Questions And Answers

My answers to selected law-related questions on Quora. Thanks for reading.
Shawn M. Winterich

If a lawyer wants to take someone to court, do they get a lawyer?

Depends on the size of a dispute. In a small case, usually not. In a large case, or in a divorce, probably so.

Is it possible for my attorney to attend the court instead of me?

In the case of most civil hearings, yes. For trials you usually need to be present. You cannot be required to be present unless subpoenaed by the other side.

What exactly is attorney client priviledge in layman’s terms? (sic)

Without outlining all the contours and exceptions to the rule, a lawyer and a client (or client to-be) cannot be required to discuss or testify about the communications that arose from the attorney-client relationship.

As a lawyer, have you had a client who knew more than you about the law?

Occasionally, yes, but not in the areas I practice in, or they would not need me. This includes other lawyers and at least one lay person who comes to mind.

Can a defendant ever sue a juror for convicting them?

Sue, yes. Anyone can sue anyone for anything. Sue successfully? No way.

What traits does Kim Kardashian West possess that would make her a good lawyer?

Let’s just say that law is a sedentary profession….

As a lawyer, what situation made it hard for you to keep a straight face?

Busting my opponent for perjury. The judge was yelling at him for lying in a deposition. Because now—in open court—he was giving a different answer to the judge asking the same question I had asked him just a couple weeks before.

This wasn’t at a trial; it was at a discovery hearing. My opponent was a physician—much older than me—who was running a laser skin clinic (i.e., cash practice) with his 30 years-younger wife. These type of practices can be cash cows: you barely need staff other than to process credit cards, (medical assistant) patient questionnaires, (nurse) patient exams, (wife receptionist) phone calls and appointments, and (physician perjurer) cash procedures. Scant exam and office notes, no billing, no insurance. The doctor had enough cash flow at one time to incur significant debt. And he owed my client bank the mid-six figures—which he said he could never repay—and he was indignant about answering my deposition questions about what money he did have, though he had been ordered to do exactly that. He was hiding some of the money he did have using a company he had set up in Nevada (red flag; all the parties were in Georgia), which is what he lied about.

The doctor had acted so badass when I deposed him, it did make me want to smile (with teeth showing) when the judge loudly, embarrassingly, put him in his place, just after the judge unwrapped the sealed deposition copy I handed him across the bench, cellophane crackling. “Page 44, Your Honor, lines 8 through 16,” I pinpointed the doctor’s lie under oath. I frowned on my way up there to suppress my face. My back now to the bench, I wide-smiled on my way back to my own chair. My opponent—no longer worried about me—was transfixed on the bench like a rabbit waiting for a cobra to strike.

The judge read back the doctor’s deposition testimony. The thunderbolt: I could tell by voice inflection that the judge “got it”. A pause of several seconds. The cellophane transcript he closed, noisily placed back in the wrapper and tossed back on the bench. Not a sound, of course, from the dozens of spectators who had cases after me. No one wants to be before a judge someone else already pissed off.

Now for the “lightning:” “That’s not what you just told me right here!” the judge yelled, gesturing angrily at the transcript that would never need to be used again. This guy’s goose was cooked! The tongue lashing went on, and on and on. Every ounce of hatred in the judge’s soul—that he had ever felt towards anything in his whole life—was concentrated and focused on this one perjurer sitting before him. It was thoroughly unpleasant, for him (perhaps cathartic for the judge). I swear, if he could have, he would have paddled him.

Both the judge and I respected my opposing lawyer, the one representing the doctor, whom I’ll call “Bill.” The judge, in fact, knew Bill very well (to the point of mentoring him) and bent over backwards not to show favoritism. The judge also happened to know debtor-creditor law well. I took no pleasure in doing so but could not “educate” Bill that his firm’s client had lied to me before hiring his firm. What Bill and I both knew was how much this judge hated perjurers. Bill’s firm was too cheap or shortsighted to order a copy of the depo transcript, and Bill’s boss had not informed him how badly the depo had gone for their new client, because the doctor had no lawyer when he deposed. If they had, I know Bill would have caught the lie and contained the damage.

Some “inside baseball:” Bill was with a bankruptcy firm that had a good reputation but by this time was resting on its laurels, as shown by the fact that the doctor was obviously dumped in his lap. He took me aside and explained that he had been dumped on afterward. They didn’t care how badly their firm and Bill looked in front of the debtor-creditor expert judge, and obviously Bill was not receiving the respect he deserved. It was totally unacceptable for Bill’s boss not to have ordered the transcript, given his lack of knowledge of what happened at the depo. (You have to be ready for your client to have forgotten minor details that are damaging, or less typically, scary testimony.) It is difficult to prove in court that a witness deliberately was untruthful, but this time it was crystal clear and Bill could do nothing. If I were Bill, I would have had a chat with my boss about how bad the firm looked, and how bad they made him look, which I bet Bill did. Bill soon took a couple other “refugee” lawyers from the same firm with him and they started their own shop. After several key defections, what remained behind was nothing special.

The lie—now exposed—had cost me a lot of late hours and cost my client a lot of money. This was a “perfect storm” of: (1) a clear instance of perjury, (2) a judge who was willing to act on perjury, and (3) opposing counsel whose client had not leveled with him. Of course, if it seems humorous or the irony of the situation gets the best of you, you have to look down when the judge is unintentionally funny or making a fool of your opponent. The doctor quickly filed a Chapter 7 bankruptcy case so this wouldn’t recur any time soon.

In a second case, another judge used an absurd hypothetical to illustrate that my opponent was taking an absurd position. The second judge asked whether a party who completely controlled a piece of real estate—though his lawyer argued in court that he had no legal responsibility for management—‘dropped out of the sky from an “aereoplane”?’ (deliberately mispronounced), to manage, while making a whirling motion with his finger. Because and only because the judge intended to be humorous did I allow myself a brief smile. Otherwise it’s verboten.

And in case Bill (not his real name) scrolls through this and is reminded of his perjuring former client, he should know that I greatly respect his work and that what happened was not his fault.

As a lawyer, what’s the dumbest thing you’ve seen the opposition do or say?

My opposing party lying under oath in open court and getting busted with a transcript of a contradictory statement, and then being chewed out by the judge for wasting his time, which went on, and on and on. This is relatively uncommon.

Failing to read or listen to the judge when s/he makes it clear s/he won’t buy your argument no matter what, and simply plowing forward and persisting in the same argument instead of moving on to something else where you have hope. Many judges are inscrutable. Just as many are very easy to read.

Continuing to argue when the judge leans heavily towards your side instead of just shutting up when you’re winning.

Recounting a conversation or communication incorrectly in an important way, so that if you don’t deny the inaccurate report, your client can be hurt.

Telling me or suggesting that my client who just hired me is “crazy,” or implying it with that stupid eye roll. (OK, your client isn’t. In fact, none of your clients are.)

Telling me how long or how well they have known the judge, whom I don’t also know, creating the inference that the judge will rule in their favor. (If that type of relationship truly existed, you would probably never learn about it.)

“Good cop/bad cop” in negotiations. (Really?)

If a case is dismissed, does it count as a win for the defendant?


If a civil case is dismissed without prejudice, it is a small win for the defense, as suit may usually be refiled and dismissed without prejudice a limited number of times by the plaintiff.

If a civil case is dismissed with prejudice and not for the reason that the case settled, it is a large unequivocal win for the defense, albeit appealable. Dismissals with prejudice, if voluntary by the plaintiff, rather than by an order of the court, are nearly always because of settlements.

What does it mean when a lawyer says “permission to treat the witness as hostile”?

In the court’s discretion, a witness hostile or adverse to the interests of the party questioning on direct examination (i.e., that party’s witness), though called to testify by the questioner, may be asked leading questions as if on cross-exam. Permission to treat as hostile is sought to head off objections that would otherwise follow by the non-questioning opposing lawyer that the questions that will follow are leading.

Lawyers, what misconceptions about the law do you have to keep explaining to people?

Replying as a civil commercial litigator, both dealing with clients and others wanting to understand what I do:

1. “Smoking guns” are a rarity. It can be remarkably difficult and time consuming to prove things in court that outside court are intuitively accepted and common-sense truths. Evidence has to be pieced together, ideally through independent witnesses and contemporaneous documents. You arrived at home at 5:30 last night? Prove it. (Your testimony or that of family does not count. They might fib for you. Nor does your security camera count, because you could have tampered with the time stamp.) Not so easy. A good lawyer is trying to reach all your neighbors. A great lawyer is also trying to find your mail carrier.

2. Specialization Lawyers in cities and suburbs are almost always highly specialized. I don’t practice in ‘x’ specialty. I am a commercial litigator. Small towns have lawyers that handle four or five practice areas.

3. Honest opinions. If a lawyer tells you that you have a bad case (or don’t have a good defense), if he or she knows the practice area involved, they are doing you a favor and take no pleasure in that. I wish I could tell everyone they have a great case. When someone phones me and asks what I think, if it’s favorable, they can’t get in my office quick enough.

4. Experience. As a corollary to number 3, experience tells you what battles to pick, and what to let go.

5. Dishonesty. Your lawyer expects your opponent to lie, take a position that seems dishonest, or have access to facts that you don’t. That’s their job.

6. Antisocial behavior. Witnesses and lawyers lying to courts are rarely dealt with aggressively by the courts (or by the bar). Or at least it seems that way.

7. Facts are stubborn things. A/k/a “I’m not Harry Potter.”

8. Money. The law is not the easiest or most likely path to wealth, as there is a lot of competition and regulation. Legal talent is expensive, but so is overhead, the education and years of experience and long hours needed to get to that level of experience of charging hundreds of dollars an hour. The long hours and stress incurred in the meantime aggravate a host of physical and mental health issues, substance abuse, divorce, neglected children (who grow up to be resentful adults), and suicides. Many elderly lawyers are angry people. I bet they weren’t angry people at age 25. That said, the hardest work I have ever done was digging a ditch.

9. No one bats 1.000. Much of litigation is like card-playing, albeit “card playing” involving a lot of preparation and making educated guesses about facts, others at the table, and other things that cannot positively be known, using methods that usually work. (See number 4: knowing “what battles to pick, and what to let go.”)

If you allow someone to move in and they live with you for a few months and they are not paying rent, do you need to legally evict them in order to make them leave?

Yes, in my state.

Do lawyers really shout “objection!” all the time in real courtrooms?

No! You would sound like a spaz. No need to be too technical with this one.

You say “Objection…!” it in a slightly louder than normal speaking voice and then immediately follow it up with the grounds for the objection such as “…assumes a fact not in evidence.” Then say “Thank you” once the judge rules.

You also don’t object to every little thing. It irritates the jury, and they just want to spend the fewest days possible deciding your case and go home. They are not on the edge of their chairs waiting for your “eloquence.” You pick your battles.

Should a client be able to know everything their attorney does for them?

Yes, if the lawyer is billing for it.

Clients hate a billing entry for 8.1 hours that simply says “research.” I tell them in the billing entry everything I looked at and for what purpose.

If a client wants to see every piece of paper and every communication that leaves his or her lawyer’s office, this is in my opinion fair.

As an attorney what has made you refuse a client?

When I have to refuse clients, I almost always do so either because the prospective client needs someone with different expertise than what I have, or can’t fit the expertise wanted in their budget.

What do attorneys know about jury trials that they don’t tell their clients?

Note: I don’t minimize trial risk to my own clients.

Jury trial is an expensive and exhausting crapshoot. It is easy for incidentals to get out of control: Visual aids to explain complicated relationships or concepts are worthwhile. As can be mock trials or focus groups so lawyers can practice their questioning and the party witnesses can see how they are perceived in large cases. Voir dire is part of every jury trial. Aside from voir dire—which is far from scientificyou can’t do anything to manage or predict what happens in the jury box or in the jury room. Probably nothing; this is by design.

The reason to carry out jury trial is because your opponent has not made an offer you can live with. No lawyer worth his salt would hold this information back.

There are times when it makes sense to ask for a jury rather than a bench (judge-only) trial.

Attorneys: How accurate or based in law are rulings made on shows like Judge Judy and The People’s Court? If those rulings were made in a real court, would they stand?

I don’t watch “Judge Judy” regularly, but when I have been near a TV when she is on, I have noticed she is incredibly accurate in her analysis. She watches every detail of the facts of the cases and in the demeanors, mannerisms and respectfulness of the parties in determining credibility of their testimony. A 15-minute case doesn’t get too complicated but if the judge isn’t paying close attention he or she can screw up. I have never seen Judge Judy screw up.

And take note: If you are 22 years old testifying before a 70-something-year-old veteran judge, rolling your eyes, exhaling, smacking your lips, shifting your weight back and forth, or fidgeting, you have a crappy case (usually), or you have a good case you are screwing up (usually not).

I believe “People’s Court” was off the air before I got out of law school.

As a lawyer, have you ever told a client they would be better off settling a case and avoiding legal fees, only for the client to decide to take the case to trial anyway?

Not that I recall, in my own practice.

If this occurs, it is because the lawyer believes that the costs of continuing will likely outstrip the financial benefit and the client either (1) believes the opposite (ultimately, it’s the client’s call to make financial value judgments); OR (2) the client wishes to prove a point and doesn’t mind the cost.

If lawyer and client have never worked together before, and they disagree about going to trial (i.e., client wants to try case more than lawyer does), a lawyer reasonably requires a trial retainer (sufficient to satisfy all fees and expenses through completion of trial) and a reasonable client appreciates why.

Do attorneys use the meaningless phrase “Govern yourself accordingly” just to scare someone when there’s no real substance to their letter?

The most important thing about a demand letter, by far, is that to be effective your client must be willing to spend the time and money to back it up.

To answer your question, I’m sure lawyers do use the phrase “govern yourself accordingly” when the client just wants to send a letter and do nothing more. I did use the phrase “govern yourself accordingly” in a much earlier phase of my career, perhaps five or ten times, I am embarrassed to admit. It simply was not a good fit with my style of lawyering.

The real reason not to use the command “Govern yourself accordingly” is because it is cliché, not to mention pompous and condescending. I’m sure some people deserve “condescending,” but it is your signature that goes right below it.

What are the differences between civil and criminal cases?

The Fifth Amendment of the U.S. Constitution reads in part:

No person shall be…deprived of life, liberty, or property, without due process of law. (Emphasis supplied.)

“Due process of law” always, at minimum, means a hearing, and receipt of advance notice of the proceeding and time and place of hearing, a right to present evidence in one’s favor, and the right of cross examination of opposing witnesses.

In a criminal matter, the defendant has the additional right of a jury trial and defense counsel if the defendant is indigent. In a felony charge, the judge must sign what is known as an “information” or a grand jury of 24 citizens (depending on the state), having heard a summary of the evidence to be presented at trial, must return a “true bill of indictment” that “probable cause” exists for the state to prosecute the charge. “Probable cause” is the second lowest standard in U.S. law, and the old joke is that the grand jury would “indict a ham sandwich.” (The lowest standard, which a police officer must have to stop a citizen in public, is “reasonable suspicion.”) A “no bill” often results in the charge being dropped.

In a majority of civil cases, there is a right to jury, a large exception being domestic relations proceedings in 48 of 50 states. Certain civil matters are judge-only, such as applications for injunctions.

In short, criminal cases are always prosecuted by the state, local or federal government, can cause the defendant to be deprived of life or liberty. The prosecuting entity is known as “the government,” “the state” or “the people.” The person being prosecuted is the “defendant.”

felony means the crime charged involves a maximum sentence of greater than one year in state custody. The most petty criminal offenses are parking violations, traffic violations, and certain other things specially designated by law, such as possession of very small amounts of marijuana. In certain states red light camera offenses are civil (i.e., involve a fine only), and the same is probably true of parking offenses. Misdemeanors involve a maximum sentence of one year in custody. Petty offenses traditionally punishable by jail may by statute or ordinance be punishable by a fine at a maximum. A successful criminal prosecution results in conviction, an unsuccessful one results in acquittal. The charge alleged must be proven “beyond a reasonable doubt,” which is the highest standard in American law.

Civil cases may be brought by and between the government and citizens and may involve deprivation of property. Anyone can sue anyone for any reason, and I have found that they do. The person initiating suit, which involves filing a “complaint” or “petition” with the clerk of court, is the “plaintiff” or the “petitioner.” The person on the other end is the “defendant” or the “respondent.” The suit must have factual grounds and a basis in law, however, or it will be dismissed, or judgment will be entered for the defendant, concluding the matter forever. If the suit, or part of it, does have a factual and legal basis, a money judgment (or judgment that property must be turned over) may be entered for the plaintiff, and the plaintiff may receive the assistance of the courts to try collect the judgment. The plaintiff must prove his or her case “by a preponderance of evidence,” which I will shorthand “more likely than not” or by “clear and convincing evidence” which is more common in fraud cases and with issues surrounding probates of wills.

Certain legal remedies in criminal cases have civil features, such as a criminal defendant being ordered to pay and amount of money in civil restitution.

Civil cases may have criminal features, such as contempt of court. Criminal contempt of court may arise from a party’s, witness’,or lawyer’s misconduct in a civil or criminal proceeding and involve a jury trial and a jail sentence.

Civil contempt may also involve a short time in jail (up to 20 days in jail per offense in my state) in a civil proceeding, arising from party’s, witness’, or lawyer’s misconduct, does not involve a jury trial, but involves a judge-only hearing and a jail sentence of up to 20 days per offense.

What happens if you are awarded $100 million in a lawsuit but the defendant has no money to pay?

This should never happen.

The question provides no detail. So this answer assumes that “no money” really means “no money” and no insurance policy and that the judgment debtor is completely uncollectible, which is not uncommon. Perhaps the judgment debtor lives under a bridge.

In the future, don’t sue people dependent exclusively on pensions, social security or public assistance; members of organized crime; the homeless (or “couch surfing”); scam, fraud or bunco artists; the guy on the street who does the “three-card” trick; people who transact business solely in cash or stack cash in their closet; the guitarist on the street with an open case who plays bad songs, people now or recently in bankruptcy or have filed bankruptcy more than once; people who have recently been thrown out of their homes or had cars repoed; people who live in areas you would not feel safe traveling to; people who borrow and mooch and freeload constantly; or others who never have money. These people are all immune from suit. The law doesn’t say that. But you can’t hurt any of them financially or collect if you sue them and prevail. None of these people have attachable assets, and you can’t possibly prove that they do. Your lawyer should know this (as should you).

If the now-judgment debtor had money to pay you at the outset (or within a specified time before your claim arose) but gave it away or hid it, or in any way made it more difficult to collect, you may have a claim against your judgment debtor (and whomever was the recipient of the wealth) under the Uniform Voidable Transactions Act, a form of which is enacted in all 50 states. There is a rough equivalent in the Bankruptcy Code. The UVTA is complex so get, and be prepared to pay for, legal talent.

As a preventative, if someone has ever filed bankruptcy or been seriously insolvent—which is easy to look up (including money judgments, evictions, repossessions, foreclosures, or tax, student loan or child support delinquencies)—I would not rely on them financially, i.e., enter into a partnership with them involving money or property, or extend them more credit than I could afford to write off. Too risky. There are exceedingly rare exceptions of financially responsible people running into hard times, but 99.5% of the time, the problem is overspending and a sense of entitlement about stiffing creditors. The Bible teaches that forgiveness should be given in seven years. Maybe “forgiveness,” but not credit, or trust.

How will a judge handle complex calculations relating to a case involving disputes over a pension? How does he verify if the numbers presented to him by the attorneys are correct?

Depending on the state, the judge may appoint a special master to assess the parties’ rights, depending on his or her (the judge and his or her staff lawyer’s) acumen with finance. The special master is usually a lawyer, but may also be an expert in a specific field, or appoint his or her own expert to assist, or both. The special master then writes a report for the judge which the court may choose to adopt or reject.

Or the judge may have the parties try the case to a jury, with each party putting on the stand an expert witness in the area of accounting or finance, and the jury assessing who is owed what. If there are no facts in dispute, the court may alternatively decide the parties’ rights by summary judgment, short of calling a jury in who would be bored to death.

As a lawyer is it infuriating when clients act like they are experts on the law?

Some clients I have had are “experts on the law.” Most, however, are not.

Expert or not, it must always be remembered that it’s their money. Clients who want to tell you how much they know simply want to be hands on, or take a strongly collaborative approach and there is nothing wrong with that.

I have to draw the line with a client—usually one who just hired me—who wants me to do something that makes me appear that I don’t know what I’m doing, as in:

Client: “Why won’t you do ‘x’?”

Me: “Because if I do what you ask, it will look as if I don’t know what I am doing. Never acceptable.”

Once I explain this the communication problems are over. For those who are slower to pick it up, “frustrating” is a better word than “infuriating.” A headstrong client can become his or her own worst enemy if he or she doesn’t appreciate this or won’t follow advice.

How will a judge handle complex calculations relating to a case involving disputes over a pension? How does he verify if the numbers presented to him by the attorneys are correct?

Depending on the state, the judge may appoint a special master to assess the parties’ rights, and also depending on his or her (the judge and his or her staff lawyer’s) acumen with finance. The special master is usually a lawyer, but may also be an expert in a specific field, or appoint his or her own expert to assist, or both. The special master then writes a report for the judge which the court may choose to adopt or reject.

Or the judge may have the parties try the case to a jury, with each party putting on the stand an expert witness in the area of accounting or finance, and the jury assessing who is owed what. If there are no facts in dispute, the court may alternatively decide the parties’ rights by summary judgment, short of calling a jury in who would be bored to death.

If someone offers you money to do something illegal, is it legal to accept the money, refuse to do the illegal thing, then report them to the police?

No. Theft by deception.

Should I reject this inheritance? My ex-husband’s grandmother, my friend, left me $200,000 in her will. My current husband told me he does not want me to take the money. He says it is tainted. What would you do in this situation?

I suggest only turning this kind of money down if your husband hands you $200K of money that is not already half yours and enters into an agreement with you (drafted by your lawyer) that if you ever get divorced from him, the whole $200K is yours, and you don’t have to split it back up. Inheritance in most states is not subject to equitable distribution to the other spouse in case you do split up.

You may also receive and bank the money without telling anyone (other than possibly your accountant), and don’t speak a word of it.

If husband doesn’t have $200K of his own to give you to uphold his “moral principles,” yet still wants to prevent you from receiving $200K in free money, take this as a sign of a serious problem with your husband.

If you go to jail for over a year, what happens to your house, car, and everything you own?

The answer? Well, it depends….

The answer depends on the length of the sentence, whether you can stay out on bond while you put affairs in order, how long you are away, how much money you have and what efforts you made to preserve what money and property you have when you had the time to do so.

Worst case scenario, your landlord will evict you and throw your things on the curb.

If you own a house and go away for years, your house will be foreclosed, and your personal belongings either thrown on the curb or sold by creditors.

Your car will be repossessed and auctioned if not paid off.

If you are well enough off, you can have your things put in storage before your sentence begins, fill a bank account and set up automatic payments for things you choose to keep, and sell vehicles, real estate or other things that require ongoing financial outlay or upkeep while you are behind bars.

A sad “war story” and some nuance:

Once I handled a residential eviction almost 20 years ago. The borrower had not paid anyone to live in her house in three years, having been foreclosed. This made her a tenant at sufferance, i.e., usually very straightforward to evict if they are not paying rent. But the bank, which had taken the property back, forgot to evict her. She still had utilities hooked up, just living there free, as if her house had not been sold on the courthouse steps.

I suspected something wrong and talked to the former owner by phone, which I rarely ever did. I gave her a firm date as soon as I had one, and told her she had to get her stuff out before the Sheriff came, this included her dog. Somehow I knew she had a pet. She was very nice—probably in her sixties—and I was very nice to her. She assured me that she would be out on time. But she went to work on eviction day as usual. I can only assume a massive case of “magical thinking” or denial.

Later that afternoon, the lady from the eviction company called me (they move the possessions to the curb and change locks) while the deputy Sheriff present enters the house at an appointed time and a civil warrant, and discourages any “breach of the peace” (fight or disturbance). She informed me that the owner moved nothing out at all, including her dog, which was a large Rottweiler or other intimidating breed. Animal control had to remove him. Fortunately, he was “docile,” she explained. I wondered about him, and did for a long time. Did someone adopt the dog from the pound? Did his owner come back for him? Was he put down at the pound, solely because he didn’t try to escape or put up a fight? I never heard back from the owner. I felt badly about this for a long time.

As to possessions on the curb, passersby will steal anything good before the tenant can get back to grab their things. At the end, the tenant comes back to a mattress that has been soaked with rainfall and a peeling wood bed.

When I handled residential evictions, I always asked the departing tenant by letter to remove anything valuable or anything they cared about immediately (personal items, scrapbooks, heirlooms, etc.) to a secure location—before I even filed the eviction case—so it wouldn’t be lost, even though the sheriff would not remove their things for several weeks. The law of my state does require a letter or other demand before the eviction is filed, but didn’t require it to include this.

I had a job to do, but if you’re losing your house, your life is collapsing and I chose not to make this any worse for people than it already was. Also, the letter notice was nothing personal and it didn’t hurt my client or me to try to treat a person losing their home with dignity. At the end, they and their stuff have to be out of the house—and they are. In that spirit though, even now, when I am the passerby, I never cast a second look at a pile on the curb as it is too sad.

A witness in a case conducts an interview, and the witness cites the people in the interview. Is it considered hearsay if we ask a question about the witness hearing statements from the interviewed people?

Yes, though the two most important exceptions follow:

(1) The person making the statement out of court is (a) a party to the proceeding or (b) is available to be cross-examined in the proceeding.

(2) The statement made out of court is introduced in court for some purpose other than to prove in court that the thing stated was true. For example, the statement given by interviewee: “She tried to kill me” could not be introduced by the interviewer to prove attempted homicide. It could be used to show the interviewee’s fearfulness or paranoia, i.e., state of mind.

Is there any way to plead not guilty to a parking ticket and win?

Photographic evidence before you move the car, if possible. To (partially) prove the recency of the photo, get a copy of that day’s newspaper and put it in the photo.

If in the process of making a new law a typographical error changed the way the law could be interpreted, could that then be legally exploited?

Yes, at least for a time, if it is not crystal clear that the statute includes a typo.

If a lawyer defends a thief, and the lawyer is paid his fee from the stolen money, has the lawyer committed a crime?

That’s an excellent question. I have never heard of anyone being charged this way, and established drug dealers (I have been told) have defense lawyers on retainer as a cost of doing business.

I don’t believe receiving money in itself from a thief of cash is a “receiving stolen property” crime because the lawyer is doing work and giving full value for the money. The answer to this depends on the circumstances. On one end of the spectrum, a lawyer who accepts his/her cash retainer out of a durable bag with a picked lock that reads “Wells Fargo Bank” can expect charges if he/she is found out. A lawyer who collects his/her retainer by cashier’s check (or several of them) probably stands on more solid ground. If the charge is a violent crime, rather than a property crime, or from a person with a clear source of income, cash may not be as much of a problem.

We had a good ethics teacher in law school and she told us to have a family member of the client take out a home equity loan to pay the retainer to avoid RICO charges of the lawyer. This is a “textbook” solution that illustrates the problem, but it can take months to get a home loan and is impracticable for many defendants, especially disadvantaged ones, or those without close family.

If I were to be falsely declared dead in absentia, what would the process be for me to be recognized as alive again?

1. Move to vacate the judgment declaring you dead.

2. If you are outside the time limit to move to vacate, file a declaratory judgment lawsuit against your state seeking a declaration (finding) that you are alive, nullifying any contrary judgment, that your death certificate and all notifications of your “death” within the state government (such as driver license and voter registration) be stricken, and asking that you receive all the privileges and rights of adult natural persons in your state.

It would also help to explain why you could not come forward sooner, so it does not appear that you faked your death.

Do you think the 14 day jail term sentence, 250 hours of community service, and $30,000 fine for Felicity Huffman was enough or should she have received a harsher sentence?

The whole “college admissions scandal” is ridiculous.

It’s neither fair that a 12th grader should be accepted to an elite university based on his or her parents’ social connections, money or other means, yet nor should it be a crime.

I’m sure that this is the worst evil going on that the U.S. Attorney’s office in Massachusetts can spend many, many attorney hours prosecuting.

Cf. Martha Stewart. Your federal government at work.

Does the bar association have the right to take over legal firms that they suspect of illegal activity?

Yes. But they need a court order.

For example, the bar (an agency of the state) can file a petition in court to put the firm into receivership. They can also suspend the partners. This is extraordinary and requires strong evidence.

It’s atypical for a group of people who have invested years of their lives to the education, passing the bar exam and loans to become lawyers, to form a criminal enterprise under the guise of a law firm. This may possibly have happened, somewhere, but it would be exceedingly uncommon.

More typically, if one firm partner is breaking the law by acting illegally or unethically, and the others learn of this, the others typically throw him or her out first.

Are all judges lawyers first, or do some people start out as a judge?

Not all, but usually in the United States, judges must be lawyers.

In my state, Georgia, probate courts in rural counties may be presided over by non-lawyers. This is also true in our magistrate courts (called “justice of the peace courts” in the north).

Ironically, there is no legal requirement that a justice of the United States Supreme Court have any bar license or legal training.

How do TV court shows really work? Are they real or staged?

They are truly contested disputes where only the judge may know the outcome beforehand. They are in fact a form of binding arbitration agreed to as a precondition to being on the show.

If the winner is not paid, he or she may file a lawsuit in real court to reaffirm the arbitration award and, so long as the arbitration agreement is drafted properly (and perhaps other conditions met) be awarded judgment.

Is it considered unprofessional for a lawyer to bring a backpack to court?

Unprofessional? No. It doesn’t affect performance.

Some people, for example, bike to work, and some of them are lawyers, and some lawyers perform a lot of work at the courthouse.

Do you think a person who won’t sign a prenuptial agreement is after money?

They are either (1) marrying for money, or (2) not marrying for money but marrying their partner for who he or she is and are sincerely insulted, or (3) some combination.

If you were a court judge, what three types of cases would you most dislike ruling on?

I’m not a judge, of course, but I would dislike handling these types of cases, other than as a prosecutor:


Abuse and exploitation of children


Years of making value judgments about man’s inhumanity to man would take a toll on me. Being a judge is a thankless job.

Everything being equal between two lawyers except for how they charge fees, would you choose the one who charges hourly or a flat fee?

Do flat fee, but only if it makes sense financially.

“Flat fee” only makes sense financially for both sides when (1) the work to be performed is predictable, or (2) there is a volume of the work provided from client to lawyer, the “loss leading” matters being offset by profitable work for a net operating gain and profit. (There is no sense in coming to work in the morning and having accounts with vendors, paying employees, staying insured, and keeping the lights on, only to run at a net loss. You can run at a net loss without getting out of bed.)

Flat fees can be great for matters such as house closings or simple wills or other simple document drafting, but bad for things like contested litigation, unless the litigation is simple and the client is referring a great deal of it.

Do you know anyone who did not show up for their graduation? Why?

I did not as I graduated from law school in Detroit and had moved to Georgia, over 800 miles away, to study for and take the bar. Additionally, I had moved away from Detroit to my hometown a year before that to spend my last of three years of law school. The third-year classes taken in my visiting law school weren’t difficult and the visiting credits transferred. (Glad I made the effort as the third-year classes were not pass-fail; the grades transferred, too!)

A long car trip would have disrupted my focus. There was a three-week gap between the last final and the graduation ceremony, and probably most of the people who were not local moved away (most of them a year later than I did), choosing to spend their three weeks of R-and-R outside Detroit. It was really, in a sense, our last “carefree” time. Our school kindly mailed us congratulatory letters with our diplomas.

I didn’t feel as if I missed anything at the time. Looking back, though, it was by all accounts a great ceremony and would have been nice for my parents.

Why do we continue to use antiquated and complicated language in contracts and legal forms? It’s 2019, shouldn’t we be able to simplify these by now?

Much of what I do is make the abstract or complicated simple, or make it appear so. Mostly, legal documents and opinions may be written in plain English. In case a court might have to review a legal document, the drafter of the document tries to include certain terminology to protect his or her rights.

Without doubt, legal writing is rarely entertaining, and rarely is it intended to be. I believe some judges try, however, to write engaging opinions. The law schools I attended 25 years ago [now 30-plus years ago] were emphasizing simplicity, directness and accessibility in legal writing. Courts now encourage this, too. Reviewing appellate opinions from before 1960 (or even 1970) for the needed “nugget” of fact or law is more time-consuming than those now. Older opinions tend to be wordier.

Most U.S. Supreme Court opinions, even today, tend to be academic in tone and are generally not easy reading. In my opinion, they are the exception (and, in fairness, they decide the most complex facts and subject matter).

Go back and look at a legal decision from 100 years ago, especially one that runs 10 pages are longer. They tend to be poorly-organized, rambling, noodling essays—with plenty of twists and turns—about how the law at the time applied to something simple like some poor farmer’s cow getting loose and nearly causing a train derailment. A line of logic or thought appears, disappears, is subjected to any number of inapplicable contrasts and hypotheticals, then reappears at the conclusion of the opinion, as the train pulls into the station. The older the decision, the worse. This problem is rarely seen now.

Language in deeds and real estate documents—the most resistant to change—is difficult reading because of the frequent use of legal terms of art in real estate law of the state where the land is located. (“Terms of art” means phrases appearing in statutes or appeals courts’ judicial opinions. As I alluded to, the drafters of the document want to be treated the same way as someone else was in an old case, as courts, in interpreting agreements, rely heavily on judicial precedent.)

Contracts designed for consumers, such as loan agreements, tend to be about as simple as they can be—they are just long.

My son got a ticket for shoplifting. He made a mistake, he has realized it and we are hoping the prosecuting attorney will give him a second chance with a clean slate. How do we word that to the prosecutor?

I would add to other answers admonishing you to hire your son a lawyer. You hire the lawyer, but your son pays for it. Treat it as a loan. If he is a very young minor, forgive half of it. I don’t care if this means he’s mowing your lawn every week for $50 until he is twenty. He was not only a thief, but he was also a bad thief and a foolish one, and he will have to learn his lesson at some point.

Many states have a program called pre-trial diversion. An experienced lawyer can help your son achieve an outcome that won’t ruin his future employment or educational prospects if that program is available.

If you find cash, under what circumstances does it legally belong to you?

The cash belongs to you legally (operative word) with three preconditions:

  1. The cash is in fact abandoned, not lost or mislaid (which is very rare);
  2. The cash was not received by the person who left it behind in the commission of a crime. Depending on the circumstances, the cash goes back to the last rightful owner, or to the state; and
  3. No state or federal statute otherwise governs who does or who does not have a claim to it, and the finder of the cash follows any procedures provided by law to determine and return the property to the lawful owner. You can recoup expenses but it’s a headache. In other words, technically, you’re not allowed to simply pocket it.

What happens to Trump if he refuses to pay his $10,000 a day contempt fine especially if he loses the appeal? Does the court seize property &/or other assets or do they lock him up until he pays up? Is there something the court can do?

No former president will be locked up in the way we think of it because Secret Service protection is impossible in a correctional facility. House arrest is theoretically possible.

Attorneys: what do you think about the Mueller Report revelation that Trump stated he had never seen a lawyer take notes at a meeting until Don McGahn did? Is failing to take notes at a meeting with a client problematic?

I don’t believe for a second that no lawyer representing Donald Trump, in nearly 50 years of doing business, has ever taken notes at a meeting in front of him. Don McGann did represent Trump personally and Trump waived attorney-client privilege so McGann could speak to Mueller, which is equally significant and tends to show he had nothing to hide.

If you have a photographic memory, it’s not necessarily to take notes at a meeting.

On the other hand, I think taking notes of every word said at a meeting is excessive, and if you do that, you are probably not truly concentrating and paying attention. (At court, when my opponent or the judge is speaking, I take detailed notes. There’s not much else I can do. And court isn’t a meeting.)

For 99% of the rest of us, often you need at least a few contemporaneous notes of a meeting for retention purposes. They don’t have to be legible to anyone else, or to jog anyone else’s memory, or even make sense to anyone else, but you do need some notes.

What would be Melania’s legal situation if Donald Trump died and left her nothing in his will?

Melania has her own money, so no problem there.

But what if she didn’t? (You’ll never know. The people who know will refuse or are not authorized to discuss it.)

Trump almost certainly leaves Melania nothing in his will, literally speaking.

Melania would have a massive child support claim for their son Barron and he is only around twelve years old.

Some states also provide for a year’s support, which in my state is an unspecified amount awarded by the probate court to defray the living expenses of a spouse for the foreseeable future.

Some states (not mine) instead force a share for the surviving spouse—traditionally one-third of the estate after expenses of administration—known as “dower” or “curtesy” rights, depending on the state.

The Trumps are probably Florida residents, at least for tax reasons, so Florida trust law will likely govern. (They maintain other residences, though, such as in New York City, so residence could be there instead.) Or all their assets may be based in low-income tax states, such as Florida.

Most wealthy people name a trustee as sole legal beneficiary of their estate by will and “leave” everything to them. They also “give” a lot of assets away in old age to try to avoid estate tax. The trustee distributes the estate privately, often hiring a law firm to assist, with the will on file at the probate court revealing almost nothing. My highly speculative guess is that this trust provides handsomely for current wife and all other family members.