treatises on separate subject areas.

The tool box paradigm shifted in the early 1990s with the availability of affordable, searchable digital technology. The new dynamic is now accelerating. The information revolution and internet have made traditional legal tools look like children’s toys … well, quaint historic relics. All law books in print are now available on line in digital format. The emerging power now accessible to lawyers outstrips their ability to keep up with it all, much less remain technically proficient.

So, clients need to understand how the issue of “toolbox change” affects them. The extent to which any individual lawyer keeps up with these tools varies widely. Some are right on top of it. Others, are old school and don’t have a knack for high tech. Others are too busy, or delegate the function to subordinates.

For the client, a lawyer’s access to the tools and efficiency in using them are the issues here. Does your lawyer have the access and does he make effective use of the available tools. If not, your lawyer is at a distinct disadvantage, and you are risking your money and your legal matter.

In Appendix “A,” we list and briefly describe numerous tools and how the savvy lawyers use them. Appendix “A” describes in layman’s terms what the various tools are and what they do, how the lawyer uses them and why they are beneficial to the client. If you know what the tools are that your lawyer could be using or ought to be using, then you’re in a position to make sure he’s doing all he can do to properly or effectively handle your legal matter. You’re also in a position, if you have the energy and time, to access these tools yourself, which enables you to do a lot of homework.

Lawyers employed by large law firms typically have all the cool tools, and extensive in-house law libraries. But, even there, you the Client need to be aware of the tools available to your lawyers, in order to fully understand what lawyers can and ought to do for you with the appropriate tools. Understanding the tools available to your lawyer improves your dialog about managing the legal matter at hand.

While private practitioners have historically been at a disadvantage regarding affordable access to tools, the playing field has been leveled a lot in the last decade with internet based resources. But tools and access to information still cost money, and still take time. Example: just having the staff to do the research and find the supporting law pertaining to a particular point takes resources. Larger firms have plenty of systems and people to actually do this work. Smaller firms are not as readily able from a manpower and systems hardware standpoint to tend to these details efficiently. That’s not to say that the small firms can’t or don’t. They can and they do, it’s just not as easy.

Sometimes lawyers don’t think of everything. After all, we are all victims of the limits of our experience. If you think your lawyer may be missing or sidestepping something important, or doesn’t have the time or resources to look into important aspects of the matter at hand, your familiarity with the various resources here may help.

Third Excerpt:

The legal system in the United States is an “adversary” system. When lawyers are brought in they are advocating the interests of one side of a legal matter. That’s how many lawyers view their role, and in many circumstances that's how they must view it.

Many legal matters, however, are not adversarial in nature, at least not in the parties' minds. Once lawyers are involved, matters often become adversarial; because the various interests are then separately represented, pitting them against each other, each lawyer striving to outdo the opposition (and win, and advance their reputation). Lawyers are unlikely to frame the issue as one of “mutually cooperating to serve the same object, while serving the parties' respective interests.”

So, when deciding to put a lawyer into the mix, be careful to understand for yourself, “is this an adversarial situation where I have to ‘win’ against the other party in order to accomplish my mission,” or “is the mission non-adversarial, where the object is the same and the parties’ separate interests not that divergent?”

Ask yourself: "How do my interests diverge from those of the other parties? Do they diverge, are they the same?"

All excerpted material Copyright 2006-2013 David K. Speaker and Probizwriters, LLC. All Rights Reserved.

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