The Kiley Law Firm Blog

When you leave the womb and greet the world your parents give you a name and put it on your birth certificate.  Nobody asks your opinion.  You get no chance to object.  As soon as they’ve determined whether your blanket should be blue or pink, they hang a name on you that you wear for the rest of your life.  So you don’t like the name Mabel?  Ignatz is not your preference?  Suck it up.  You can’t fight it.  Or can you?

You might be surprised to know that it’s relatively easy to change your name.  Article 6 of the Civil Rights Law of the State of New York outlines the procedure to make a change and the applicable rules.

People are most likely to change their surnames, rather than their given names.  But you may change either or both.  The most common scenario occurs when a wife assumes her husband’s surname at the altar.  But did you know that the marriage license application offers other options?  Under the Domestic Relations Law (D.R.L.) §15(b)(1) either or both spouses can change their names when they apply for a marriage license.  The application form prompts you to make the decision.  You can opt to change your name to:

(a)  your spouse’s surname,

(b)  your spouse’s former surname;

(c)  any name “combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse”; or

(iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname,  or  any  former  surname, of each of the spouses.

Confused?  Not nearly as much as your wedding guests will be when they receive a thank you card from “Mr. and Mrs. Schwartz-O’Reilly-DiGiorgio-Slovinsky.”

Your surname, doesn’t automatically change when you get married, but if you do elect to change your name on your marriage license, the license will be proof of the change.  The procedure is relatively simple, as long as it’s done coincidentally with applying for a marriage license.

Suppose you’re not getting married, but want to change your name for another reason.  Did your parents give you a first name that makes you the subject of derision?  Maybe your last name is too difficult to spell or embarrassing to say.  Or perhaps your parents just didn’t consider that certain given names shouldn’t be matched with certain surnames.  Consider the case of poor Anita Hoare who lives in Bournemouth, United Kingdom:  http://www.linkedin.com/pub/anita-hoare/26/472/2b0

For every Constance Noring, Adam Zapel, Chris Coe or Crystal Ball there is hope.  A petition under Civil Rights Law §60 must be in “writing, signed by the petitioner and verified in a like manner as a pleading in a court of record, and shall specify the grounds of the application, the name, date of birth, place of birth, age and residence of the individual whose name is proposed to be changed and the name which he or she proposes to assume.”

The petition must be approved by a judge who will inquire if you’ve been convicted of a crime or adjudicated a bankrupt or owe back child support.  You are required to disclose any judgments or liens of record or actions or proceedings against you.  If any of these situations apply, you’ll need to explain why the change is justified and is not a surreptitious attempt to avoid your legal obligations.  Similarly, if you have been convicted of a violent felony, your application must be made on notice to the district attorney, division of parole or county probation department.

If you pay your fee, file your petition, get approval from the court and publish the judge’s order in the newspaper that he directs, you may legally change your name.  There’s also a provision in the statute that may exempt a petitioner from publishing the order if the court reasonably believes that his or her safety may be risk.

So there is hope.  If you can’t stand that your name is “Duane Pipe,” you don’t have to take it anymore.  Get up!  Be the Earl E. Bird, and file your petition.  Tell the judge you’ve been to Helen Back.  When you make the change you can celebrate by having a Hy Ball and proclaim “Ida Clair, that I’m not a Lou Zar, anymore!”

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One of the least understood and, therefore, overlooked options for automobile insurance is the one that provides uninsured and underinsured liability coverage.  It is listed on the policy declarations page under the heading “UM/SUM.”

Uninsured Motorist coverage “UM” is mandated by New York State.  It protects the driver and passengers of a vehicle who are injured by uninsured negligent drivers.  Each car insured in New York State must have, at minimum, the basic “$25K/$50K” coverage.  That is, a maximum of $25,000.00 per injured person and a maximum of $50,000.00 to be divided among all injured persons.

Confused?  Here’s how it works.  If a thrice-convicted drunk driver forgets to pay his auto insurance premium and kills a forty-year-old father of four by rear ending him into a concrete divider, the man’s wife can recover $25,000.00 from his own insurance company under his basic UM coverage.

However, if one of his children is also in the car suffers a head injury and is permanently brain damaged, he too can recover $25,000.00.

But if a second child is in the backseat and sustains bilateral comminuted “tib/fib” fractures, his wife and the two children will split $50,000.00.  And not a dime more.

“Wow,” you might wonder, “how can this family be financially protected from such an unfathomable tragedy?”  That’s where “Supplemental Underinsured Motorist” coverage helps.  If Dad has a $300K/$500K liability policy with DoRight Insurance Company, he can purchase SUM coverage up to the same amount as his liability coverage.  Then if the driver has no insurance or a policy with lower liability coverage, his own insurance company will indemnify him for the difference between the two policies.  So, if Dad was alone in the car, his wife could recover $275,000.00 from DoRight.  And if two or more people were in the vehicle, they will split $450,000.00 between them.

Purchasing UM/SUM coverage for the same limits as your liability insurance makes sense.  It’s the only way to protect yourself against uninsured and underinsured drivers.  And who wouldn’t want to protect himself and his loved ones as much as he protects a stranger?  Besides UM/SUM coverage is cheaper than a ten-dollar whore at a French seaport and UM/SUM claims are not “charged against” the owner’s policy.

So . . . why doesn’t every owner buy the maximum coverage?  There are several reasons:

(1)        IGNORANCE.  Many people just don’t understand how automobile insurance works.

(2)        STUPIDITY.  Some drivers ignore the advice of well-informed and well-intentioned insurance brokers (most are in this category) who recommend that they purchase the maximum UM/SUM.

(3)        AVARICE.  A few sleazy insurance brokers know that there is little profit to be made selling UM/SUM coverage and try to lure customers by selling policies with the cheapest premiums.

(4)        SLOTH.  A few other brokers are too lazy to bother scrutinizing the policy or explaining to the customer how SUM works and why it is so important.

Don’t fall victim to one of these sins.  Examine your insurance policy.  If you have the maximum UM/SUM coverage, pat yourself on the back, praise your insurance broker or thank your lucky stars. If you don’t have the coverage, wake up, get smart and find a good broker.

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                If you are ever called for jury duty, the lawyers will say that they are looking for jurors who will be impartial.  They’re lying.  Any trial lawyer worth his salt wants jurors who will favor his client.  The jury system works when each lawyer is able to “strike” the jurors who would seem to favor the other litigant.  Each lawyer can “challenge” and eliminate any and all jurors who admit that they are predisposed to favor the other side.  But what about the jurors who say they will be fair but harbor sympathies for one side or another?  Luckily, each lawyer has a certain number (usually three) of “peremptory challenges” which may be exercised to remove a juror who the lawyer believes may harbor secret or latent sympathies for the other litigant – or worse, hate your client.  Sorting the jurors who favor your client from the ones who won’t is a tricky business. 

                Historically, attorneys select jurors based on intuition and formulaic profile.  Some lawyers hire jury consultants to render expert insight into human behavior.  But looking for jurors who will “like” your client is more of an art form than a science project.  Most people harbor prejudices of one type or another.  These are not always nefarious and many come from innocent practical experience.  Juror “number one” might like cab drivers because she’s married to one.  Juror “number two” – who’s actually ridden in a cab – might think that cab drivers are inherently reckless.  Oops . . .  there I’ve divulged one of my biases.  The problem with jury selection is that the average person doesn’t like to admit that he or she may be prejudiced, especially when challenged by a lawyer in front of the other members of the jury panel.  “Mrs. Smith,” the lawyer might ask “I know that your son was killed by a cab driver driving on the sidewalk in Manhattan, but won’t you will be fair to my client?”  In truth, it’s not that Mrs. Smith won’t be fair; she can’t be fair.  And that’s understandable.  As far as I know there was only one Mother Theresa and she’s dead and won’t be in the jury pool.  The only way that a juror may truly be fair is to recognize and admit his or her inclinations.

                The challenge for the trial lawyer is to discern a candidate’s personal history and predispositions in the space of a few minutes.  This is why attorneys profile potential jurors based upon career, education, geographic origin, race and ethnicity.  By profiling, the lawyer may seem to be showing his own prejudices.  In fact, he’s trying to intuit the jurors’ prejudices and has to rely on stereotypes to do so.  Homeowners and shopkeepers typically don’t like people who bring lawsuits when they trip and fall.  Elderly white people from Douglaston Manor typically fear black rappers from Jamaica.  Kindergarten teachers typically cry when they hear that a little child was hurt in a car accident.  Bankers typically don’t like anyone who sues for money damages (unless, of course they themselves are injured.)         

                It’s illegal to racially profile jurors, as the United States Supreme Court outlawed this practice in the case of Batson v. Kentucky,476 U.S. 79 (1986).  Mr. Batson was a black man who was convicted of burglary.  During voire dire (jury selection), the prosecutor peremptorily challenged all four black people on the jury panel.  Batson’s conviction was overturned on appeal because his jury was exclusively composed of white people.  The stated reasoning behind the Court’s decision was that a man is entitled to be tried by a jury which represents a cross section of his community.  Of course, the Court’s unstated conclusion was that a black man charged with burglary in Kentucky doesn’t have a puncher’s chance to be acquitted by twelve white people.  In reality, the Batson jurors may have been fair-minded, color-blind people and Mr. Batson may have been caught red-handed.  It’s just that the case didn’t pass the “smell test.”  Yet in making its decision the Supreme Court Justices expressed their own prejudices against white southerners.  Why did they do so?  Because guaranteeing a fair trial for Batson was more important than offending the sensibilities of the jurors whose liberty was not in issue.  Since Batson, courts have extended the prohibition against profiling to include gender-based jury challenges but the courts have expressed no opinion about other types of profiling.    

                In fact, racial and sexual profiling continues to be an acknowledged, if sub rosa, jury selection technique.  An injured plaintiff typically wants a jury composed of liberal-minded, soft-hearted, generous, empathetic people.  Defendants typically prefer conservative, unemotional, and financially prudent people.  The risk in stereotyping is that people are not always who they seem to be.  So it’s important to get a feel for the person behind his or her job, race, color, address or educational background.  Therein lies the rub and it’s most important to ask questions of the juror which will provide insight as to their character, thought processes and personal experiences. 

Next: Picking a Jury in Queens County

“Eeeney, Meeney, Miney, Moe”

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Lately, we’ve been flooded with mail from readers with legal problems and questions. I thought it would be appropriate to use the Kiley Blog to post some of the better ones.

A desperate housewife posed question about divorce law:

Dear Blogger,

My husband doesn’t seem to understand me and won’t communicate. I try to engage him in conversation but he mostly just grunts in response. I try to put the spark back in our marriage but he only says, “Fire . . . bad.” He’s abusive, but usually focuses his anger on local villagers carrying pitchforks. Sometimes, I think he’s a real monster. Do I have grounds for divorce?

Signed,

The Bride of Frankenstein

Dear Bride,

You’re in luck. On October 13, 2010, the New York State legislature passed a no-fault divorce statute. You can now bring an irretrievable-breakdown divorce action under D.R.L. §170(7). Good luck finding a process server.

 A merchant wrote a question about the Uniform Commercial Code (U.C.C):

Dear Blogger,

I wanted to order a supply of straight edge razors, but my office manager accidentally ordered a pallet of double blade Gillette Venus razors. They’re so safe. You can’t even nick someone with one. Do I have to take delivery of them?

Signed,

The Demon Barber of Fleet Street

Dear Barber,

§ 2-507 of the UCC regards Effect of Seller’s Tender; Delivery on Condition. Sub-section

(1) provides that “tender of delivery is a condition to the buyer’s duty to accept the goods and, unless otherwise agreed, to his duty to pay for them.” If I were you, I’d keep them, break them in half and sell them to the old lady at the end of the street who’ll stick them in apples and give them to trick-or-treaters.

Another reader asked a question about criminal law:

Dear Blogger,

I’ve been a very bad boy and committed mass murder. Well, to be truthful, I’ve committed several mass murders. You see, it’s a sequel thing and the movie-going public can’t seem to get enough. Now, I’m concerned that I may be caught and prosecuted. I’ve got two questions. First, I’ve got a contract for two more pictures. Can my director be convicted for aiding and abetting me? Second, what’s the difference between consecutive and concurrent sentencing.

Signed,

Freddy (Last name withheld upon request)

Dear Fred,

If your director is directly responsible for the actus reus (guilty act), he’ll be considered your joint principal and could be charged for the actual crime. But if he merely encourages you to “go with it” and be creative, he’d only be guilty of being an accessory to your crimes. As to your second question, New York State Penal Law § 70.25 (2) provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” As for the applicability of your facts to the law, I have to admit that I’m not a fan of the genre. You’ll have to ask Roger Ebert.

This reader was named the as beneficiary in his probate a neighbor’s will but was frustrated by the probate process.

Dear Blogger,

I helped a neighbor write his biography and he named me as the sole beneficiary in his will. The man was pretty much a loner and only came out at night. I’d have to confess that he was a little batty. He was very old when he died and I can’t find his birth certificate. Also, he grew up in a remote section of Romania and I can’t seem to find his family. What should I do?

Signed,

Bram Stoker

Dear Bram,

You’ve got a problem. The New York State Estates, Powers and Trusts Law (EPTL) requires you to locate his heirs at law. If he had no spouse or children, you’ll need to research his family tree all the way back to his grandparents on both sides. You’ve got to diligently do your research. If I were you, I’d spend the money to hire a genealogist. Why not go with him and make a vacation out of it. I’ve heard that Transylvania is beautiful this time of year.

Dear Readers,

Keep those questions coming in. I’ll be happy to answer them or not, depending on my moods.

Sincerely,

The Blogger

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In the 3^rd Millennium, prehistoric man picked up his hunting and gathering tools and moved to Mesopotamia to live with his fellow former cavemen. Thus, began civilization. The dawn of the next day witnessed the first dispute between adjacent landowners. It probably started over something minor. Perhaps Uruku’s camel too frequently fertilized Ebarbar’s front lawn. An argument ensued over picayune matters and quickly escalated to a full-blown feud until Ebarbar finally settled the matter by burying the hatchet . . . in Uruku’s skull.

After Hammurabi codified the laws, the hatchet solution became passé. So was spawned the first lawyer. Five thousand years later people still fight with their neighbors and lawyers are still busy.

Not-so-neighborly disputes arise over boundary lines, shared driveways, noise complaints and innumerable other actual or perceived injuries. To solve these problems, I advise my clients of their five options:

You can sue the bastards, but civil litigation is costly.

You can do like Ebarbar did, but criminal defense attorneys are also expensive and felony murder can get you a long prison term.

You can try to work it out.

You can ignore it.

You can move.

If the offense is minor, I always advise the client to choose option three and fallback on option four. No matter how many times your neighbor puts his trash cans on your side of the driveway, it’s not worth it to sue him. If you do, it will cost you money, time and aggravation. And it won’t solve the problem. You’ll find yourself mired in the quagmire of trench warfare which will make you paranoid and anxious. You’ll never again feel that you are at “home sweet home.”

Some offenses cannot be ignored or excused. If your neighbor paves over your lawn to make a larger driveway for his boat and RV, his encroachment impairs the value of your land and clouds your title – perhaps making it unmarketable. What can you do in such a case?

First, you should research the title to your property to see who owns the land in question. Check for easements, which are recorded agreements permitting adjacent property owners to use or cross your land. It may be that a prior owner gave your neighbor the right to place his driveway next to your geraniums.

It is essential to know your property line. Where does your land end and his begin? Only a licensed land surveyor can make that determination. It’s expensive to obtain a new survey. But if your surveyor can locate an existing survey, he can compare it with the “meets and bounds” description in your deed. He will measure your property by reference to fixed points such as intersections. The surveyor researches available property records and compares adjoining properties. He then measures distances with references to compass points to identify your property lines. Ask the surveyor to “stake the property” so that you can see for yourself and show your neighbor.

If your inspection reveals that your neighbor’s driveway is less that one foot inside your property line, a title company will insure the property as such deviations are minor. However, if own a small lot, a one foot encroachment can be significant regardless that your ownership is insured. Then, it’s your call whether to make an issue of it.

If the surveyor confirms that your neighbor’s driveway extends more than one foot onto your land you must take action to remedy the problem and reclaim the land. Even if you don’t mind the intrusion, it may prevent you from selling the house if your buyer can’t get title insurance or his mortgage lender determines that the value of the “lost” property severely impairs their investment. In the worst case scenario, an obvious, obtrusive and offensive use of your land for more than ten years will allow your neighbor to take the property by “adverse possession.”

What then can you do? Machiavelli once said, “There is no avoiding war; it can only be postponed to the advantage of others.” But he didn’t have to pay a lawyer or live next door to his mortal enemy. Decide if the encroachment really bothers you or significantly impairs your use of the property. If not, one solution is to negotiate and sign a Boundary Line Agreement, by which you may permit your neighbor to use the land with the understanding that he doesn’t own it. It’s a good compromise. He keeps his driveway and avoids the cost and inconvenience of relocating it. You keep good title to the property and avoid the cost of litigation. You both avoid conflict which is essential to your sanity and peace of mind. Remember. You live here. This is “home” where you should be safe and happy.

The Boundary Line Agreement can be drafted so that it will expire upon a future event, such as when your neighbor sells the property or needs to repave the driveway. That provides a permanent but bloodless solution.

If you’ve tried unsuccessfully to resolve the problem amicably, it will be easier to justify spending the time and money to sue him.

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It’s been a memorable August on Long Island punctuated by two rare natural disasters – an earthquake and a hurricane. The earthquake did little more that shake our buildings and our nerves. But Hurricane Irene’s unleashed fury caused billions of dollars in property damage. Yesterday’s Newsday headline pronounced that the LIPA bill to restore power would exceed $100 Million. Surely we’ll all pick up a piece of that unwelcome tab; but what about the individual costs that many people incurred. Power outages caused basements to flood, freezers to defrost and young children to go through video-game withdrawal.

The storm was the cause for disaster but its proxies were the trees which downed our power lines. Some were uprooted and others lost limbs. But whether they were killed or merely became amputees, their kamikaze missions claimed thousands of victims.

An Irish client of mine was knocked to the ground by a large falling tree limb. He sustained minor injuries but was saved from being serious hurt when the fence he walked beside deflected the brunt of the blow. When a witness told him that he was lucky the fence was there, he retorted with typical Gaelic sarcasm that if was really lucky he would have been walking on the other side of the street.

Thankfully, most of the casualties were inanimate, but the associated financial pain was acute nonetheless.

So after you’ve paid for the damage to your car, roof or fence, do you have any recourse against the owner of the tree? The answer is . . . maybe. Property owners owe a duty of care to neighbors and passersby to keep their properties free from dangerous conditions. However, the owner is not responsible in the event an “act of God” causes the tree to fall. Irene was a bad storm, but bad storms are expected events. God wil lnot take the blame if your obviously rotted tree falls in a rainstorm because you didn’t bother to cut it down.

The owner’s duty of care is only triggered when he knows about the dangerous condition (actual notice) or should know about it (constructive notice). The law is different for municipalities such as towns and cities which are only liable if they receive prior written notice that the tree presents a hazard. Even then, they are exempt unless the aggrieved party serves written notice of his intention to sue within ninety days after the accident. (See §50 (e) of the Municipal Law of the State of New York). Municipalities are otherwise exempt from liability by governmental immunity, a hangover from feudal times when being a peasant was never pleasant.

Next: What to Do if You’ve Been Damaged

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Personal injury plaintiffs are routinely derided by the general public as phonies. Certainly, there are unscrupulous plaintiffs and lawyers who bring smear-job lawsuits. But too few people are cognizant of the dark side of the defendant’s defense.

If you bring a lawsuit for personal injuries, §3121 of the Civil Practice Laws and Rules of the State of New York (CPLR), permits the defendant’s insurance company to hire its own doctors to physically examine you. The purpose is obvious. Defendants have the right to verify whether a plaintiff is actually injured and the extent to which the injuries are permanent and/or disabling. Defendants euphemistically refer to these tests as “Independent Medical Examinations” or “IME’s” because the CPLR gives them the right to evaluate the plaintiff separately from what the plaintiff and his doctors may claim. To describe the defendant’s physical examination as “independent” lends an aura of righteousness to the endeavor as though only the defendant’s doctor may uphold his sacred Hippocratic oath to practice his profession ethically and without outside influences. Nothing could be farther from the truth. The doctors who conduct the examinations are paid by the defendants’ insurance companies. They serve at the whim of the insurance company. In so doing, many take a “hypocritical” oath. The doctor who too often determines that a plaintiff is seriously or permanently injured finds himself out of favor with his patron and unemployed. But certainly not all.

More often than not, the defendant’s doctor renders his services at a bulk rate. He may be paid only $100.00 per examination. How does he do it? Volume. He overbooks his appointments and examines plaintiffs in assembly-line fashion. He doesn’t dictate a full report but uses fill-in-the-blank templates forms to save time. Rare is the occasion when the physician spends more than five minutes examining the plaintiff. Rarer still is the occasion when the physician determines that the plaintiff is truly injured as a result of the defendant’s negligence.

Generally, there are five different methods by which the defendant’s doctor plies his tawdry trade to refute a plaintiff’s claim of injury:

(1) IT’S ALL IN YOUR HEAD: By this approach the doctor pejoratively references the plaintiff’s symptoms as “subjective.” If the plaintiff says that he has pain and can’t move his arm, the doctor claims that he has objectively measured the plaintiff’s range of motion and finds that he is not so restricted or that his range of motion is “within normal limits.” But what is normal? A thirty-year-old athlete can swing his arm in a wider circle than a fifty-year-old fat man who won’t get off the couch unless he needs to reach the cooler. Most times the examiner makes no distinction. God help the couch potato.

(2) NOT MY FAULT: Another twisted method is to claim that the plaintiff’s problems are “pre-existing” or the result of “degeneration.” True, few people more than forty can avoid the aging process. But how may the IME doctor explain that the plaintiff was asymptomatic until his Volkswagon Beetle was struck from behind by a teenager in his father’s Range Rover? Too frequently they ignore such facts or do not let themselves be fooled by the truth.

(3) THIS TOO WILL PASS: Sometimes IME doctors are faced by the physical evidence that the plaintiff is irrefutably and uncontestedly injured. How then may he serve his master? In such a case, the doctor must resort to a fallback position – “the plaintiff’s injuries are temporary.” Sure, little Joey still limps four years after breaking his ankle. Shortly he will fully recover.

(4) HALLELUJAH! JESUS SAVES: Another artifice in the IME arsenal is the technique wherein the defendant’s doctor proclaims the plaintiff remarkable recovery. Like a Pentecostal Preacher, he asserts that the plaintiff may throw away his crutches and walk.

(5) THE RORSCHACH APPROACH: Perhaps most sinister are the physicians who do not physically examine a plaintiff, but “review” the radiological records instead. The doctors who prepare such reports are uniquely positioned to practice medicine without a patient. Behind the cloak of a shadowbox they offer their not-so-professional opinions. Ask one man to look at an inkblot and he sees a monkey with an accordion. The next man sees a ballerina smoking a cigar. So if the plaintiff’s radiologist says that an MRI film shows a herniated cervical disc, the defendant’s doctor may say that the findings are evidence of degenerative osteophyte formations. Put the film in front of the jurors and call it what you want. The average person can’t tell. As Harry Truman said, “if you can’t convince them, confuse them.”

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Tomorrow my wife Maria and I will bring our daughter, Ally, (and loads of our money) to Harvard where she will begin her freshman year. She has been packing for two weeks and I will need to rent a small semi to get all her things to Boston. I remember my parents sent me to Colgate with a trunk full of jeans and flannel shirts, some toiletries, and a winter coat (which I started wearing in October, I might add).

I’m sure that some of the differences between what I brought to Colgate and what Ally will bring to Harvard are gender-based. But the technical toys and modern conveniences that she has at her disposal are so far removed from my college experience to make me think I went to school during the dark ages. For instance:

• Ally has a 3G Droid cell phone on which she can surf the internet; I had quarters and waited in line to use the hall phone at Center Stillman Hall;
• She will have sushi and sashimi at a posh student “eatery”; I ate slop at the SAGA mess hall if I was hungry enough to brave the alpine trek from the Freshman Quadrangle to the bottom of Cardiac Hill and back up again.
• She has an Apple computer and word-processing software to prepare “documents”; I knew a coed in West Stillman who would type my term paper for money IF I gave her enough lead time. Oh. And I also had all the apples I wanted if I was desperate enough to brave the ice and wind down the mountain and back up again;
• She has an I-Pod so small she can carry it in her hip pocket; I had a turntable that traveled no farther than the longest extension cord.
• She will have wi-fi, hi-def and cable television with over 200 channels; my dorm had a rabbit ear-ed black and white TV that played three Syracuse stations.

Then again, my parents paid $5,500/year in tuition, etc.; Maria and I will pay $55,000.00. Why is it that I feel I have been shortchanged twice?

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It’s one of the lessons they don’t teach in law school or in any of the scholarly tomes on legal jurisprudence. Until you learn it, you are doomed to fail: there are three parties to every lawsuit: the plaintiff, the defendant and the judge. And the man* in the black dress trumps the other two every time.

Underneath the dress, judges are real people. Like all, they have strengths and weaknesses. But there are two prototypes – the “good judge” and the “bad judge.”

The good judge avoids the spotlight and is invisible until trouble brews. He has control at all times, but lets the lawyers try their own cases. He understands that real lawyers have more than one case. He knows that lawyers are real people with families and personal lives. He “moves” his caseload promptly. He also knows when a lawyer truly needs an adjournment and gives it to him. He can’t be walked over. He commands respect without having to demand it. He knows (or learns) the applicable law and all the proper rules of evidence and civil procedure. He makes prompt procedural decisions, but not until he first permits the lawyers to make their legal arguments. He doesn’t take offense easily or arbitrarily threaten to hold attorneys in contempt. He understands that expert witnesses have professional practices and tries to accommodate their busy schedules, knowing that the litigants will suffer if he precludes the expert’s testimony because he is not available at the judge’s “beck and call.” He is willing to work when the trial starts and not procrastinate. He doesn’t try to scare the parties or harass the lawyers. He makes the jurors comfortable. He is an honor to the sacred oath he takes to uphold the “public trust” and faithfully and impartially discharge and perform all the duties incumbent upon them. In short, he channels the wisdom of King Solomon, who implored God to give him “an understanding heart to judge thy people and to know good and evil.”

The bad judge can hurt or kill your case.  He behaves like a tyrant. He interposes himself unnecessarily and tries the case for the lawyer, frequently losing it. He makes facial gestures to the jury, improperly and surrepticiously opining about the evidence in ways that won’t show on the record and, therefore, cannot be appealed. He doesn’t care whether justice is served, as long as he “moves” the case. He will pressure whichever side seems most pliable, regardless of the equities. He will “ice” the jurors by making them  wait  unnecessarily until they become so jaundiced by “the process” that the lawyers feel compelled to settle. He will unnecessarily berate an attorney, often threatening to hold him in contempt.  He relishes the chance to harangue inexperienced lawyers. He doesn’t know the law and doesn’t care to learn it. He forces the lawyers to produce expert witnesses at times when the witnesses have genuine scheduling conflicts, thereby creating unwarranted and untenable animosities between the witness and the lawyer. He makes attorneys sit and wait for days to pick a jury thereby creating office management problems. In short, he promotes the sale of Pepcid, Pepto Bismol, Xanax and Prozac.

Perry Mason, Boston Legal, L.A. Law, Law & Order miss the real action which frequently happens on the bench.  Judges rule their courtrooms like feudal lords. The great ones are like Solomon: wise and courteous. The bad ones are stupid, lazy and/or nasty. Once a client gave me a sweatshirt imprinted with the words, “A good lawyer knows the law. A great lawyer knows the judge.” The lawyer who can’t tell the difference between the good and bad judges, is doomed.

* Author’s Comment: the blogger takes literary license to use masculine pronouns so that the prose flows and does not cause the reader to doze.

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“If you want it, here it is, come and get it, but you better worry ’cause it’s costs some cash.”

I was a first year law student attending my first day of class at the College of William and Mary and espoused with a thirst to for knowledge – to learn “the law.” Socrates would have been proud.

The course was titled, Property 101. Professor Pompous stood before the class. “Who among you,” he queried, “believes that possession is 9/10th of the law?” I raised my hand. So did many of my classmates; the rest wondering if it was a trick question. “Put down your hands,” he said with a smile. “By the end of the year you will learn that ‘possession’ is meaningless. The rule of law prevails.”

And so we journeyed through the course – from real property to personal property:

• Leasehold rights passed from lords to knights.
• Title chains lost and gained.
• Adverse possession? An ownership obsession.
• Riparian rights about the water? Does it matter – cash or barter.
• Who owns the air? Sometimes its shared.
• The statute of frauds; decisions narrow and broad.
• Equitable conversion and ownership reversion.
• Inter vivos gifts and partnership rifts.

He went on and on.   

By May, I was convinced. Later, imbued with confidence and my knowledge of “the law”, I emerged from the ivory tower of learning, passed the bar exam and began to practice law. It took about a month to learn that everything Professor Pompous taught me was a fairy tale. If John’s tool shed is on Jane’s land, she needs to pay a lawyer to sue him to have her day in court. That takes time and money. If she wins, he can appeal. If he loses the appeal and he still doesn’t remove the shed, she’s got to sue to enforce the judgment. If she doesn’t have the patience or the money, she loses.

My world was shattered. It was like learning that there was no Santa Clause, that the Easter Bunny didn’t eat the carrot I had left the night before.

I looked it up. When Professor Pompous graduated from law school, he worked for a “white shoe” corporate law firm long enough to have a cup of coffee. Then he decided to teach. He didn’t know jack.

In the real world, possession may not be 9/10 th of the law, but it’s better than half.

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