Lawyer Hatton

I have decided to move the blog to a new blog hosting service.  The new URL is http://lawyerhatton.blogspot.com/.  It will take me a few days to get the look and feel I want over there, but there are things I can do there that can't be done here.

Thanks to everyone who has dropped in here to read over the past almost a year. I look forward to hearing from you over on the new site.

~Tim

Anyone who has been reading these posts for the past year or so will remember that I assisted Ken Sheets in trying a case in Xenia, Ohio last year.  The case was all about a family dispute over who owns stock in a company.  Although Ken won the case, the parties did not cease their bickering and today a second trial was held in the Common Pleas Court for Greene County, Ohio.  Since I live one mile from the Greene County Courthouse, and had an interest in the outcome, I attended the trial today.

All that is leading up to this question - why don't people go to trials anymore?  When I was a kid (and, ok, it was long ago - I am quite old), attending trials was something that people did for entertainment.  When I was practicing in my first career as a lawyer back in the 80's, people still did, to some extent.  Now the courtrooms are empty except for the parties and court personnel.

Today, I think people actually thought I was a little weird for watching.  They really didn't know who I was, since I am not a regular participant in proceedings in that court, not being admitted in Ohio, so they thought it a little strange that a non-party, non-participant would sit and watch all day.  At least, that's what I think they were thinking.  They sure looked at me askance at times.

I find this a little sad.  Trials are supposed to be public.  If people stop attending, are we losing a valuable right by giving it up?  Let's blame television.  There are certainly more spectacular things, including trials, to be seen on TV.  How can a family business dispute compete with the Paris Hilton trial?

Ah, the times they are a-changing.

~Tim

I noticed that an attorney was suspended for six months the other day for "ghost lawyering."  Basically, that is where the attorney agrees to help out a pro se litigant by either helping them prepare papers for filing, or preparing them entirely.  Basically, the Board of Professional responsibility for the state that licensed the attorney said that such conduct violates the rule requiring attorneys not to engage in "misrepresentation, fraud or deceit."

I've read over the rule and looked at what the lawyer did to get suspended, and I have to say that I just can't agree with the board that he deserved suspension.  I just don't see that helping a pro se litigant rises to the level of misrepresentation, fraud or deceit. The board based its decision upon their opinion that the court and opposing counsel were deceived into believing that the pro se litigant was acting without benefit of specialized legal knowledge.  I guess they might have cut the guy some slack or something, which they would not have done had they known he was getting help (or if he had been represented).  But that's pretty thin, in my humble opinion (and this, like everything else in this blog, represents only my opinion).

My thinking is that one purpose of the rules is to help ensure the availability of low cost, quality, legal representation of people in need.  How does a rule that places such a draconian penalty on helping someone who either desires to, or must for financial reasons, proceed pro se advance that purpose?  How was anyone harmed by the non-disclosure? Did the pro se litigant win a case he should not have won? Would he not have won had the back-door advice been disclosed?

Anyway, my opinion counts for nothing in these matters. All that I, or any of us, need do is attempt to comply with the rulings and interpretations of the rules, to the best of our ability.  And, I suppose, to make our opinions known so that perhaps the people who have the authority to reconsider these things take a longer look at them.

~Tim

Google, the search engine company, seems to be transforming itself into a one stop marketing store.  Long known for their Adwords product - where you create an Internet advertising campaign based upon keyword searches, telling the system how much you would pay for when someone clicks your ad and visits your web site and having your ad positioned and delivered in ratio to how much you would pay vs what other advertisers would pay - Google is now developing even more advertising related products.

New is the ability to purchase radio advertising through Google.  Using your Adwords account, you can obtain bids on radio time in your target markets and time periods.  Don't have a radio ad prepared?  Google has teamed with content creators who can develop your advertising for what seems to be a very reasonable fee.

Even newer is the ability to purchase print advertising in about 200 newspapers across the country.  Just design your ad, tell the system where in the paper you want your ad to appear (beer company ads on the sports page, for example) and Google will transmit the purchase to your target papers.  One stop - you no longer have to contact and negotiate pricing and placement with each paper.  And, like with the radio ads, Google has teamed with content creators so you can easily develop professional ads.

If you are marketing on a budget (and what solo practitioner isn't?) then you really should give Google a look.

~Tim

After my post regarding the heightened pleading requirements in effect after the U.S. Supreme Court decision in Bell Atlantic v. Twombly, someone wrote and asked me what would happen if you knew some facts, perhaps enough to state a claim under the old pleading rules, but didn't know enough to survive a motion to dismiss under the pleading requirements in effect since Bell Atlantic. That is a most interesting question.

It would appear that the solution would be to file the complaint, alleging what you know.  Then, when the defendant makes the inevitable motion to dismiss, you respond to the court with a request to take limited discovery prior to filing your response to the motion to dismiss.  It would be prudent to tell the court why you need the discovery, such as that the facts are in the exclusive control of the defendant and cannot be discovered unless you have access to procedures under the discovery rules.  Once you have the discovered facts, you can move to amend your complaint.  The court should be amenable to an amended complaint since it will have granted you discovery for just that purpose.

Some jurisdictions also have a procedure called a "Complaint for Discovery."  In such jurisdictions, you can file the complaint requesting only the necessary discovery, then filing a suit based upon the real complaint once all the facts are known.  If you are in such a jurisdiction, and that jurisdiction begins to follow Bell Atlantic (at this point there is simply no way to know how the state courts are going to interpret their rules, most of which are identical to Federal Rule 8), then the complaint for discovery process would seem to be tailor made for just this situation.

This is going to be an evolving area for quite some time and you are likely to see more 12(b)(6) motions being made than we did before.

~Tim