Open for business.

Why did a lawyer's thread not work so well last time?

It died on the vine. Members were more interested in talking about video games than legal issues. However, I think we have more lawyers on this site than we did on the old one. This might work this time around.

It does seem we are thick on this site right now.

OOOhhhhh a place to tell our new "lawyer" jokes!

I'm not a lawyer but I know it's stuff like this that gives lawyers a bad name:

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased "Cap'n Crunch with Crunchberries" because she believed "crunchberries" were real fruit.

According to the complaint, Sugawara and other consumers were misled not only by the use of the word "berries" in the name, but also by the front of the box, which features the product's namesake, Cap'n Crunch, aggressively "thrusting a spoonful of 'Crunchberries' at the prospective buyer." Plaintiff claimed that this message was reinforced by other marketing representing the product as a "combination of Crunch biscuits and colorful red, purple, teal and green berries." Yet in actuality, the product contained "no berries of any kind." Plaintiff brought claims for fraud, breach of warranty, and our notorious and ever-popular California Unfair Competition Law and Consumer Legal Remedies Act.

The court, Judge Morrison England, Jr., also pointed out that the plaintiff acknowledged in her opposition to the motion to dismiss that "[c]lose inspection [of the box] reveals that Crunchberries . . . are not really berries." Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap'n Crunch with Crunchberries in reliance on defendant's fraud.

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It blows my mind that a lawyer, Marion Hewell of the Hewell Law firm, would actually take this case. All of you other lawyers should sue him for being a complete asshole and making a mockery of your profession.

A cop friend of mine always wished there was a crime of being "feloniously stupid".

Dang! You beat me to it Oman!

Okay, okay, I promise not to be the poly thread a-hole in here. Two questions (of the compound essay variety):

1. What do those damn brackets mean [] in the quote that NMB posted? I've wiki'd them before but still came away scratching my head. Aren't they supposed to mean somthing implied?

2. What kind of lawyer do I go see to draw up a will? What fees should I expect to be billed for such services? Are the on-line services for DIY any good? I'm long overdue for getting a will drawn up. And just out of curiosity, what can happen to me if I die without a will - can the govt claim my entire estate, or would my immediate family still have claims?

3BD:

Question 1: The brackets when used in that manner are used when quoting material from another source. In the first part of the quote where the bracket covers the "c" in close, in the original, close was the start of the sentence and would have been capitalized. Where the judge used the brackets in mid sentence, he is showing the omission of the words "of the box" from the original sentence that he added in his quote for clarity.

Question 2: A simple will can usually be done by any good general practitioner. The cost will vary depending on how complicated your estate planning needs to be. If what you want is something to the effect that on your death everything is to go to the wife and if she dies first, to the kids and you don't have enough assets to worry about estate taxes you can probably get it drafted for between $200.00-300.00. If you have a high value estate and want to take advantage of the several estate tax exemptions you will probably want an estate planning attorney to take a look at it which will increase the costs depending on what needs done and how much time they will have to put in. I usually don't recommend DYI, for one thing I'm a lawyer and would hope that a good lawyer would give you peace of mind that it was done right. Also if you do it DYI and do it wrong you could have a will that won't qualify for probate or won't be self proving which could cost your estate significantly more then going to an attorney would have in the first place.

If you die without a will your estate will be probated and how your property is divided will depend on the laws of your state. More then likely, the laws would provide for your property to go to your spouse and/or your children in the manner and percentages dictated by your state. The only time your property would escheat to the state on your death would be if you die without a will and no relatives can be found.

$200.00 to $300.00 is very cheap for a will in Minneapolis. If you can find someone to do it for under $1000.00 you are lucky. It depends on your asets and needs. I would also have your estate planning attorney draft a living will (if you want to be kept on life support or not). I drafted my own wills and it took me a couple of hours. I bill out at $230.00/hour, but most estate planners charge flat fees.

What do you guys think of legalzoom.com?

Things are a little more expensive in Minneapolis than in Lamar, Colorado. We need to raise our rates down here. Good point about the flat fees. You can usually get a consultation with an attorney, who after finding out what type of estate planning you need, will give you a estimate of the costs.

Legalzoom has a place, but if you have a sizeable enough estate, I'd find an estate planner. The cost up front should translate in to larger savings upon your death. For legalzoom to work, you pretty much know what you need--which is just fine for a large number of people. I'm going to go out on a limb and guess that you haven't kept up on recent changes to death tax provisions (both state and fed).

Moreover, you may want to fund your heirs' trusts with part of your money and donate the rest to a guy in Lincoln.

Each jurisdiction is different. The area I'm practicing in is probably fairly low on the poverty scale, so I don't even charge the $200 Donnie quoted for a simple will. The truth is, I have a form on my computer and if it's just a basic will where it all goes to spouse, or equally to the children (grown) if the spouse predeceases the testator, it probably takes me a total of 30 minutes in getting the information, making the necessary changes in the form will, printing it off and having the client review and execute it.

As for legalzoom, I've never actually been to the site, but I'd advise people to stick with an actual attorney. Don't trust a site such as that or pulling a "form will", etc., off the internet. You get what you paid for, and though it may look official, it often does not comply with the rules in your state, and therefore may leave your estate unprotected.

Now, if it's anything different than my "basic will", the price is adjusted accordingly. Certainly, if you're talking about more estate planning involving trusts and such, then I'm going to charge you according to the hours I spend drafting it from scratch. But my personal practice as a family lawyer is to offer very reasonable fees for preparation of wills, where of course my name is at the bottom of the will. Then when mom or dad passes on, the children (sometimes from out of state) don't know any other attorneys, so they call me to probate the will (even though they are at liberty to choose a different attorney than the one that prepared the will). It is during the probate of the estate that the big bucks are made, at least in my case. In Ohio, you can charge up to about 5% of the total estate value. And, again, most of the necessary forms are already on my computer, so I don't have to spend that much time actually drafting the documents from scratch.

Finally, one thing I do (which is really hurting my probate practice) is to try to help many clients avoid the probate process completely. When everything is going to the spouse, it's easy to avoid probate on the smaller estates. You just have to make sure the real estate is titled in both spouses names, jointly with rights of survivorship. And make sure all bank accounts also are in both names so that the survivor can just go and withdraw the money by themselves if their spouse passes. And you do the same with vehicles...include "WROS" (with rights of survivorship) on the titles. It is more complicated (but still sometimes possible) to avoid probate when the property is going from parent to child or children. But you have to make sure the parent can trust the child if they're going to put their name on the parent's deed or bank account.

One thing I don't see mentioned here yet....ALL STATES HAVE THEIR OWN LAWS, so what I tell you may not apply to your state. Even different jurisdictions in the same state may have varying local rules, so it's important for you to speak to an attorney in your jurisdiction for an actual legal question. Anything that is mentioned in this thread IS NOT intended to be taken as legal advice. We are NOT responsible if you follow the advice of some anonymous person on a quit smokeless website and end up getting screwed. In fact, because we get paid for giving legal advice, I hope that the members here will not expect us to keep answering legal questions for them. A general question like this is fine, and the members can choose to answer or not to answer, if they want. Hopefully, this will be a thread more to talk about the law in general, particular cases in the news, particular problems associated with quitting and the legal profession, and yes, share lawyer jokes, etc. We're used to hearing such jokes and can even appreciate most of them, however keep in mind that the joke you think is SOOOO funny is probably one we've already heard a hundred times.

As for the "Crunchberry" case...there's always some idiot attorney that's willing to take on a stupid case like that. First, they hope to get a quick settlement from the Defendant, who doesn't want to spend a lot of money defending a frivolous case. The plaintiff's attorney gets a percentage of the settlement, hopefully with little work done on his/her behalf. Or if it's not settled, they hope to get some idiot jury to believe them and award the client a bunch of money (after all, it's not the jury's money they're giving away). And if all else fails, the attorney still gets their name in the papers, and that's free advertising for the next potential client. But not all attorneys are like this or handle cases like this. These are tort lawyers. When you hear on the news about "trial lawyers", they are often referring to these guys. The majority of attorneys do not fall into these categories. It's like comparing a guy doing plastic surgery in the back alley to a heart surgeon in a hospital...both may be doctors, but other than that, they are very different professions.

Interesting case:

Plaintiff sues defendant because d's dog bit her and caused serious bodily injury. We have strict liability for injuries caused by dogs. Normally, d's counsel would admit to liability and defend the case on damages. If trial was necessary, a motion in limine would be filed to keep the breed of the dog (usually a pit) out of evidence.

Here, p is also seeking an injunction barring d from ever owning a pit bull. Nevermind the fact that the offending dog was a boxer. It got me thinking, has anyone ever seen an injuction barring someone from owning personal property? Obviously, felons cannot own guns, but that seems to be a different issue. Hell, a guy with 15 drunk driving convictions and a lifetime suspended license can still own a car.

Thanks for everyone's input.

I'm still confused. Why not just leave the "c" capitalized? And if the judge omitted "of the box" from the origianl sentence, then why not just put them back in without brackets? I'm trying to get a good handle on this bracket thing. Could you please give me a few example of how and when to use them?

In the legal world and in academia when you quote from a source you put the language in your work exactly as you found it in the source document. There are times when you want to quote a source but there is an error in the source you want to correct, or perhaps you need to make a minor change in the quote to make it clear what you are talking about.

Going back to the example we were talking about stated "motion to dismiss that '[c]lose inspection [of the box] reveals that Crunchberries . . . are not really berries.'" The author quoted a sentence from the Court's opinion that said "Close inspection reveals Crunchberries . . . are not really berries." If you note the three dots, they indicate there was additional language in the original sentence, but I digress. The author of the article wanted to start the sentence in the middle of his sentence but the rules of writing are you don't use capitals in the middle of a sentence unless you are using a proper name, etc. The author changed it to a small "c" but put in brackets so those few us us who care about those things would know there was a deviation from the original.

The sentence in the original was probably in context where one knew the the "close inspection" was of the box. The author in taking the sentence as a quote removed it from its context but wanted to clarify the inspection was of the box because the sentence could imply the inspection was of the Crunchberrys. Since the rule is that if you change the sentence you are quoting you must let the reader know, the author put the words "of the box" in brackets.

To sum this up, the rule is if you quote another source and you change the quote you must let your reader know you changed it. The brackets are one way to let the reader know how you changed the quote. The rules are somewhat archaic and the only ones who really care are lawyers, english professors and editors of publications and writers of research materials (and most Lawyers only pretend to care).

So what you're really saying in a very polite and informative way is that this an English Grammar issue at heart and this dumb redneck missed something back in college, or more probablly high school!

I actaully have my old Rules for Writers book from college on a shelf back in my office. I'm going to dust it off and see if actually covers this bracket stuff when I get back in on Monday.

Thanks Donnie, I think I've got it now.

Being a dumb redneck myself, I didn't really understand this until law school. I was exposed to it a little in some of my college writing and research classes. I'm pretty sure my high school english teacher never touched it, or if she did I was too busy flirting with the girls to notice.

That is interesting. Here (in Colorado) we still go by the one bite rule. I've never seen an request for injunction quite like this. I think the Colorado civil statue regarding injunctions would be broad enough to allow the judge to enter an order for D not to have a specific dog at property A, if he felt it was necessary to cure a long standing problem. I don't think he could absolutely prevent D from owning a dog though. In the case where the breed isn't a pit, it seems barring ownership of a pit is an attempt to cure a problem that doesn't exist and our judges would probably decline to go that far.

My niece and nephew have rottwielers they raise & breed them. They had to move out of the neighbooring town because there dogs killed another smaller dog. The smaller dog was actually the instigator and "harrassed" the bigger dog, till the big dog took a bit out of him. The smaller dog was also not on a lease. They were taken to court, and are not allowed to live in the neighboring town due to their 'Viscious" dog. These dogs are outside during the day, and neighboring kids would throw rocks at them and kick the fence, and they were forced to move due to thier noisy & viscious dogs. Nothing was even done to the "instigators". It was those damn viscious dogs

First of all, no offense to you Val. We ALL misspell when we post. I just see your recent post as an opportunity to practice and learn.

If I were to quote Val's post for public or legal record would I be correct in using brackets like this?

"[t]he smaller dog was actually the instigator and "harrassed" the bigger dog, till the big dog took a bit[e] out of him. The smaller dog was also not on a leas[h]."

If so, then what do you do for the instance of "harrassed" being misspelled with a double "r"?

Above it appears the quote the word "the" is actually starting the sentence so you would keep the "t" capitalized. If you are using as in my example below, you would bracket the "t'.

Val asserted in his post that "[t]he smaller dog was actually the instigator".

I think where you put bracketed "e" after "bit" and bracketed "h" after "leas" could be correct, in order to clarify what the letters should be. When I use a quote that contains a misspelling or a grammatical error, I usually leave it as in the original work and use [sic] after the misspelling or grammatical error. This is intended show the quoted writer is responsible for the misspelling or grammatical error.

As an example:

"The smaller dog was actually the instigator and "harrassed" [sic] the bigger dog".

I don't claim to have mastered all of the nuances here. Some of my colleagues may be reading this and shuddering in horror at how badly I butcher the language. I encourage them to jump in and correct me.

As the official spelling and grammar Nazi of QSSN, I'm loving this conversation about when to use brackets. You've done a great job of explaining its use, Donnie. Now I'm just waiting for someone to ask what "sic" means, or else attempt to correct you by spelling it "sick".

Maybe we should rename this the "English Grammar and Spelling Thread" instead of the "Lawyer's Thread"!

Boy, glad I could be an object lesson. That's what I get for trying to get a post out with two kids badgering me.

Ahh don't worry about it Val, I blew it anyway. I'm giving up on trying to master brackets... for now.

U.S. Supreme Court refuses to rule on the military's don't ask, don't tell policy.

When Lawrence v. Texas, 539 U.S. 538 (2003) was decided, I was at a bar association meeting and heard many legal arguments that the DADT policy would be overturned. However, an old con-law prof. waited until all of the arguments were made and said, "there's the law; then there's miliatry law. Do not confuse the two." I've always found that to be a pretty insightful comment.

And he's right. I've always believed that anyone who would rule or judge upon our military should have at least served there first. You must imagine all the misconceptions and preconceived ideas about our military I had to battle when re-entering college after Desert Storm.

The U.S. Supreme court has recognized for years that many of the rights and privileges free citizens have do not necessarily apply to the military. There have been several attempts to change the military and I think quite a bit of change has been slowly incorporated in many facets of military life. I'm pretty sure I would hardly recognize the Army with all of the changes that have occurred since I finished my four year obligation in 1985.

So far the civilian appeals courts have generally taken a fairly hands off approach. I'm not sure that will continue if we get an overly liberal bench. I could see some liberal judge who has never spent time in the military ordering massive changes in the name of civil rights.

This Saturday my firm is having a mock trial to gage potential outcomes & reactions on a pretty large case (8-figure potential). This is the first time I've ever been involved in one of these. I'm playing the part of the lead plaintiff's attorney; certainly not a role I'm accustom to. I pulled David Ball "On Damages" to help with my opening & closing. I've decided that the crap peddled to plaintiff lawyers is by and large just that: crap. If anyone wants to vomit in their mouth for the next few days, check this book from the library. Don't waste your money.

My main criticism is that it advises attorneys to play primarily on emotions both subtile & forcefully. As a side note, I've had attorneys try this crap in my trials. I simply refer them to the instruction on what the jury may consider as evidence in the case and then, sytematically refute the emotional arguments with the evidence prevented. It seems to have worked so far.

I'll let you know how the mock trial ends up (the real issue is liability for a car crash).

What do you do for a judge in a mock trial? Does someone play that role too?

Cool. I've only had the opportunity to try one jury trial. It was a construction case so there wasn't much emotional about it. I've never done a mock jury trial, other than in law school. I am interested to hear how it goes.

Sort of. The thing about jury trials is that most of what evidence will be allowed has already been decided. By the time trial hits, there is very little for the judge to do. The person running the show will act as somewhat of a mock judge to keep the show moving. Well, back to the dark side.

That does sound cool. Forgive my naivety but does that mean you have to make an assumption about what evidence will be allowed? If you practice the mock trial under one set of assumptions and it turns out that the real judge assumes differently, does that throw the plan of attack out of the water or does it not really matter?

First, we've got a pretty good handle on what the evidence will be (there is only one good challenge to one expert). Second, all of the motions regarding the admissibility of evidence have been completed and the judge has given his preliminary impressions. I'm fairly experienced with opposing counsel so I know how he tries cases. He is very good, so I've got to be on my game. The facts aren't going to change from now til trial.

The most difficult thing about trying a jury trial is that we've lived with theses cases for years. Jurors come in knowing nothing. It is very hard to condense years worth of work into a few weeks of trial. But, at this point, everything is done and we pretty much know what the jury will hear.

I have always loved trying jury trials. I've tried quite a few criminal and dependency and neglect jury trials as both a prosecutor and as defendant's counsel. I've only had two civil jury trials in my career. Most of the local bar members(including myself) prefer trials to the Court in civil litigation to keep the costs down. We generally don't have a lot of cases with that kind of potential value down here. I have never had an opportunity to do a mock trial in the manner you are doing it. Please let us know how it goes and if you would recommend it.

I love that the lawyer's thread is back. I love reading this stuff and glad I have something to keep me out of the political thread.

A Couple of Questions for the Lawyers:

1. Support or oppose mandatory minimum sentences?

2. Support or oppose capital punishment?

3. Support or oppose caps on pain and suffering?

I'm interested in the non-lawyers responses too. You guys can probably already guess my answers.

Non-lawyer response

1 & 2 Strongly Support. I say let the punishment fit the crime. Too many loopholes for the guilty. "Cruel and unusual" needs to be completely redefined. Town square hangings and la guillotine needs to return. Rope is cheap, so is a reusable blade. And it is pretty scary. More of a deterrant than free rent and food. Hard labor is also a good thing when it fits the crime. Less taxes and more prisoner generated revenue.
3 Undecided - I think this can be abused just like any lawsuit. Both sides of the coin can abuse the system.

A lawyer's opinion:

1 - oppose. There is no reason sentences should be arbitrary and capricious. If the goal is to let the punishment fit the crime, the let the judge do that. I'm not in favor of letting people that get elected through campaign promises dictate sentences when they don't know the facts of each case. However, I believe there are certain crimes which should carry mandatory minimums (rape, murder, etc.). Maybe you should elaborate on what crimes you are referring.

2 - oppose. I'm pro-life. I agree that the death penalty is constitutional; I'm simply opposed to it on moral grounds.

3 - oppose. See my rant on the politics page if you want more reading.

Although I am pro-life, I also believe in "due process". The right to life is forfeit if, for instance, someone rapes and murders a child.
But that is my opinion, I am not God, nor am I on the legistlative branch of the government.

Another lawyer's opinion:

1. Oppose. I believe that Congress is usurping the Constitutional powers of the courts by imposing mandatory minimum sentences and three strike laws.

2. Oppose on moral grounds. Also because no system is fool-proof. You can reverse a life-sentence.

3. Oppose. There are better ways to prevent runaway juries like giving the Judge the power to decide whether punitive damages are available.

I certainly respect your opinion. I've always thought that since I'm not God that I cannot judge another to death. We recently had 5 people cleared of a disgusting rape/murder in Nebraska. The convicted spent 20 years in prison. 4 took deals to avoid the death penalty. 1 tried the case and was given life (thankfully). Recent DNA evidence cleared them. Imagine if they had been put to death; there's no undoing that one.

Engineer's responce:

1. Oppose - for the same reasons that both LD and PD gave. I also agree with PD that perhaps certain crimes should have mms.
2. Both - There are some instances where there is no doubt, e.g. the nutjob who just killed the security guard at the Holocaust Musem. For the rest, let them receive life without parole and hard labor.
3. Support - Something has to be done to curtail the Whaaaaambulance chasers.

Another lawyers opinion:

1. Oppose - mandatory minimum sentences are generally political and oftentimes require a unjust results. Granted there are occasions when a judge screws up and there are judges who shirk away from giving appropriate sentences in some cases but for the most part, judges do their jobs and give out just sentences. In making a determination of whether the offense should fit the crime, we should not only consider the crime committed but also any mitigating circumstances. For example, the sexting charges. There is no justice in sentencing one who texted a nude photo of his girlfriend under the child pornography statutes the same way we would sentence a 50 year old who intentionally distributes child porn. There are just too many circumstances for the legislatures to consider when drafting mandatory sentencing statutes in most cases. For every case in the news where a judge gave a light sentence to a criminal who deserved a stronger sentence, we can find a case where, because of mandatory sentencing' a person's sentence was too harsh given the circumstances of the case.

2. Oppose - I don't oppose the death sentence on moral grounds or because I believe it to be unconstitutional. I oppose it because it is used with so little frequency it fails to be a deterrent. I also oppose it because the people who receive it are disproportional lower income and believe something to be wrong with a punishment based on social status rather then the crime committed. Finally I oppose it because of the expense (money) to society. By the time the appeals process is exhausted in a capital case, it costs significantly more to put a criminal defendant to death then to keep them in a maximum security prison for the remainder of his or her life.

3. Oppose strict caps but believe there needs to be reform in the method of calculating pain and suffering. I would take it away from the emotional charge of the jury and give it to the judges to determine based on the evidence presented. Instead on being used for compensation for the injured, pain and suffering has been used to punish the defendant in lieu of punitive damages (which are generally also available.) Perhaps we could get away from obscenely large awards in one case and significantly low awards in another similarly situated case.

This is an incredible response. You can see why Donnie is a very effective lawyer. 90% of litigators' persausion to the court is based on your memorandum of law.

Lawyers' poll #2

1. Do you support or oppose legalizing marijuana?

2. Do you support or oppose legalizing prostituions a la Nevada-style (see e.g. "Cathouse" on HBO);

3. Are you opposed to same-sex marriage or do you support same-sex unions?

vikesrule lawyer's poll #1:

1. Do you really think you are smarter than everyone else or is it just a facade?

2. Do you think years of secondary schooling equates to intelligence?

3. How about those incarcerated dumb/smart criminals who study hard and pass the state bar? What say you? Are they on the same level as you now?

My appologies to all in advance...



McDonald's drive thru: "Welcome to McDonalds! What can I get for you today?"

Plaintif: "Coffee."


That ain't right, Lord I apologize for that right there and be with the starving pygmies down there in New Guinea there, Amen.