Gerrymandering, Gun Violence and the Sad State of Legislative Gridlock

Posted on by Barbara J. Shah

According to most reports, following the September 14, 2012, Newtown, CN grade school massacre, 90% of Americans, including gun owners and NRA members, were in agreement that some stronger controls on the purchase of weapons was appropriate.  Background checks for 100% of gun purchases, eliminating the gun show loophole, and a nationwide coordinated automated registry of domestic violence perpetrators and those with mental health commitments, were favored by many of the American people.  Even the President was in favor of these measures.  Yet no such laws were even introduced into Congress, let alone voted on by the members. Why did this happen?

 

Fast forward to the Summer of 2017; although the Affordable Care Act (“Obamacare”) had by that time become favored by the majority of Americans, the U. S. House of Representatives passed the American Health Care Act, which, if enacted into law, would have stripped health insurance from millions of Americans, increased premiums, and given a huge tax benefit to wealthy health insurance companies and executives.  The U. S. Senate, which put together its own Obamacare repeal act, came within one vote of passing an even more draconian bill.  Rather than working with Democrats to fix the problems which were causing health insurance premiums to rise, the Republicans looked only to the Republicans to pass their legislation. Why was Congress so out of touch with the people it was elected to represent?

 

As a PA resident, I have seen similar gridlock in the legislature of this Commonwealth.  Both houses of the legislature are controlled by Republicans, and our governor is a Democrat.  I have been working with a non-partisan group known as Fair Districts PA, an anti-gerrymandering organization which advocates for an amendment to the PA Constitution to take the power of drawing PA State and Congressional Districts away from our partisan legislators and assign the job to a panel of non-partisan citizens.  In order to amend our Constitution to permit this, identical bills should be introduced and passed, one each in the PA Senate and PA House, for two consecutive legislative sessions, and then it has to be voted on by PA voters as a special question during an election.  The bills have been written and introduced, co-sponsored by both Republicans and Democrats, but the House Majority Leader refuses to call the House Bill up for a vote. It is clear that the vast majority of PA citizens are opposed to gerrymandering and would prefer maps drawn up by a non-partisan commission.  Why aren’t these bills being called up for a vote?

 

In similar fashion, the annual PA budget is at a standstill.  Although the Governor and the Republican Senate have reached agreement on a balanced budget which would institute a small severance tax on the gas extracted from fracking in PA (PA being the only state from which there is oil or gas extraction which has no such severance tax), but the PA House refuses to even consider an extraction tax.  At present this leaves a $1.9 billion hold in the budget.  The House majority leader, interviewed on NPR in October 2017, admitted that the House Democrats would vote for an extraction tax, and some of the Republican members would also accept an extraction tax, but the majority of “his caucus” was not agreeable to it, so they were not interested in pursuing that option.

 

The majority of Americans favor legislation which would allow DACA recipients a path to citizenship, however no bills to accomplish this are on the horizon.  On the other hand, the U.S. House of Representatives recently introduced and passed (with mainly Republican votes) an anti-abortion bill that I am certain the general public is not clamoring for.  Certainly, many of their “base” is supportive of this, but I am certain that few legislators paused to check with their constituents to see if this was a high priority item with them.

 

Across the nation, both state legislators have and U. S. Congressmen and Senators been refusing to hold town halls or meeting with numbers of the voters in their districts, fearing an ugly confrontation with constituents who disagree with the positions they have been taken on some of these issues. This all seems to odd.  Why wouldn’t they want to hear from their voters?  Why would they vote in ways contrary to the wishes or best interests of their constituents?

 

Legislatures have hearings on issues which everyone agrees upon, like the Equifax data breach, where Senators took turns lambasting the former CEO about what a terrible thing the data breach was.  Did we need a hearing to determine this?  Or were they just posturing for the public?  Looking at their legislative calendar, we see them proudly point to laws that celebrate local heroes or toughen restrictions on people who hurt animals, while the real issues of the day fester. Our entire legislative system has fallen into disarray.

 

The one theme which runs through all of these illustrations is that party loyalty now trumps state, district or local issues. In as many as 20 U.S. states, the election districts are “rigged” or gerrymandered to yield a majority of “safe” seats to members of one political party or another. This is done through a variety of methods, generally the majority party in a state legislature drawing electoral boundaries using computerized voter data and maps, which “pack” or “crack” groups of voters into voting districts to result in a permanent majority for that party in the legislature, or in the U. S. Congress, following a U. S. Census.  For example, the majority Republicans redrew the Wisconsin legislative districts in 2011 (following the 2010 Census), in such a manner as to produce a result that, while Democratic candidates for Wisconsin legislative seats won a clear majority of votes in 2012 and 2014, they were never able to capture more than 39 of Wisconsin’s 99 legislative seats.

 

As a result, loyalty to the wishes of party leaders or the party “caucus” has become more important than listening to the desires of the voters in that legislator’s district.  If a legislator has the temerity to “disobey” the party leader or caucus, they are likely to face a well-financed primary opponent in their next re-election bid.  And who votes in the primaries?  Across the nation it is the same in “closed primary” states (like PA), where only voters registered as members of that party, often a small minority of voters, mostly the party faithful, end up voting in the primaries, nominating candidates who are on good terms with their party leaders.  Voters who are not aligned with either of the major parties are left out of the candidate selection process altogether. CA has chucked this entire system, with entirely open primaries, so that the “top two” vote-getters will face each other in the fall election.  They, a progressive state, are the only state in the US with this electoral system.

 

The big money that is allowed in political campaigns due to the U.S. Supreme Court’s decision in 2014 in the Citizens United case.  has also exacerbated this problem of candidates not paying attention to local issues, because it seems that all races are “nationalized,” by painting the disfavored candidate as a “tool” of the right-wing or left-wing “radicals.”

 

A recent poll indicates that the political parties in this country are now more divided on issues than ever before; in earlier days, Senators and Congressmen often worked “across the aisle” to solve this nation’s problems. Nowadays that has almost become a thing of the past.  The U.S. Supreme Court has just heard arguments on a case brought by Wisconsin voters, which claims that their politically gerrymandered districts violate the Constitution and threaten our democracy.  A similar lawsuit is pending in PA.  Something definitely needs to change, if our legislative bodies are to return to caring about local issues and the hopes and dreams of their constituents, rather than a national strategy.  Let’s hope we find a way back to the system the writers of our Constitution intended, and away from unyielding partisan positions.

 

Gun Rights and Domestic Violence in America

Posted on by Barbara J. Shah

Just a little over a year ago, on September 1, 2016, the Pittsburgh Post-Gazette carried the following article: “Long-time abusive relationship ends with death of Washington County Couple.” The article tells the all-too-often story this way: State police trooper Sarah Teagarden got the call in the wee hours of Tuesday: Kevin Ewing had cut off his ankle bracelet and had taken at gunpoint his wife, Tierne Ewing. It was the second time in two months the Washington County couple were on police radar. The first time, on July 8, Mrs. Ewing had escaped after being held for 12 days and tortured by her 47-year old husband…locking her in a closet… and threatening repeatedly that he would shoot her in the head then shoot himself, too. He made good on his word Tuesday night…. . The article continued, “it was [s]enseless and sad but not unexpected. The couple, childhood sweethearts, had a relationship marred by verbal and physical abuse as long as anyone could remember.”

In 2001, court records show that Tierne got a PFA (Protection from Abuse) order which restricted Kevin from having any contact with Tierne. He violated it at least twice, and 2 criminal cases were filed against him that year, as a result of which he spent at least 7 months in jail.

After the July 8 incident, Tierne Ewing got another PFA order which not only restricted Kevin from seeing her, but also required that he surrender all of his guns (he owned several). Unfortunately, the guns were “surrendered” to his mother. (This is the result of a loophole in PA’s Protection from Abuse law; during the summer of 2017 an amendment to the law to require the surrender of guns in PFA cases to be made to police departments or licensed firearm dealers was proposed, but it failed to be brought up for consideration by the Republican majority.)

On Tuesday, August 30, Kevin cut off the monitoring bracelet installed on his ankle by the court, took one of his guns from his mother’s house, and kidnapped Tierne at gunpoint, taking her to a nearby barn where he apparently held her for several hours. As the police were closing in, he shot her in the head and then shot himself.

Since the Las Vegas mass shooting on October 1, 2017, there has been a great deal of discussion about gun violence in the U.S. and how to avoid it, or at least some of it. The nub of the problem extends to the courts’ interpretation of the Second Amendment to the U. S. Constitution, which says, in whole, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” That’s the whole Second Amendment. Does it mean that everyone has the right to have as many guns of any and all types as he or she wants? Does it mean that the State (or Federal or local government) cannot impose any regulation or law restricting the purchase or possession of guns or gun accessories by any American? Clearly the answer to the second question is no, but the forces supporting a broad interpretation of the Second Amendment push back when any curtailment of “gun rights” is being proposed or attempted to be enacted into law. The answer to the first question is …well, maybe.

So, let’s talk about the impact of these issues on society, but more specifically the lives and homes of Americans. Some sample statistics: According to the Violence Policy Center, more than 5 times as many women were murdered by an intimate acquaintance than by a stranger in the year 2000. Additionally, while firearm homicides involving male victims were mostly committed by male perpetrators, 95% of female firearm homicide victims were murdered by a male. Congress, recognizing the unique and deadly role firearms play in domestic violence passed the Protective Order Gun Ban in 1994. The law prohibits gun possession by a person against whom there is a restraining or protective order for domestic violence. In 1996, Congress passed the Domestic Violence Misdemeanor Gun Ban, which prohibits anyone convicted of a misdemeanor crime of domestic violence from purchasing or possessing a gun. Sounds like problems solved, right? Well, not so fast….

In an article in October 2015 by Christina Cauterucci, “How Domestic Abusers get to keep their guns, Cauterucci points out that the 1996 law, spurred by the staggering statistics such as those mentioned above, left two gaping loopholes. First, even though the victims of intimate-partner homicide are usually dating their partners, not married to them, the federal definition of domestic abuse required that the couple be married, cohabitating, or the parents of shared children. This is called the “boyfriend loophole.” The other loophole in the federal gun ban for domestic abusers also leaves the perpetrators’ existing gun collection untouched, which renders it ineffective against abusers who already owned firearms.

On March 17, 2013, Michael Luo wrote in an article in the New York Times, “in Some States Gun Rights Trump Orders of Protection,” that in statehouses across the country, the NRA and other gun-rights groups have beaten back legislation mandating the surrender of firearms in domestic violence situations. They argue that gun ownership, as a fundamental constitutional right, should not be stripped away for anything less serious than a felony conviction and certainly not, as an NRA lobbyist in Washington State stated to legislators, “for the mere issuance of court orders.” Luo notes that the 1994 Protection Order Gun Ban is rarely enforced; during 2012, prosecutors nationwide filed fewer than 50 such cases, and as a result, the law has largely fallen to a state-by-state patchwork of laws to regulate this issue. Or not. A 2013 a federal law named Zero Tolerance for Domestic Abusers Act was introduced to close the “boyfriend loophole” and extend the law to convicted stalkers and abusers of any former intimate partner, but it failed to pass.

History will judge whether the Moms Demand Action for Gun Sense in America, a group which formed after the Newtown, CN, massacre of grade school children and teachers, can change the minds and hearts of Americans, or, more importantly, their legislators, and begin the serious consideration of common-sense methods for avoiding further gun violence in America.

Where the Rubber Meets the Road – Common Pleas Courts in PA: Part III of the series, “Why do we elect judges, and Why should I care?”

Posted on by Barbara J. Shah

The Courts of Common Pleas, also referred to as trial courts, are the county courts of Pennsylvania.  Each county has one except for the 7 judicial districts that include 2 counties. While it is true that Magisterial District Judges hold trials on some smaller civil and criminal cases, aggrieved litigants or defendants have a right to appeal, that is, have the matter re-heard before a judge of the Court of Common Pleas, and that hearing is “de novo,” meaning that whatever happened at the MDJ level is not considered.  An appeal to the Court of Common Pleas is a” do-over.”  However, there is no “do-over” once a judge of the Court of Common Pleas has entered a judgment or a verdict.   It is a final order, and although appeals may be taken from Common Pleas judgments and verdicts, it is not a “do-over.”  An appeals court can only reverse a common pleas judge on an error of law, a procedural mistake, or an “abuse of discretion,” meaning that no person hearing that testimony (and believing the witnesses he or she heard) should have arrived at such a decision.  All witness truthfulness judgments are left to the judges. This is a very tough standard to overcome.

Statistics published by the PA Superior Court (the next level of appeals for most cases heard by Common Pleas Courts) for 2014 indicate that 79% of appeals are denied, that is, the decisions of the trial court are affirmed, and that only 13% of appeals result in a reversal.  The other outcomes are cases in which appeals are withdrawn, quashed, or disposed of in another way.  What this means to the litigant/defendant is that what happens to their case before a Common Pleas judge is most likely the final outcome.

Common Pleas courts have several major assignments, often split or rotated among the judges of that district, those being Orphans Court (wills, probate estates, guardianships, and adoptions), Criminal court (prosecutes crimes in the name of the Commonwealth), Family Court (divorce support, custody, and juvenile court), and Civil division (where litigants sue one another for damages, eviction, or other money remedies.) Philadelphia and Pittsburgh being the two largest population centers in PA, there are between 1 – 93 judges in PA judicial districts. (93 being of course Philadelphia), Obviously in one-judge districts, one judge wears all the “hats.”

For civil lawsuits, MDJ’s can adjudicate cases up to $12,000 worth of damages, but their decisions can be appealed to Common Pleas Courts, who have “original jurisdiction” over cases above $12,000 in damages.  Millions of dollars may be at stake, or maybe a few thousand.  All procedures are the same, regardless of the size of the case.  (The one exception to this is that cases with claimed damages up to $40,000 are usually first heard by a panel of three “arbitrators” (lawyers who sit in panels of 3) and make a recommendation for a judgment or nonsuit.  However, as in appeals from MDJ’s, either party can appeal the arbitrator’s recommendation for a “de novo” hearing before a judge.

Orphans Court judges hear cases relating to wills, alleged incapacity, termination of parental rights for adoption proceedings, probate of estates, and issues relating to trusts.

Family Court judges decides issues relating to divorce, property distribution related to divorce, spousal and child support, and child custody.  They also preside over juvenile matters, from truancy to juvenile delinquency (crimes committed by children), and cases in which children may be endangered by their parents or persons in their homes.

Civil Division judges hear appeals from MDJ traffic court cases, as well as presiding over (and often trying to settle) litigation between parties, including traffic accidents, breach of contract cases, and any other sorts of cases in which one individual or corporation is seeking damages from another.

Knowing then, that Common Pleas Court judges have this much power over the lives of the citizens of their county/judicial district, who they are, how are they selected, and retained in office should be a matter of great concern to the voting public. Unlike MDJ’s, candidates for Court of Common Pleas must be lawyers admitted to practice in PA, and in good standing with the PA Supreme Court’s disciplinary system, which includes paying annual fees, maintaining malpractice insurance, and earning 12 hours of continuing legal education each year.  They are elected to 10-year terms, running and Republicans or Democrats (but, as with MDJ candidates, they are permitted to cross-file, that is, run as both a Republican and a Democrat).  Once elected, they do not have to run again. At the end of their 10-year terms, sitting judges are subject to a “yes or no” retention election.  Since this system was established, there is over a 99% rate of retention of PA judges seeking to retain their seats.  Their salaries, adjusted for the cost of living each year, are $178,868 per year for 2017, plus a generous pension system, on which they can retire as early as age 60 with 5 years or more of service, at 100% of their final salary.

How can Pa voters determine who is an appropriate candidate for Common Pleas Court?  This is the subject which has created some controversy over the years.  Many states select all their judges through some merit selection system, as they do for federal courts.  PA elects every judicial position.  In lieu of knowing all the candidates (a nearly impossible task for most voters), they are left to rely on the recommendation of their friends and neighbors, the political parties, and, hopefully, judicial candidate recommendations based on interviews conducted by a state or local bar association and publicized by them.  Judicial temperament, fairness, experience, legal knowledge, and other factors which are scrutinized by their ratings should be the most influential.  Political party recommendations generally reflect the political contacts or activity by a candidate, which has little to do with their qualifications for the position of Common Pleas Court judge.  Sometimes the candidates with the most money who can run political TV advertising or who mail out their ads to voters will get the nod, only because the voters have seen or heard their name. Most voters who go to vote for judges feel entirely in the dark about the actual qualifications of the judicial candidates.

Obviously, it is tough to be a voter making a decision on PA Common Pleas Court judges, but given the importance of this position, and the fact that the elected candidate will probably keep that position until retirement, makes it very important.

What’s Wrong with PA Voting Districts?– A Brief Introduction to Gerrymandering

Posted on by Barbara J. Shah

For those of us who live in Pennsylvania, are U. S. Citizens, and register and vote in elections, unless you are really savvy, you probably don’t know the numbers of the legislative and Congressional districts you live in, your state representative and state senator, or your Congressman or woman.  Even if you do know who these people are, it’s a safe bet you don’t know the outline of the district that person represents.  And if you’ve been around for a while, it’s also a safe bet that the size, shape, and number of these legislative districts have changed in the past 15-20 years.  Why do they change, and who is in charge of drawing these district lines?

 Let’s talk about U. S. Congressional Districts first.  About 100 years ago, although the Constitution itself doesn’t say how many Members of Congress there are supposed to be, the total number was set at 435.  There are always 2 senators from every state, so that does not change, unless a new state is admitted to the union.  The Constitution does require that all the 435 members of Congress should represent approximately the same number of people, uniformly across the country. Every 10 years, there is a census taken, and population shifts or population growth is determined.  For the most part, northern old industrial states have been losing population, while Western and Southern states have gained population.  That means that congressional seats must be “reapportioned” among the states.  After the 2000 Census, PA lost 2 representatives, and after the 2010 census, it lost 1 additional representative; these seats were shifted to states with a population growth.  PA now has 18 congressional representatives.

So, under the Constitution, it is the duty of Pennsylvania to “reapportion” the PA Congressional districts to reduce the number of Congressional districts in accordance with the census and redraw the lines.  However, the Census also illustrates shifts in population within PA.  Generally, Western PA has been losing more population than Eastern PA, so the 3 Congressional seats which have been eliminated over the past 17 years have all been from Western PA.  The U.S. Constitution is not specific as to how states reapportion or redraw their district lines, leaving it up to the states.  So, in PA our Constitution leaves it up to the state legislature.  Not surprisingly, they have become “creative” with drawing those boundary lines.  When the PA State legislature was dominated by Republicans after the 2000 Census, they created a wide-ranging and weird-shaped Congressional boundary line, for example, when they redrew the 19th Congressional district lines to pit two popular Democratic Congressmen against each other (Mascara and Murtha). Then after the 2010 Census (and Murtha’s death) they redrew the lines and put a large portion of his district into the 12th district, which was then won by a Republican Keith Ruthfuss.  Much of the rest of it was incorporated into a long, thin 18th district which is represented by Republican Tim Murphy.

The numbers of voters in the district are fairly uniform, but through “packing,” the legislators draw voting districts where, say, 90% of the voters are Democrats, and other districts where the Republican dominate, by, say, 53 or 55%.  Alternatively, they may pursue a tactic of “cracking,” that is, they split up heavily Democratic areas into smaller sections and combine each of them with rural Republican areas to dilute their voting effect.

As a result, although PA voters generally vote, say, 51% Democratic and 49% Republican (or in the reverse as in the last Presidential election), there are 5 Democrats and 13 Republicans in the PA Congressional delegation.  This is not to imply that this is only a Republican tendency – in places where Democrats dominate the state legislatures and the legislatures determine the Congressional district boundaries, they have done the same.

The term “gerrymander” (pronounced “Jerry-mander”) was introduced into the language more than 200 years ago, when this technique was used by former MA governor Elbridge Gerry to produce a district shaped like what news organizations compared to a salamander; they then began calling it a “gerrymander.” PA, having weak election and contribution disclosure laws, has been a prime example of gerrymandering for the country.  Should something be done about this?  What can be done about this?  Does it make a difference if you are a Republican or a Democrat?  More on that in the next article.

By Barbara J. Shah, Esquire

Barbara

 

My Attorney Isn’t Doing What I Tell Her to Do – Isn’t She Supposed to be Working for Me?

Posted on by Barbara J. Shah

The question of how an attorney goes about representing a client is not a simple one. On the issue of loyalty, there is no question; if the attorney cannot be trusted to look out for his or her client’s best interests, that is an attorney-client relationship that should no longer continue. The attorney owes the client the duty of absolute loyalty, and if there is a question of who the attorney owes loyalty to, the attorney should step aside. This includes situations where someone else other than the client is paying the bill; the attorney can and must focus on what is good for the actual client and cannot share information with or take instructions from anyone else, without the client’s express permission.

The issue generally presents itself in a different way, that is, the client lays out a course of action that they want to be followed or a legal position they want to take, to the attorney, and the attorney disagrees with the client’s request. Is an attorney required to do whatever the client instructs them to do? The simple and easy answer to the question is “no,” because the Rules of Professional Conduct adopted by the PA Supreme Court are binding on all attorneys licensed to practice law in PA, and these rules prohibit certain actions by an attorney which are considered to be prejudicial to the system of justice. We are not permitted to (individually or through others) present perjured testimony, file lawsuits which have no justification, or intimidate witnesses, to name just a few.

But beyond that easy answer regarding not taking actions prohibited by rules of conduct, is another answer which is much more difficult, and one which distills the essence of the attorney-client relationship. What are attorneys really supposed to do for their clients? One clue can be found in the rarely-used synonym for lawyer, “counselor.”

What a lawyer should be doing for his or her client is listening closely to all aspects of the problem which brought the client to the lawyer in the first place, and then giving a reasoned analysis of that client’s situation and the options available to the client for resolving the problem.  These options must include an analysis of personal factors, including costs, which limit the options available to the client. If there are children involved, the lawyer must consider and discuss with the client the effect on the children of the exercise of each option available to the client. It means that the lawyer must have an extensive “toolbox.” There is no one-size-fits-all solution to every problem. Each client situation or problem has its own unique issues.

Then the lawyer must counsel the client on his or her recommendations for solutions of the client’s problem. Most people have heard the old saying, “a good lawyer knows the law; a great lawyer knows the judge.” I finally came to peace with that saying; for years I thought it meant that a lawyer should develop some sort of “buddy” relationship with a judge to seek to influence his or her decisions because of their personal relationship, and I thought it was a repugnant idea. However, I finally came to understand what the saying means. It doesn’t mean that there should be a personal relationship between the lawyer and the judge; it means that the lawyer needs to take time to understand how the judge thinks about a particular kind of case by being attentive in that judge’s courtroom, talking to the lawyer’s colleagues, and studying the judge’s decisions, to be able to predict, with some degree of certainty, how a judge will rule on a particular type of case or in a particular situation.

When counseling a client, if rulings of the judge of the case (or the general attitude of the local bench on a particular kind of case) are known to the lawyer, the lawyer must make it clear to the client that certain types of actions will not be tolerated by the court, or that certain actions are much more likely to achieve the result the client desires to attain. No lawyer should simply be a “mouthpiece” for the client without undertaking such an analysis of the potential outcomes for a course of action. If in the lawyer’s learned analysis a course of action the client is proposing would not achieve the desired result, it is the lawyer’s job to say “No.”

If the client doesn’t like what the lawyer says, he or she can move on and look for a lawyer who tells them what they want to hear. However, in the end the results will most likely leave the client unhappy. Lawyers, have courage! Clients, be smart! There is a difference between lawyers, and the truth is, if the lawyer is telling the client something they don’t want to hear, then that is very likely a great lawyer.

Why is My Divorce Lawyer So Friendly With my Ex’s Lawyer?

Posted on by Barbara J. Shah

 

Sometimes it is hard for clients to understand when I joke with or make small talk with opposing counsel.    Clients don’t really want to be in court anyway, and they are usually very stressed just to be there.  Something very important to them is in the process of being settled or litigated, and they may be filled with dread.  The last thing they want to do is laugh or joke, and often they see their lawyer doing just that, and often with the hated opposing counsel.

First of all, it seems to be pretty universal that since clients are in a battle with a hated enemy – the person on the other side of their case- they expect me to hate the opposing party too.  However, it is important that I do not adopt my client’s attitude towards their adversary.  If I did, it would rob me of my ability to make an independent analysis of the case.  This is what they trained us to do in law school.  If we can’t maintain our independence and independent thought about a case, we are of little value to our client.

In order to serve my clients’ actual best interests, I can’t get “invested” in their views of their case.  I have to coldly analyze it, coldly analyze the opposing party’s case, and make a learned prediction of the likely range of outcomes.   This gives me the ability of determine a range of settlement options and make recommendations to my client which are reasonable, given the situation and set of facts which look provable to me.  There are many factors to analyze, including my client’s ability to testify, negative factors which may affect the case, the skill of opposing counsel, and what I know about a judge’s predilections from past experience.  This is why I get paid the “big bucks.”  My analysis pulls no punches and takes no prisoners.  I have to look at everything with a cold, independent eye.   Would you prefer a lawyer who gives you an honest analysis of your chances or one who tells you what you want to hear?  If you choose the latter, might as well stop reading this article.

In most jurisdictions, there is a relatively small circle of attorneys who are experienced in a particular area of law.  Pennsylvania does not allow lawyers to advertise “specialties” in law; we are all general practitioners in the eyes of the PA Supreme Court.  However, most lawyers, especially those in or near larger urban areas, have developed an area of concentration within the law.  Hopefully if your case is in such an urban area, you have been referred to a lawyer who mainly practices in the area of law your case relates to.  In any case, these lawyers get to know each other pretty well.  We belong to the same organizations, attend court on a regular basis, and attend meetings (and parties) which pretty much this same group of lawyers also do.

We have usually developed healthy professional relationships with these lawyers we see on a regular basis.  We may know about their family, health issues, and other information.  For the most part, they are just like us, struggling to maintain their professional independence while trying to advance their client’s interests, observing the rules of ethics which govern our profession, and making a living.  When you consider this, wouldn’t it be odd if we didn’t act cordially to one another?  It’s true that during court appearances, some attorneys act like bullies or make disparaging remarks about the opposing party or their case, but  generally this is just part of the “persona” that they adopt in public.  Sometimes they do it to impress their clients who are nearby and don’t understand that lawyers really don’t hate each other, or that they don’t really hate the opposing party. (Unfortunately, sometimes lawyers have lost their independence from a case, but that’s another story.)

So as a client you should feel good if your lawyer banters with opposing counsel in the hallway or outside of court; it is a good sign that their independence is intact, and that they are not uptight or worried about your case.  Smile and trust your lawyer!

 

 

 

The Truth about Divorce Lawyers Who Lie

Posted on by Barbara J. Shah

DO LAWYERS LIE IN COURT?

Before I became a lawyer, while I was in law school, it was confusing to me why lawyers had a reputation of not telling the truth.  To me it was pretty clear – as a lawyer I would be representing my clients and helping them explain their position of point of view in court.  Since I would not be a litigant, my  role was a very limited one, and since I was not personally a witness to anything, what was there for me to lie about?

Well, 32 years later I have seen a lot, and now I understand that “liar” reputation that tends to follow the legal profession around.  First of all, let me be clear that the ethics requirements of my profession require that I always tell the truth to the judge, and I am not allowed to permit my clients to commit perjury, if I am certain, or substantially certain, that their testimony is untruthful.  I am supposed to ask for a recess in the proceedings, “remonstrate” with my client – essentially insist that they tell the truth – and if they refuse to change their testimony, I am supposed to ask the court for permission to withdraw as that witness’s lawyer.

As a general practice, I have always advised my clients to tell the truth.  First of all, I need to know the truth, so I can work with them to make smart decisions as to how to go about best presenting their case.  Perjury is against the law, so I can’t be a good lawyer/citizen if I permit my clients to break the law. Second, my reputation is important to me; I want judges and other lawyers to respect me; it helps my clients in the long run if the judges of their cases can feel confident that I don’t allow my clients to perjure themselves in testifying.

Unfortunately, there are lawyers that appear to be a lot less scrupulous with the truth.  Do they just forget to get enough information from their client and feel the need to cover up their lack of knowledge?  Is “winning” so important that they forget their obligations to the court and to society?  Why do some lawyers make up excuses for their clients not complying with a deadline or an order of court which are clearly false?  I try to make it clear to my clients:  doing the right thing is always better (and usually cheaper) than trying to “game” the system or using the courts to “wound” the other party.

There are plenty of lawyers around like me, those who are interested in upholding the sanctity of the legal system, so that those who have to rely on it don’t feel that they are behind the 8-ball. It’s true that trying to negotiate the legal system without a lawyer is difficult, but that is because there are procedures and rules which the system operates under, which are difficult for the layperson to understand and follow.  There’s a reason lawyers spent all of that time and money to attend law school.  Like I tell clients, of course anyone is entitled to represent themselves, just like I am entitled to try to fix my car instead of hiring a mechanic.  However, the results of self-representation are often pretty unsatisfying, just as any feeble attempts I may try to make to fix my car.

If you believe that “lawyers are liars,” you just haven’t met the right lawyer.  And if you are looking for a lawyer to help you perpetrate a lie, I suspect you can find one.  However, count me out on that.  I’m not interested.

Technical Competence Now Required for Pennsylvania Divorce Lawyers

Posted on by Barbara J. Shah

 

In October 2013 the PA Supreme Court adopted changes to the rules of professional conduct affecting PA attorneys, related to the issue of technical competence.  The rules now require PA attorneys to attain an appropriate level of technical competence and employ modern technology in their law practices, to the extent that it will improve their ability to represent their clients.   These changes were suggested by the American Bar Association, and many states have now adopted similar rules.

When I first began practicing law in 1982, once you got your law license, you were golden.  All you had to do was pay a small annual registration fee to the PA Supreme Court, not break any laws or rules relating to the conduct of the profession, and you could practice forever.  Sometime in the 1990’s, changes began to occur.  First, a fund was set up for victims of attorneys who stole or frittered away client money in their control, and the annual registration fee suddenly zoomed to over $70 per year.  Around the same time, disciplinary rules relating to lawyers were instituted to require that every lawyer, in order to maintain their right to practice law in PA, take CLE, or Continuing Legal Education courses every year, 12 “substantive” hours per year (courses relating to changes or developments in different fields of law) and one “ethics” credit, course relating to lawyers’ ethical obligations to their clients or the courts.  Since then, we get an annual print-out of all CLE courses we have taken during the past year, which have to be reported to the Disciplinary Board of the PA Supreme Court, to notify us whether or not we are in compliance with this CLE requirement.  If not, our license to practice law is suspended until we bring ourselves into compliance.

It seemed to me that this requirement was a no-brainer.  In the U.S., we follow the tradition set up by British law, of following legal precedent.  That means that if an appeals court in our state or the U.S. Supreme Court renders a decision which changes the way a law has been interpreted in the past, or interprets a new law, that decision is binding on all of the trial courts in the country.   Also, if a new law is passed by the legislature and signed by the governor, it is also binding on the courts unless they find it unconstitutional.   How else could we find out about these decisions, or changes in the statutes (laws passed by the PA Legislature), if we didn’t take refresher courses?   12 hours a year of refresher courses didn’t seem to be much of a burden.  Do you really want to employ a lawyer who doesn’t keep up with changes in the law?

Then came the computer revolution, the internet, emails, Facebook, and smartphones.  I remember when facsimile (fax) machines gave us the ability to exchange copies of documents, including signatures, in minutes.  Seemed amazing then, but now that scanning documents and email have become the preferred mode of exchanging documents and fast communications between lawyers and clients, it seems quaint, sort of old-fashioned, when a lawyer wants to fax you something.  A few years ago, the Orphans Court in Allegheny County (wills, estates, guardianships, and adoptions division of the court) began to require lawyers to put email addresses on court papers they filed.  That seemed controversial, since many lawyers didn’t personally have their own computers and had to rely on their office staff to receive and review their emails.  However, with the availability and ease of powerful lightweight laptops and tablet computers, and the advent of smartphones, most lawyers (and everyone else) now access their email regularly.

Now the ABA and the PA Supreme Court have made it official.  Lawyers must adapt to and keep up in some way with technological advances affecting their profession or step out of the way.  So, here is a new way to judge the competence of an attorney you are considering hiring:  Does he or she  give you an email address and encourage communication through that medium?  Does he or she have a website? Dinosaurs are fun to study as kids (and grown-up paleontologists), but do you really want to be represented by one?

~ Barbara J. Shah, Esquire