I was touring the Internet and saw a couple of interesting Ethics articles that I thought ought to be brought to the attention of all criminal defense lawyers. I know you all find them boring. Well these aren't and either way it is good for you...
The first was written by my good friend Tom Mighell. Tom for those of you who do not read "tech" blogs is one of the grandfathers of the "Tech for Lawyers" revolution. Tom, Dennis Kennedy, Marty Swimmer, and Denise Howell among others are really the inspiration for my blogging.
Anyway, now that I have dropped a few names, Tom's article is a primer for how to keep your e-mail and computer files private and protected. It is simple to read and simply following a few of the suggestions will keep you out of a grievance or malpractice action. For those of you who want to find interesting sites and a few fun ways to waste a little time while on line (as if we needed more ways) Tom is the Author of the very popular "Inter-alia" blog and you can sign up for a weekly digest of the best stuff he has found on the Internet by going to the link I gave you above and finding the sign up for the Mighell Marker.
Now the second article is a news piece about a lawyer who evidentially was unaware she was moving a "hit list" from the jail to a hit man on behalf of her long time client. Often we are asked to make third party calls and get mail to other people without going through prison system security. I will usually refuse the former and always refuse the latter. I will allow my office phone to be used to contact a mother of a kid under 21 or a call to a therapist. I will let a guy call his young kids (often they cannot afford the collect bill) but I always monitor the call. Further I usually contact the facility there after to make arraignments for non-collect calls to be available. If the facility is being stupid about it, I go to the judge and ask him to order the calls be allowed. Usually the jails and prison make arraignments (after all most of them are parents too.)
Vigilance is the key. Clients do not generally care about your license to practice. They have an agenda and see you as part of it. You are not part of their agenda, you are a "legal" representative. You do not represent the crime or the plan or scheme, you represent the client in his pursuit of his rights. There is a large difference but often we get caught up in the action and forget what and who we are. You must protect yourself and your practice. Never pass mail through your privilege as an attorney. Ever.
Do not carry messages. Even the most benign could be encrypted. It is simple, although many of the rules seem heavy-handed and inconvenient, they are there for usually good reason's other than sloth or avarice. Find out the reason for the rule and then seek a solution to help your client. Self-help holds way to many pitfalls.
Hattips: Inter-alia and ABA Journal Law News Now
Sunday, July 11, 2010
Saturday, November 28, 2009
A Primer on Mortgage Fraud Prosecutions and Why Every Homeowner and Mortagage Salesman Ought to See a Criminal Attorney Right Away.
I wrote this about a year and a half ago. I was right on the money. I published it on That Lawyer Dude blog, but I am putting it up again with a few "Fixes" that do not change the prediction but do help make the post a little clearer.
Again IF You or someone you know, think you may have "made a mistake on a mortgage loan app", or if you signed a few documents without writing on them, allowing the mortgage broker to "fill in the blanks at another point in time" or if you are a mortgage broker or loan officer or someone else in the business who is afraid that there were shenanigans going on at their office, NOW is the time to hire an Attorney. DO not wait for the FBI to come knocking on your door.
Okay I am now going to explain the Mortgage Fraud Prosecution time- line for you by repeating our old article. Leave a comment if you have any questions:
"Sub-Prime Mess Leads to Mortgage Fraud Prosecutions: The Millionaires Play While the Homeowners Will Pay With Their Freedom
On Friday (4/18/08)the FBI announced that the sub prime mortgage mess is going to lead to an up-tick in mortgage fraud prosecutions.
Now what that translates into is that everyone who did something to help homeowners buy houses that they could not afford will be prosecuted, while the banks that profited all those years will pretend that they were unaware of the rampant fraud in the marketing of mortgages so that they can get as much of their money back while little players go to Federal prison.
I know that many of you are confused by the sub-prime mortgage mess. In a nutshell, the banks lent money to homeowners and buyers without requiring that they have any equity in the house. Now the mortgagor (the owner) can no longer afford the mortgage and has no equity (a reason to keep the house as an investment) in the home so he walks away from the debt leaving the bank holding the mortgage and the house.
Now why can't the bank just sell the house? Because it is worth less than the amount owed on it and so the bank will take a loss. Do that over and over again, and voile you got a mess of banks going belly up. The most recent failure was at Bear Sterns (hereinafter BS, for so many reasons).
Well, you may say, "sounds like they made bad investments. They should have to pay for using bad judgment." Yeah Right. They completely screwed up and yet you should see how they were rewarded before they went under. Lets look at some of the principal players at BS:
Alan Schwartz: is the CEO, President and basically the chief honcho.
Sam Molinaro Jr.: is the COO and the CFO and is basically the number 2 guy
Mike Minikes: is the treasurer of B/S
Mr. Michael S. Solender: is the attorney.
A fast review of their recent (last 6 months) trading of their options (which they received gratis as part of their "salaries") goes like this:
Schwartz made Six Million Dollars on the sale of his options of stock on Dec. 21 2007.
Molinaro made 2.5 Million Dollars on his sale the same day (he sold less).
Minikes made 2.3 Million Dollars on his sale.
Solender made 185 Thousand Dollars on his sale of options.
This is all in addition to multi Million Dollars salary and benefit packages they get!!
So the government is going to get these guys to give back the money right?? WRONG. They are going to get to keep the spoils of being horrible business people who cost their little shareholders millions.
So who is the government looking for? The favorite scapegoat... the little guys.
You see, BS is pretending that they never heard of inflating an income or an appraisal in their lives. ("I'm shocked, shocked to find that gambling is going on in (Casablanca)!)
For years BS (and others, I am not just picking on Bear Sterns they are just one example) made a fortune on the lies of brokers and homeowners. They knew of them, and allowed them to continue to lie about income and equity, until the bottom of the market hit like the end of a Ponzi scheme. Only difference is that the company was left holding the bag along with a lot of people who are or are going to be homeless.
You may be asking how this means homeowners are going to jail. Here is the answer:
Many (if not most) homeowners over the last 10-15 years have been playing a game that allows them to get the equity out of their homes and use the homes like an asset. By refinancing they received 100% equity and sometimes more. They used phony appraisals (which would "convince" the banks that the home was worth more than it was) and over estimated their incomes (to "convince" the bank they could pay the monthly payment.)In some cases they allowed mortgage brokers to write in the information for them on documents they signed in blank.
In other words, they lied on application documents. These banks have federal funding and insurance... Hence you have a federal case. Thanks to the advent of the US Sentencing Guidelines, prison is always an option. Now the government doesn't really want to put all that many people in prison. Just enough to scare the bejesus out of everyone so that they begin to tell on their partners in this venture, the appraisers and the mortgage brokers.
Now let's face it. When a homeowner went to the broker, he wanted more money than he had equity. The broker who could get the loan for him was going to get the business and make a commission. Now the broker didn't want the buyer to go bankrupt. He usually thought the homeowner could afford the mortgage. Why did he think that? Because the homeowner was lying about his income. Usually not a big lie, often under Fifty (50) Thousand Dollars, just to make sure that they could qualify for the loan. After all a person can over-estimate a little, no?
So the Broker needs to find an appraiser who will fudge the numbers a little. It isn't hard. The appraiser wasn't making much for his work. So the Mortgage broker found a few who needed extra money and offered them a piece of any deal they helped get for the broker. Often the homeowner "tipped" the guy as well. After all a person can over estimate a little, no?
Then the salesman goes to the hungry loan officers or underwriters whom he the broker pays...(this is the proverbial fox watching the hen house) with a bunch of these loans and these "safety valuves" sees a big commission check coming and they take on a bunch of seemingly good loans and a few bad ones cause after all a person can be off a little, no? Besides the company is just going to bundle them up (the loans some good and some bad) and sell them to a hedge fund owner so he will bear the loss and he is insured by some outfit known as AIG... (Now you ought to be able to see where this is leading...)
Now to "get" the people who made money here, the government needs to make the case against them from the bottom up. First they will go to anybody who over-estimated their income and look to turn him against the broker and the appraiser.
It will work like this:
They will send an investigator to the door of some home in say Queens, Nassau or Suffolk County. He/she will ask if you are the homeowner and they will then question you without giving you Miranda rights. This is legal. You only get Miranda card readings when you are under arrest and questioned.
They won't tell you you need a lawyer, they will only tell you how much trouble you're in. They may even threaten to arrest you if you do not speak to them. DON'T DO IT. They are going to arrest you anyway.
Then they will offer to let you off easy if you will implicate the broker. After all you're not smart enough to over-estimate your income. The Broker told you what to write down RIGHT??
The Broker got the Appraiser right? The appraiser told you he could make the appraisal look good for you for a little "tip" right?
Now "tell them what they get for trying to own a home on Long Island Johnny." "Well Bob they get to hire a Criminal Defense Lawyer who is going to cost them 25 thousand dollars or more, AND they get to implicate the people who helped them afford a home in Queens, Nassau or Suffolk County, maybe even a relative or friend who was a mortgage broker or appraiser, and face a criminal fraud conviction and the possibility of Three year vacation in a Federal Prison!!!"
"Hold it! Hold it! Hold it" you say. "I am paying my mortgage. I have nothing to worry about."
WRONG. When the FBI gets the names of the brokers from the lenders, they will look to see what loans were generated by those guys. Did they use the same appraiser each time (usually they do)? Then they will look at those applications. Check the information in the apps against what they have on file for you (you know, your IRS Form where you tried to limit your income) IF (When) they find discrepancies, they will come for you too, to get the people who sold loans.
In fact, if you are still in your beautiful Long Island residence and haven't defaulted, you are easier to get. You don't already have a lawyer (so now there is none of that ugly "statement suppression" issue) and they know where to look for you (your not homeless yet.)
So you testify against your friend or loved one and then one of them turns on the others and in the end of the game you all have to pay "restitution" to the "defrauded" banks and the guys who knew all of this, and who profited from it the most, keep their millions. You on the other hand have a criminal record, have to hire a lawyer and lost your house and maybe met some new friend in prison named Bubba.
Don't let this happen to you. If you are a Mortgage Broker, Appraiser, or Homeowner/mortgagor, get to a Criminal Defense Lawyer now. Even if you are sure you will not be a target of an investigation, it is smart to get a lawyer and let him speak to whomever he thinks will help you to win the day. Let whoever comes knocking on your door from the federal government know that you have a lawyer on retainer. CALL YOUR LAWYER as soon as the investigators come to the door. Do not say anything to them without your lawyer being with you.
If you follow these simple steps you will be able to sleep through much of this crisis, and you will continue to enjoy the simple life of a homeowner on Long Island.
Although I focused on Long Island and specifically the counties of Queens NY, Nassau NY, and Suffolk NY, the scenario and advice is good throughout the country.
You have been warned, heed the warning."
A little addendum. This is the way many Mortgage Fraud cases on Long Island will come down. IF you knowingly were involved in "Flipping a home", acting as a "straw man", providing proof of employment for a friend, misleading the lender about who owns or occupies a loan, inflating rents, or any other fraudulent activity on any home sale, then it goes without saying you NEED A LAWYER NOW!!!! That goes for Real Estate Attorneys too!!!! Uncle Sam is coming and he is coming hard. Will you be ready if he comes looking for you??
You may contact Fraud attorneys at our office by calling us at 516-741-3400 or writing to me directly at catlaw1@yahoo.com
Again IF You or someone you know, think you may have "made a mistake on a mortgage loan app", or if you signed a few documents without writing on them, allowing the mortgage broker to "fill in the blanks at another point in time" or if you are a mortgage broker or loan officer or someone else in the business who is afraid that there were shenanigans going on at their office, NOW is the time to hire an Attorney. DO not wait for the FBI to come knocking on your door.
Okay I am now going to explain the Mortgage Fraud Prosecution time- line for you by repeating our old article. Leave a comment if you have any questions:
"Sub-Prime Mess Leads to Mortgage Fraud Prosecutions: The Millionaires Play While the Homeowners Will Pay With Their Freedom
On Friday (4/18/08)the FBI announced that the sub prime mortgage mess is going to lead to an up-tick in mortgage fraud prosecutions.
Now what that translates into is that everyone who did something to help homeowners buy houses that they could not afford will be prosecuted, while the banks that profited all those years will pretend that they were unaware of the rampant fraud in the marketing of mortgages so that they can get as much of their money back while little players go to Federal prison.
I know that many of you are confused by the sub-prime mortgage mess. In a nutshell, the banks lent money to homeowners and buyers without requiring that they have any equity in the house. Now the mortgagor (the owner) can no longer afford the mortgage and has no equity (a reason to keep the house as an investment) in the home so he walks away from the debt leaving the bank holding the mortgage and the house.
Now why can't the bank just sell the house? Because it is worth less than the amount owed on it and so the bank will take a loss. Do that over and over again, and voile you got a mess of banks going belly up. The most recent failure was at Bear Sterns (hereinafter BS, for so many reasons).
Well, you may say, "sounds like they made bad investments. They should have to pay for using bad judgment." Yeah Right. They completely screwed up and yet you should see how they were rewarded before they went under. Lets look at some of the principal players at BS:
Alan Schwartz: is the CEO, President and basically the chief honcho.
Sam Molinaro Jr.: is the COO and the CFO and is basically the number 2 guy
Mike Minikes: is the treasurer of B/S
Mr. Michael S. Solender: is the attorney.
A fast review of their recent (last 6 months) trading of their options (which they received gratis as part of their "salaries") goes like this:
Schwartz made Six Million Dollars on the sale of his options of stock on Dec. 21 2007.
Molinaro made 2.5 Million Dollars on his sale the same day (he sold less).
Minikes made 2.3 Million Dollars on his sale.
Solender made 185 Thousand Dollars on his sale of options.
This is all in addition to multi Million Dollars salary and benefit packages they get!!
So the government is going to get these guys to give back the money right?? WRONG. They are going to get to keep the spoils of being horrible business people who cost their little shareholders millions.
So who is the government looking for? The favorite scapegoat... the little guys.
You see, BS is pretending that they never heard of inflating an income or an appraisal in their lives. ("I'm shocked, shocked to find that gambling is going on in (Casablanca)!)
For years BS (and others, I am not just picking on Bear Sterns they are just one example) made a fortune on the lies of brokers and homeowners. They knew of them, and allowed them to continue to lie about income and equity, until the bottom of the market hit like the end of a Ponzi scheme. Only difference is that the company was left holding the bag along with a lot of people who are or are going to be homeless.
You may be asking how this means homeowners are going to jail. Here is the answer:
Many (if not most) homeowners over the last 10-15 years have been playing a game that allows them to get the equity out of their homes and use the homes like an asset. By refinancing they received 100% equity and sometimes more. They used phony appraisals (which would "convince" the banks that the home was worth more than it was) and over estimated their incomes (to "convince" the bank they could pay the monthly payment.)In some cases they allowed mortgage brokers to write in the information for them on documents they signed in blank.
In other words, they lied on application documents. These banks have federal funding and insurance... Hence you have a federal case. Thanks to the advent of the US Sentencing Guidelines, prison is always an option. Now the government doesn't really want to put all that many people in prison. Just enough to scare the bejesus out of everyone so that they begin to tell on their partners in this venture, the appraisers and the mortgage brokers.
Now let's face it. When a homeowner went to the broker, he wanted more money than he had equity. The broker who could get the loan for him was going to get the business and make a commission. Now the broker didn't want the buyer to go bankrupt. He usually thought the homeowner could afford the mortgage. Why did he think that? Because the homeowner was lying about his income. Usually not a big lie, often under Fifty (50) Thousand Dollars, just to make sure that they could qualify for the loan. After all a person can over-estimate a little, no?
So the Broker needs to find an appraiser who will fudge the numbers a little. It isn't hard. The appraiser wasn't making much for his work. So the Mortgage broker found a few who needed extra money and offered them a piece of any deal they helped get for the broker. Often the homeowner "tipped" the guy as well. After all a person can over estimate a little, no?
Then the salesman goes to the hungry loan officers or underwriters whom he the broker pays...(this is the proverbial fox watching the hen house) with a bunch of these loans and these "safety valuves" sees a big commission check coming and they take on a bunch of seemingly good loans and a few bad ones cause after all a person can be off a little, no? Besides the company is just going to bundle them up (the loans some good and some bad) and sell them to a hedge fund owner so he will bear the loss and he is insured by some outfit known as AIG... (Now you ought to be able to see where this is leading...)
Now to "get" the people who made money here, the government needs to make the case against them from the bottom up. First they will go to anybody who over-estimated their income and look to turn him against the broker and the appraiser.
It will work like this:
They will send an investigator to the door of some home in say Queens, Nassau or Suffolk County. He/she will ask if you are the homeowner and they will then question you without giving you Miranda rights. This is legal. You only get Miranda card readings when you are under arrest and questioned.
They won't tell you you need a lawyer, they will only tell you how much trouble you're in. They may even threaten to arrest you if you do not speak to them. DON'T DO IT. They are going to arrest you anyway.
Then they will offer to let you off easy if you will implicate the broker. After all you're not smart enough to over-estimate your income. The Broker told you what to write down RIGHT??
The Broker got the Appraiser right? The appraiser told you he could make the appraisal look good for you for a little "tip" right?
Now "tell them what they get for trying to own a home on Long Island Johnny." "Well Bob they get to hire a Criminal Defense Lawyer who is going to cost them 25 thousand dollars or more, AND they get to implicate the people who helped them afford a home in Queens, Nassau or Suffolk County, maybe even a relative or friend who was a mortgage broker or appraiser, and face a criminal fraud conviction and the possibility of Three year vacation in a Federal Prison!!!"
"Hold it! Hold it! Hold it" you say. "I am paying my mortgage. I have nothing to worry about."
WRONG. When the FBI gets the names of the brokers from the lenders, they will look to see what loans were generated by those guys. Did they use the same appraiser each time (usually they do)? Then they will look at those applications. Check the information in the apps against what they have on file for you (you know, your IRS Form where you tried to limit your income) IF (When) they find discrepancies, they will come for you too, to get the people who sold loans.
In fact, if you are still in your beautiful Long Island residence and haven't defaulted, you are easier to get. You don't already have a lawyer (so now there is none of that ugly "statement suppression" issue) and they know where to look for you (your not homeless yet.)
So you testify against your friend or loved one and then one of them turns on the others and in the end of the game you all have to pay "restitution" to the "defrauded" banks and the guys who knew all of this, and who profited from it the most, keep their millions. You on the other hand have a criminal record, have to hire a lawyer and lost your house and maybe met some new friend in prison named Bubba.
Don't let this happen to you. If you are a Mortgage Broker, Appraiser, or Homeowner/mortgagor, get to a Criminal Defense Lawyer now. Even if you are sure you will not be a target of an investigation, it is smart to get a lawyer and let him speak to whomever he thinks will help you to win the day. Let whoever comes knocking on your door from the federal government know that you have a lawyer on retainer. CALL YOUR LAWYER as soon as the investigators come to the door. Do not say anything to them without your lawyer being with you.
If you follow these simple steps you will be able to sleep through much of this crisis, and you will continue to enjoy the simple life of a homeowner on Long Island.
Although I focused on Long Island and specifically the counties of Queens NY, Nassau NY, and Suffolk NY, the scenario and advice is good throughout the country.
You have been warned, heed the warning."
A little addendum. This is the way many Mortgage Fraud cases on Long Island will come down. IF you knowingly were involved in "Flipping a home", acting as a "straw man", providing proof of employment for a friend, misleading the lender about who owns or occupies a loan, inflating rents, or any other fraudulent activity on any home sale, then it goes without saying you NEED A LAWYER NOW!!!! That goes for Real Estate Attorneys too!!!! Uncle Sam is coming and he is coming hard. Will you be ready if he comes looking for you??
You may contact Fraud attorneys at our office by calling us at 516-741-3400 or writing to me directly at catlaw1@yahoo.com
Monday, January 19, 2009
White Collar Crime and the Solo/Small Firm Practioner: Why Going "Small Law" Makes Sense
If history is to be believed, Dreier and Madoff is the tip of the iceberg in the prosecution of White Collar crimes. If the Junk bond debacle is any indicator of what is to come, a lot of people are about to be investigated and indicted. Many of these folks will be in New York, but there will be cases in many smaller legal venues as well. Many of those who are arrested will make the move to hire big law firms and big legal names. This time however, that may be the biggest mistake they will have made.
Wall Streeters and other white collar clients, who seek out big firms are usually thinking that :
1. Only big law firms will have the resources to handle the kind of paper and evidence that accompany the big white collar crime cases.
2. They want lawyers who are familiar with the "way things work" on the street.
3. They also want lawyers who have worked on the "other side" of the law. In other words, they want lawyers who have been Former Assistant US Attorneys.
4. Finally some believe You get what you pay for. The more you pay, the better the lawyer.
While each of these myths have some validity, the truth is that in today's white collar cases, all those instincts may wind up guaranteeing a conviction.
First of all, there is the myth of that the solo small practice cannot handle the paper. While that may have been an issue 20 years ago, modern technology has more than helped the solo and small firm criminal defense attorney keep up with the paper in these cases. Moreover, thanks to the invention of intranets, many small firm practices make use of the same off shore attorneys used by the big firms for cataloging and sorting the myriad of reports, e-mails, documents, and other evidentiary items that make up the thousands of pages and tens of boxes of evidence in most modern White Collar cases.
Second, I think that knowing how things "work" on the street is a hindrance to helping to win in court. Main street and the people who live around Main street are going to be your jury. These people have a fundamental issue with the way things work on "the street." In fact most think that "the street" is geared to hurt them and it is the Wall Street mentality that "greed is good" that put the defendants in the soup to begin with. This is further complicated by their own anger that Wall street and Wall street lawyers took down the little guy with everyone else.
A lawyer who regularly works on regular criminal cases, can bring an air of truth and appreciation for what a local feels and may be in better position to explain that a Wall Street executive's behavior was at the worst not meant to harm a little guy (like the juror) but to protect all the little guys that were in the market. It may be nothing more than an idea that just failed. Further it may be hard for a Big firm lawyer whose starting salary is three times the national average salary (not the national starting salary) to convey to people who will never earn that much money in a decade, how the white collar criminal is no different than they are, and how they and he are just, after all, neighbors.
Thirdly, there are lawyers who worked for the Government who did not go the Wall Street route. Now I am not enamoured of former prosecutors. I think they often fail to see the defects in the prosecution's case because they never saw them as prosecutors. Many are so sure of the governments superiority, that they are afraid to take them on in court. Some fear it will hurt their relationship with their former mates in the office whom they rely on to get good plea bargains.
On the other hand, there are some that are very good once they make the switch. Either way, whether you need a former prosecutor or not, they work on "Main Street" too.
Finally there is this idea that you get what you pay for. I guess some of that is true. The question I have with most Biglaw firms is, Do I need what I am paying for? Do I need a lawyer at Four Hundred Dollars an hour reviewing files and notes? Do I need him to summarize documents? Do I even want to pay someone on the hour to do this? Is an hourly rate the best way of paying a legal fee for me and my family?
These are questions that most Main Streeters ask before they start thinking about fees. It doesn't help you much if you win the case but lose your home in the process.
Finally a big advantage to a Main street lawyer, is the opportunity to be his biggest client. You are the priority case, there is always someone working on your file and only the most senior lawyers are assigned to the file. There is a benefit to being able to speak to your lawyer quickly and to know, he knows, everything there is to know about your case.
In all, the White Collar Criminal Defense Client has a lot to gain, and nothing to lose by coming with his case to a local Main Street lawyer. Now if they only read this before they lose all their money to Biglaw.
Wall Streeters and other white collar clients, who seek out big firms are usually thinking that :
1. Only big law firms will have the resources to handle the kind of paper and evidence that accompany the big white collar crime cases.
2. They want lawyers who are familiar with the "way things work" on the street.
3. They also want lawyers who have worked on the "other side" of the law. In other words, they want lawyers who have been Former Assistant US Attorneys.
4. Finally some believe You get what you pay for. The more you pay, the better the lawyer.
While each of these myths have some validity, the truth is that in today's white collar cases, all those instincts may wind up guaranteeing a conviction.
First of all, there is the myth of that the solo small practice cannot handle the paper. While that may have been an issue 20 years ago, modern technology has more than helped the solo and small firm criminal defense attorney keep up with the paper in these cases. Moreover, thanks to the invention of intranets, many small firm practices make use of the same off shore attorneys used by the big firms for cataloging and sorting the myriad of reports, e-mails, documents, and other evidentiary items that make up the thousands of pages and tens of boxes of evidence in most modern White Collar cases.
Second, I think that knowing how things "work" on the street is a hindrance to helping to win in court. Main street and the people who live around Main street are going to be your jury. These people have a fundamental issue with the way things work on "the street." In fact most think that "the street" is geared to hurt them and it is the Wall Street mentality that "greed is good" that put the defendants in the soup to begin with. This is further complicated by their own anger that Wall street and Wall street lawyers took down the little guy with everyone else.
A lawyer who regularly works on regular criminal cases, can bring an air of truth and appreciation for what a local feels and may be in better position to explain that a Wall Street executive's behavior was at the worst not meant to harm a little guy (like the juror) but to protect all the little guys that were in the market. It may be nothing more than an idea that just failed. Further it may be hard for a Big firm lawyer whose starting salary is three times the national average salary (not the national starting salary) to convey to people who will never earn that much money in a decade, how the white collar criminal is no different than they are, and how they and he are just, after all, neighbors.
Thirdly, there are lawyers who worked for the Government who did not go the Wall Street route. Now I am not enamoured of former prosecutors. I think they often fail to see the defects in the prosecution's case because they never saw them as prosecutors. Many are so sure of the governments superiority, that they are afraid to take them on in court. Some fear it will hurt their relationship with their former mates in the office whom they rely on to get good plea bargains.
On the other hand, there are some that are very good once they make the switch. Either way, whether you need a former prosecutor or not, they work on "Main Street" too.
Finally there is this idea that you get what you pay for. I guess some of that is true. The question I have with most Biglaw firms is, Do I need what I am paying for? Do I need a lawyer at Four Hundred Dollars an hour reviewing files and notes? Do I need him to summarize documents? Do I even want to pay someone on the hour to do this? Is an hourly rate the best way of paying a legal fee for me and my family?
These are questions that most Main Streeters ask before they start thinking about fees. It doesn't help you much if you win the case but lose your home in the process.
Finally a big advantage to a Main street lawyer, is the opportunity to be his biggest client. You are the priority case, there is always someone working on your file and only the most senior lawyers are assigned to the file. There is a benefit to being able to speak to your lawyer quickly and to know, he knows, everything there is to know about your case.
In all, the White Collar Criminal Defense Client has a lot to gain, and nothing to lose by coming with his case to a local Main Street lawyer. Now if they only read this before they lose all their money to Biglaw.
Tuesday, January 13, 2009
Lawyers Help. How to Answer the Question: What Do You Do For a Living?
Laser speech; elevator talk; hooks. These are all concepts that Public Relation experts have introduced into the lexicon of the lawyer. We are told at countless "Marketing Seminars" that we have to develop a way to tell people what we do in a short, attention grabbing way. I found this a little challenging at first. I am not a man of few words.
I am a story teller. I like to tell them and I like to hear good stories told. If you think about it. Story telling is what I do. I mean I do it in part. I tell the client's story as well as I can to a judge, a jury, an adversary. I tell it to a claims adjuster and to investigators and police. Sometimes I tell it to the clients family too.
But I do more than that do I not? After all, I am a Doctor of Laws. I am a "Man of Letters." I have been "hooded." I guess if asked what I do, I could say I write letters.
In fact of course I am a trial attorney. I handle criminal cases and civil cases. I am a Matrimonial lawyer. I handle crisis. I do so many things in the course of a day, I am unable to really find a way to tell people what I do in a short pithy manner.
The best way for me to explain my dilemma is to tell you a story:
Last week, a I received a phone call from a distraught mom. Her child was arrested for shoplifting. The child, a college senior has always been a great kid and gifted student. She has dreams of grad school and some kind of a professional license. Although time was tight, I decided to see her the same day. She and her parents came in. As they walked in, I could see what had happened and why. When they entered, Dad was on one side of her mom on the other. Mom was a wreak and the young girl, though apologetic was the calmest one in the group. She was huddled in a heavy coat and while it was cold outside, it was temperate in my office. The coat was a giveaway as to what was to come.
After a few pleasantries I asked the mom and dad to leave the office. I noticed that when they left, the client sat back a bit in her chair. She was still bundled in a heavy coat but it was not that cold in my office. It was almost as if she were hiding from me behind her coat. I asked if she was cold but she said no. I then asked her about what had happened the day before. I tried to ask her questions in a non-cognitive way. That is to say, I took things out of order and mixed in questions that had nothing to do with the previous question or even the facts, so as to keep the client from feeling too comfortable and developing a "rhythm".
The kid readily admitted she stole the item from the store. She had almost no emotion in telling me this. She seemed to have no insight as to why she even took the item as she was more than capable of paying for it. I used this as an opening. I asked her if she was ever overweight. She acknowledged she had been and felt she was presently a little "fat(ter)" than she wanted to be. Personally I thought she was beautiful. As a result I felt the next question would be a gateway to determining what had happened here. I asked her if she used binging and purging as a way to control her weight. She thought for a second about admitting this but then she acknowledged she had for a while, had stopped and then had begun again about a month ago. This would soon become significant.
After her admission on the binge/purge phenomenon I asked her point blank when she had been assaulted. She immediately denied ever being assaulted or abused. I waited a moment and looked her in the eyes. She hesitated, and the tears filled her eyes. She then admitted she had been attacked by two strangers outside of her dorm a few weeks into her freshman year. She had been drinking. She said she was not raped because a boy she knew happened onto the scene and broke it up. She had told no one about it. She told her new boyfriend about it just before winter break, a month ago...
Now in full sobs, she didn't want her parents to know. They are old and would be upset and she didn't want to upset them. She was afraid they wouldn't let her return to school. That they would be angry at her because she "let" herself be put into a situation she lost control over.
Of course I knew that they would be upset because she had been hurt and that if they found out they would readily understand what had happened and why the petty theft had occured. I knew they weren't going to pull her from school and that she needed to tell them. I also new they weren't going to fall apart. They weren't that "old". In fact they were MY AGE!!!! It never fails to amaze me how our children think their parents feeble when they turn eighteen...
Anyway, upon the parents return, she and I spoke to them. They were confused until she gave me permission to tell them what had happened. Then the waterworks started, and she got the love and support she needed. Her mom hugged her and cried. Dad was obviously concerned and upset but he handled it just right. I knew they were going to handle it well, they had produced a brave, smart, wonderful child and that didn't happen because they were judgemental, unsupportive or feeble. While it was tough to do, and not easy to handle, healing was beginning before my eyes.
I referred the parents to a Psycotherapist that handled sex crimes and victims so that they could process their feelings and then I referred the client to her Mental health facility at school. I am now going to seek dismissal of the case with the District Attorney and this kid will go on to achieve her dreams and fufill the promise she displayed. She is again her parents "golden child."
I am not a shrink, nor do I play one on TV, but I am a gatekeeper. I am a person who has some streetsmarts and life experience. I am a student and a teacher. I am a parent and a spouse which was the main reasons I handled that situation as well as I did. (It helps that my sons are the same age as my client above.)
I came home and was telling the story of what happened to my family. Both of my sons work with me in the office, and my wife still helps out with "managment issues" when I need her to (she was the best secretary I ever had). My youngest son, Frank, looked at me and said " Hey dad, I have a new laser speech for you." "I'm a lawyer and I help." I had to smile. In six words he encapculated exactly what I do, and what I aim to do. He says he wants to be a lawyer too, but he may have a career in public relations.
I have a new answer for the question "What do I do for a living?"
"I'm a lawyer, and I help."
I am a story teller. I like to tell them and I like to hear good stories told. If you think about it. Story telling is what I do. I mean I do it in part. I tell the client's story as well as I can to a judge, a jury, an adversary. I tell it to a claims adjuster and to investigators and police. Sometimes I tell it to the clients family too.
But I do more than that do I not? After all, I am a Doctor of Laws. I am a "Man of Letters." I have been "hooded." I guess if asked what I do, I could say I write letters.
In fact of course I am a trial attorney. I handle criminal cases and civil cases. I am a Matrimonial lawyer. I handle crisis. I do so many things in the course of a day, I am unable to really find a way to tell people what I do in a short pithy manner.
The best way for me to explain my dilemma is to tell you a story:
Last week, a I received a phone call from a distraught mom. Her child was arrested for shoplifting. The child, a college senior has always been a great kid and gifted student. She has dreams of grad school and some kind of a professional license. Although time was tight, I decided to see her the same day. She and her parents came in. As they walked in, I could see what had happened and why. When they entered, Dad was on one side of her mom on the other. Mom was a wreak and the young girl, though apologetic was the calmest one in the group. She was huddled in a heavy coat and while it was cold outside, it was temperate in my office. The coat was a giveaway as to what was to come.
After a few pleasantries I asked the mom and dad to leave the office. I noticed that when they left, the client sat back a bit in her chair. She was still bundled in a heavy coat but it was not that cold in my office. It was almost as if she were hiding from me behind her coat. I asked if she was cold but she said no. I then asked her about what had happened the day before. I tried to ask her questions in a non-cognitive way. That is to say, I took things out of order and mixed in questions that had nothing to do with the previous question or even the facts, so as to keep the client from feeling too comfortable and developing a "rhythm".
The kid readily admitted she stole the item from the store. She had almost no emotion in telling me this. She seemed to have no insight as to why she even took the item as she was more than capable of paying for it. I used this as an opening. I asked her if she was ever overweight. She acknowledged she had been and felt she was presently a little "fat(ter)" than she wanted to be. Personally I thought she was beautiful. As a result I felt the next question would be a gateway to determining what had happened here. I asked her if she used binging and purging as a way to control her weight. She thought for a second about admitting this but then she acknowledged she had for a while, had stopped and then had begun again about a month ago. This would soon become significant.
After her admission on the binge/purge phenomenon I asked her point blank when she had been assaulted. She immediately denied ever being assaulted or abused. I waited a moment and looked her in the eyes. She hesitated, and the tears filled her eyes. She then admitted she had been attacked by two strangers outside of her dorm a few weeks into her freshman year. She had been drinking. She said she was not raped because a boy she knew happened onto the scene and broke it up. She had told no one about it. She told her new boyfriend about it just before winter break, a month ago...
Now in full sobs, she didn't want her parents to know. They are old and would be upset and she didn't want to upset them. She was afraid they wouldn't let her return to school. That they would be angry at her because she "let" herself be put into a situation she lost control over.
Of course I knew that they would be upset because she had been hurt and that if they found out they would readily understand what had happened and why the petty theft had occured. I knew they weren't going to pull her from school and that she needed to tell them. I also new they weren't going to fall apart. They weren't that "old". In fact they were MY AGE!!!! It never fails to amaze me how our children think their parents feeble when they turn eighteen...
Anyway, upon the parents return, she and I spoke to them. They were confused until she gave me permission to tell them what had happened. Then the waterworks started, and she got the love and support she needed. Her mom hugged her and cried. Dad was obviously concerned and upset but he handled it just right. I knew they were going to handle it well, they had produced a brave, smart, wonderful child and that didn't happen because they were judgemental, unsupportive or feeble. While it was tough to do, and not easy to handle, healing was beginning before my eyes.
I referred the parents to a Psycotherapist that handled sex crimes and victims so that they could process their feelings and then I referred the client to her Mental health facility at school. I am now going to seek dismissal of the case with the District Attorney and this kid will go on to achieve her dreams and fufill the promise she displayed. She is again her parents "golden child."
I am not a shrink, nor do I play one on TV, but I am a gatekeeper. I am a person who has some streetsmarts and life experience. I am a student and a teacher. I am a parent and a spouse which was the main reasons I handled that situation as well as I did. (It helps that my sons are the same age as my client above.)
I came home and was telling the story of what happened to my family. Both of my sons work with me in the office, and my wife still helps out with "managment issues" when I need her to (she was the best secretary I ever had). My youngest son, Frank, looked at me and said " Hey dad, I have a new laser speech for you." "I'm a lawyer and I help." I had to smile. In six words he encapculated exactly what I do, and what I aim to do. He says he wants to be a lawyer too, but he may have a career in public relations.
I have a new answer for the question "What do I do for a living?"
"I'm a lawyer, and I help."
Sunday, July 20, 2008
Vior Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert. Part One
Expert witnesses in criminal trials are often members of police forces and Medical Examiner's offices. The County or State spends a lot of money to train these folks and they go to classes and they attend seminars. They have been on the job (especially in the police detective's case) for many years and often personally know the judges they appear before. They also have been found to be experts in dozens of other cases before the one you're trying so that their being named an expert now is a forgone conclusion. I have watched as they routinely are offered up as experts with nary a sound toward their preclusion as an expert. Why are we defense lawyers giving these people a free ride?
I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:
1. They almost always get named as experts so we don't bother to try to keep their testimony out.
2. We often expect their testimony, and so we build it into our case.
3. We do not have the tools available to us to get the background and to do a proper Voir Dire.
As noted scientist, author, and attorney Gil Safir writes, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion. This short series of posts aims to begin changing that. Today I am presenting part one of this two post presentation. Please feel free to add whatever you can in the comments.
I. Preparing the attack.
A. Frye or Daubert?
The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony.
Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.
Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).
Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.
B. What kind of expert do we need? Consultants v. Testimonial experts.
This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct.
First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts.
Why not let him testify?
Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)
I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well.
Why? Because he or she will have inside dirt I can toss at the other side's expert.
In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.
In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.
Remember, to get this witness qualified you are going to need:
1. Educational/academic degrees
2. a present position in the field, or recognition within the field.
3. Board Certification
4. Publication
5. Peer review of research
6. A lengthy career
7. Teaching/Lecturing within the field to other experts or at least to beginners.
8. Professional Associations and time within them.
9. Positions held in these associations.
10. Awards and honors achieved within the field and with in any sub-specialty.
11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)
Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness.
Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.
If a witness is a smart guy who also is a regular "Joe", all the better. One of my favorite witnesses was a short older German or Austrian Jewish woman who spoke with a heavy accent. She was named Dr. Ruth Finch. Now she was a wonderful character. As easily the Medical Doctor as she was your aunt Sadie. It took no time for the court officers and then the jurors to start speaking of her as Dr. Ruth (after another popular Shrink/sexologist Dr. Ruth Westhiemer who was the rage back then.) She educated the jurors, charmed them and completely frustrated the prosecutor. (Need I say it was a defendant's verdict.)
Now that we have figured out what standard we are going to use to determine if the testimony is going to come in, and we have determined what we need as far as an expert goes, and who (more or less by credentials) the witness will be, we are ready to try to keep the other side's witness off the witness chair, or if they do get up there, make them seem incompetent enough, that no self respecting person would send even an enemy to see them.
And that will be in Part II.
I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:
1. They almost always get named as experts so we don't bother to try to keep their testimony out.
2. We often expect their testimony, and so we build it into our case.
3. We do not have the tools available to us to get the background and to do a proper Voir Dire.
As noted scientist, author, and attorney Gil Safir writes, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion. This short series of posts aims to begin changing that. Today I am presenting part one of this two post presentation. Please feel free to add whatever you can in the comments.
I. Preparing the attack.
A. Frye or Daubert?
The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony.
Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.
Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).
Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.
B. What kind of expert do we need? Consultants v. Testimonial experts.
This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct.
First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts.
Why not let him testify?
Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)
I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well.
Why? Because he or she will have inside dirt I can toss at the other side's expert.
In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.
In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.
Remember, to get this witness qualified you are going to need:
1. Educational/academic degrees
2. a present position in the field, or recognition within the field.
3. Board Certification
4. Publication
5. Peer review of research
6. A lengthy career
7. Teaching/Lecturing within the field to other experts or at least to beginners.
8. Professional Associations and time within them.
9. Positions held in these associations.
10. Awards and honors achieved within the field and with in any sub-specialty.
11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)
Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness.
Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.
If a witness is a smart guy who also is a regular "Joe", all the better. One of my favorite witnesses was a short older German or Austrian Jewish woman who spoke with a heavy accent. She was named Dr. Ruth Finch. Now she was a wonderful character. As easily the Medical Doctor as she was your aunt Sadie. It took no time for the court officers and then the jurors to start speaking of her as Dr. Ruth (after another popular Shrink/sexologist Dr. Ruth Westhiemer who was the rage back then.) She educated the jurors, charmed them and completely frustrated the prosecutor. (Need I say it was a defendant's verdict.)
Now that we have figured out what standard we are going to use to determine if the testimony is going to come in, and we have determined what we need as far as an expert goes, and who (more or less by credentials) the witness will be, we are ready to try to keep the other side's witness off the witness chair, or if they do get up there, make them seem incompetent enough, that no self respecting person would send even an enemy to see them.
And that will be in Part II.
Saturday, July 19, 2008
Tomorrow I Begin Posting Here Again.
After closing this blog for over a year, I have decided to start posting on a weekly basis with updates as are necessary or as I feel like it.
Every weekend I will endeavor to get up a post on some area of criminal trial law that informs or even educates. I am also open to guest bloggers who have something to say but do not want to open their own blog.
So later tomorrow night. I will be bringing you Part I of what I think will be a two part posting on "Attacking the Credentials of an Expert.
Let me know what you all think.
Every weekend I will endeavor to get up a post on some area of criminal trial law that informs or even educates. I am also open to guest bloggers who have something to say but do not want to open their own blog.
So later tomorrow night. I will be bringing you Part I of what I think will be a two part posting on "Attacking the Credentials of an Expert.
Let me know what you all think.
Wednesday, March 21, 2007
Over-confident Witness Can Turn Off A Jury
Jury prep is a difficult "science." There is a tendency on both the part of the witness and the lawyer to want to come away as competent and all knowing. I have always worried about presenting witnesses who were too well trained. To that end, I have also worried about the witness who over equivocates. "I think"; "it seems as though"; " I believe"; "maybe" are all answers that to the attorney appear to be weak and not "selling" the theory of the case, well enough.
Now there is a new study out that verifies my suspicions. According to a new study at Cal Berkely an over confident witness who makes mistake on the stand is far more likely to anger a jury than one who seems unsure of himself.
The article is here.
Hattip: CrimProf Blog part of the Law Professor Blog Network.
Now there is a new study out that verifies my suspicions. According to a new study at Cal Berkely an over confident witness who makes mistake on the stand is far more likely to anger a jury than one who seems unsure of himself.
The article is here.
Hattip: CrimProf Blog part of the Law Professor Blog Network.
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