Is an Exceptional Attorney Essential?

Is there a distinction between essential and exceptional? How essential is it to choose the superb things we do and seek an outstanding result? Is an exceptional attorney essential? Perhaps, many individuals might have been content in utilizing a physician, dentist, accountant, and/or an attorney as long as they were not inferior.

However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

I believe the majority of individuals want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the benchmark or measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or abandoned the job, not actually completing the project.

In the practice of law, it can make a huge difference if the attorney focuses on a comprehensive approach, paying attention to each of the legally significant facts, doing more than being hurried to get the work done, even with far less insight and strategic steps are planned and/or utilized. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you first evaluate the advantages of requesting a detailed analysis, thorough scope of work to be performed involving, among other things, indispensable steps, such as a risk assessment; an examination of pivotal facts and legal principles; focused research; essential strategizing; and utilizing credible forensic experts to evaluate and provide an opinion integrated into a cogent and compelling report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, fitness, judgment, lawfulness, honesty, moral turpitude, competency, etc.

In summary, what some individuals may have previously thought were unnecessary because they did not think they required selecting an attorney who is exceptional, now are considering the very important criteria and issues as constituting essential characteristics in choosing the best lawyer (and the things they do).

Compelling and Cogent Legal Arguments

What are compelling and cogent legal arguments?

All of us from time to time have read magazines, newspapers and articles. It strains credulity, however, that far too much of what has been written is not sufficiently balanced to provide the reader with a true and accurate narrative. Even worse are long winded and/or rambling legal arguments some lawyers may assert to the Court or declare in their Legal Briefs, Motions, Points and Authorities, and other written documents. In addition to the necessity to provide interesting, insightful and easily understood writing, these presentations simply do not rise to the level of being deemed “good writing.”

Also, the statements and arguments a lawyer makes should be cogent, which means they should be powerful and effective. A lawyer’s role is to not simply state events in a narrative, but should present compelling arguments that are truly persuasive. Here, articulating facts, circumstances, statements and arguments should, but unfortunately may not always, be convincing.

Whether one is successful in these tasks may be in the eye of the beholder. However, those who spend countless and painstaking hours to think about and analyze their roles and responsibilities before framing what they intend to communicate may indeed have a better opportunity to obtain winning results. Moreover, they can provide the reader with impressive thoughts and ideas. Some may choose to utilize metaphors, insert something humorous and/or use other tools and skills to convey the subject matter and their information. While this may in certain ways be different, the goal is to benefit their respective clients who may thereby realize the outcome they desire.

Unanimous Jury Verdict is Required in Serious Crimes

Today, in the case of RAMOS vs LOUISIANA, April 20, 2020 (No. 18-5924), the U.S. Supreme Court ruled a unanimous jury verdict  is required in cases involving serious crimes. It held the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury trial, also requires the verdict in serious crimes to be unanimous. Since 1968, the 6th Amendment has been applied against states under the 14th Amendment of the Constitution. Duncan v. Louisiana, 391 U.S. 145 (1968).

Up to this point, a single juror’s vote to acquit a defendant was enough to prevent a conviction in 48 States and the federal courts. The state of Oregon now remains the only state that permits a non unanimous verdict in the case of a serious offense; this distinction exists because the right to a jury trial is inapplicable to “petty offenses.

The Court addressed the historical significance by declaring: “The requirement of juror unanimity emerged in 14th-century England and was soon accepted as a vital right  protected by the common law.” It further reasoned: ” So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”

The result of the Court’s decision is that defendants and prisoners in Louisiana and Oregon, the only two states in recent years that have allowed such verdicts, will have their cases overturned claiming their verdicts are now void.

SECRETLY RECORDED CONVERSATIONS ADMISSIBLE IN CRIMINAL CASES

On December 5, 2019, in a unanimous ruling, the California Supreme Court in the case of People vs. Guzman, declared prosecutors can use secretly recorded conversations and they are, therefore, admissible in criminal cases. This decision does not change the illegal status of secretly recorded conversations that are inadmissible in civil cases. Pursuant to Penal Code section 632, it is illegal to secretly record a private conversation without the express consent of the other person.

The California Supreme Court followed a line of cases that extended the principles set forth in the ballot measure entitled Proposition 8, passed by California voters in 1992, referred to as Marsy’s Law or the Victims’ Bill of Rights Act, which among other things, sought to allow all relevant evidence in a case to be admitted into evidence in a criminal preliminary hearing and criminal trial. In reaching its conclusion, the Court rejected the argument by the defense that such a ruling would violate the defendant’s right to privacy.

Exceptional Attorney and Essential

There may have been a point when one distinguished between exceptional and essential. Many individuals may have been content in utilizing a physician, dentist, accountant, and/or an attorney, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into an optimum forensic report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, judgment, lawfulness, moral turpitude, competency, etc.

In summary, what some may have previously thought were unnecessary because they did not think they  required selecting an attorney who is exceptional, now are considering the above issues as very important criteria and, therefore, essential characteristics in choosing the best lawyer (and the things they do).

LINGUISTICS AND THE PRACTICE OF LAW

Linguistics is the study of language. It is reflected in everything we say and what we do. Essentially, it impacts how we communicate with others. In this regard, every word can have significance; many of which are like a double-edged sword, in which there can be two completely different meanings.

To be effective in the practice of law, one must truly understand the impact EACH word has, which includes knowing how and when to be concise instead of wordy; and, to know whether we are in fact, as well as how to be, convincing instead of unpersuasive.

There is a distinction between “effective” counsel and “competent” legal representation in that the latter is legal advice and counsel without errors, such as whether the advice and representation would result in the denial of a fair trial. This is often classified as malpractice or negligence. On the other hand, one may not have departed from the elementary standards applicable to the practice of law and, therefore, not be negligent. However, one can still be “ineffective” by failing to obtain a winning result. In the practice of law and to be effective, a lawyer should strive for superior advocacy; this should apply to how one drafts legal documents; presents oral and written arguments; drafts and finalizes written communications; as well as the basic dialogues we have with those with whom we know and/or those with whom we want to influence by producing a positive response, feeling, or opinion.

It is the “art of communications” to know what to say, how to say it, when to say it, and, where is it acceptable or beneficial to do so. Additionally, one needs to know when to say no more, if only to allow the other individual an opportunity to digest what has been said and to reply, if desired.

Here are some considerations to help illustrate the above:

  • Is the same writing style and techniques in sending or responding to texts satisfactory in writing a letter, greeting card, etc.?
  • Do you communicate the same when conferring with a loved one, family member and/or friend? Are there differences when applying for a job; writing an essay or term paper for school or college; or submitting written arguments to the adversary in a case; to an organization; an arbitrator; judge; and to an administrative agency?
  • The tone of our communications can have a different impact, perhaps one that is not intended at all. The way words are expressed can lead to different meanings. For example, stating “I love you” in an angry or sarcastic voice vs. gently and softly saying the words “I love you.” Can you “hear” the difference? Try saying the same words in a different tone and you will see the reaction [the former angry tone likely will cause  a baby to cry, out of fear].
  • What about language in politics, in newspapers and television broadcasts? Are they fair and balanced?
  • In addition, should one consider the source of the communication; the activity and context in which the communication is made; as well as the credibility of the speaker or writer?
  • When is it appropriate to make a complimentary remark in contrast to ignoring what others may say or do that truly is, or seems improper?

Whether through linguistics and/or superior advocacy, the goal of a lawyer is to evoke an acceptance of an argument or obtain support for his/her argument. It is fair to say, effective legal counsel utilizes a combination of compelling and cogent language with logic and reasoning. Essentially, this involves both the “art of communication (linguistics)” and the “art of negotiation.”

 

DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

PUBLIC DISCLOSURE OF VIDEO AND AUDIO RECORDINGS BY LAW ENFORCEMENT

In California, an increasing number of law enforcement officers are using body cameras [more commonly referred to as “body cams”], which are attached to their clothing to record the encounters and work they perform while on duty.

Proponents claim the goal is to increase the public’s trust and confidence in all peace officers, including the most obvious such as the police, sheriffs and CHP; as such, there may be 25% or more police agencies currently utilizing these devices. Additionally, it affords officers an opportunity to have actual evidence of their work in the field, and to defend against false accusations such as police brutality. Others accept transparency and police accountability as a valid premise, however, note the fact these devices can be shut-off and/or not turned on as a reason they feel far less confident in the process.

In criminal cases, body cam footage is available to defense lawyers as part of the discovery. On the other hand, such video records are not readily available in civil cases. However, during the earlier 2017 sessions of the California legislature, Assembly Bill 748 would have made the footage of body cams a public record; although proposed and later amended, AB 748 remains unapproved at this point. Hence, the public does not have an absolute right to the disclosure of video and audio recordings by law enforcement officers.

This subject might seem straightforward to most observers however, it is not. One of the arguments against the public’s right to obtain such audio and video recordings involves a person’s individual right to privacy. Whether it is a traffic violation, a misdemeanor &/or a serious felony, all of us believe in the premise “one is innocent until proven guilty.” As such, an individual’s identity, license number, address and other personal information that is part of the cam footage is and should remain protected. Until the Legislature adopts standards that can be incorporated into a bill that is passed and then signed by the governor, or becomes a referendum initiated by a vote of the public,  the matter remains an open issue depending upon the local jurisdictions in California and/or the courts that may deal with it on a case by case basis.

Federal Judge Halts California Ban on 10 Bullet Gun Magazines

California has one of the strictest gun laws in the nation. After voters on November 8, 2016 passed Proposition 63, the state legislature concurred and the Governor signed into law a ban on possessing high capacity ammunition magazines (those that hold 10 or more bullets), which law was to go into effect July 1, 2017, making it a misdemeanor with punishment of a $100 fine and up to one year in County Jail. Previously in 2000, it was only unlawful to sell or buy high capacity gun magazines. On June 29th, a San Diego Federal District Court Judge ruled the ban was an unconstitutional violation of the Second Amendment to the U.S Constitution.  A Sacramento Federal Judge previously declined to take such action. At this time, therefore, those that already possess large capacity gun magazines can now keep them until a higher court rules on the temporary injunction or it becomes final.

Proponents of the ban have claimed it forces those using guns to reload by changing smaller capacity gun magazines, thereby allowing a victim to subdue the assailant and/or have an adequate period of time to flee.

Opponents state that argument does not apply to law-abiding citizens who previously were allowed to keep the high-capacity magazines they owned, as part of their constitutional right to defend themselves and their families. Additionally, they argued the law would have taken away private property without compensation.

Although not the subject of this blog, the U.S. Supreme Court decided on June 31st to not hear a case in which gun owners had complained their right to carry a concealed weapon for self-defense outside of one’s home was denied because they could not prove their desire to do so in public was no different than the right to self-protection of the general population. Both Justice Clarence Thomas and President Trump’s recent nomination of Justice Neil M. Gorsuch came out with a very strong dissent to that of the majority essentially criticizing the indefensible power of the State to regulate.

California Bail Policies

There are over one million adult arrested in California on an annual basis. Current statistics reveal that approximately one third of these individuals are bailed out, and only about three percent (3%) fail to appear in court for one or more legal proceeding.

The Eighth Amendment of the U.S. Constitution guarantees equal protection of the law and the right to reasonable bail, but this subject is not simple and for some it is controversial. The intent of the bail system is to protect an individual who is presumed innocent  from being punished unless and until proven guilty. It involves the payment of money or a deposit of security to assure a defendant who is charged with a crime will be present in Court on each of the hearing dates. A fixed amount of bail is established by case law or statute, and it is based upon the severity of the crime(s) and the flight risk of the defendant. In other words, bail is used as an incentive for the defendant to  show up for each of the court proceedings

It has often been argued that being required to post bail places an unfair and unreasonable burden on the middle class, and even a far greater challenge for the poorer population who cannot afford to post large sums of money to be released from jail. Because one is considered innocent until proven guilty, which requires proof beyond a reasonable doubt, the opponents of California bail policies point to the fact far too many are required to remain in jail because they cannot afford to post bail, and these very same individuals may later be deemed not guilty and/or likely enter into a plea agreement of a much lesser crime, which if that reduced offense was charged in the beginning, the bail would have been much lower. These opponents of the California bail system also argue taxpayers have to pay for the time and costs to maintain a defendant in jail, such as the salary of the Deputy Sheriffs, food and many other expenses related to the incarceration. It is further postulated that lawyers who have contested bail by taking the case to one of the six districts of the California Courts of Appeal, universally have been unsuccessful in reversing the Superior Court’s Order re: Bail.  

Proponents of the bail system in California contend that Superior Court Judges do an excellent job in their role of determining at a bail hearing or arraignment whether the facts support no bail (O.R. or free on one’s own recognizance); and/or imposing a lesser or higher bail amount. The Court reviews the defendant’s prior criminal history, if any; the seriousness of the current charges; whether there is  potential danger to the victim(s) of the crime and/or their family; the potential risk of harm to the public safety and, therefore, society at large; whether the defendant has ever failed to appear and, therefore, may now as well be a flight risk; and/or a host of other facts, including the “ties” the defendant has to the community, such as full time employment, a lease or ownership of his/her residence; and, family members; all of which tend to be relevant to the Court’s order regarding the extent of bail, if any.

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