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October 2011 Archives

#10: 24/7/365: The Culture Of Now

October 30, 2011

10 Post 2011-10-30 Depositphotos_2697803_XS.jpg
Alright. I'll admit it. I'm old. Maybe not physically, but certainly technologically. I am technically a Baby Boomer, born in the very last year of the Baby Boom. And when I think of computers, I am prone to thinking about Turing machines, vacuum tubes, UNIVAC, ENIAC, punch cards, Fortran, and Kurt Vonnegut's EPICAC, for better or worse. Yet, the more and more computers improve, I'm left wondering if Vonnegut wasn't a seer after all. And maybe we're all stuck inside the Monkey House.

I am one of those who can remember when calculators became inexpensive enough to own ... and how to type "naughty" words on them. Go ahead, type in 7734 and turn your calculator upside down. I dare ya!

For my ninth birthday, my parents bought me The Bowmar Brain, the very first American-made, mass-produced, hand-held calculator. I think it was the model 901B. I remember it being so outrageously expensive that I didn't get any other presents from my parents and I wasn't allowed to take it outside the house. I'm pretty sure that all it could do was add, subtract, multiply, and divide. Maybe it had a square root function. Maybe. And I think I still have it, tucked away somewhere in one of the many boxes in my parents' basement. Compared to today's calculators, it was like the cave paintings of Lascaux versus Photoshop. No contest.

And that was "only" 38 years ago. Fast forward to today! It's a different world.

Continue reading "#10: 24/7/365: The Culture Of Now" »

#9: Bring A Novel ... Perhaps 'War And Peace'

October 26, 2011

9 Post 2011-10-26 Depositphotos_2919051_XS.jpgAnother big question I am often asked by clients is this: "How long is the court appearance going to take?" There is no hard and fast answer to this question and I have stopped trying to answer it, because Murphy's Law applies therein. If I say "not long", it's long. If I say "long", it's not long. The answer, as you have probably come to expect is ... it depends. And it depends on a great many things, not least of which is the court's very own calendar.

When I started as an brand new attorney, I was always amazed at how much the various courts differed from one another - and even among themselves - on a day-to-day basis. You could never predict, with any real degree of accuracy, just how long any given court appearance could take in a given court. And that made managing your own calendar extremely frustrating. Clients want answers and it isn't fun when the answer is "I don't know".

I have had instances where what I thought was going to be a short and simple court appearance turned into an all-day affair. Conversely, I've also had instances where what I thought would be a convoluted and tortuous court appearance turned out to be but a blip on the court's radar that was quickly and cursorily dealt with. Both times I was left shaking my head in bemusement.

So, the safe answer is, as always: it depends. Sorry, but that is really the only answer to this particular question.

As it turns out, the answer turns on at least ten (10) distinct factors:

The first and most important factor is attorney preparedness;

The second, and equally important, factor is the presiding judge;

The third factor is how a given court manages its calendar;

The fourth factor is "overbooking";

The fifth factor is "hat wearing";

The sixth factor is punctuality;

The seventh factor is emergencies;

The eighth factor is parking;

The ninth factor is "judicial sclerosis";

And the tenth factor is the unexpected (as in the Spanish Inquisition!).

Continue reading "#9: Bring A Novel ... Perhaps 'War And Peace'" »

#8: Alphabet Soup Or ... Everything You've Wanted To Know About Common Legal Acronyms But Were Afraid To Ask, Part 3 of 3

October 23, 2011

8 Post 2011-10-23 Depositphotos_4913184_XS.jpgWrapping up the last two posts, here are a few of the more common abbreviations and acronyms you will hear when you listen to attorneyspeak, together with a very brief description of what they stand for:

51. ROE - "Rules of Evidence"

Believe it or not, there is such a thing as rules of evidence in family court though it might not always seem to be the case. These rules determine the admissibility of testimony and documents in a court proceeding and can often determine the difference between a great case and a poor one. For civil courts, many of the rules of evidence are found in Article 45 of the Civil Practice Law and Rules (CPLR).

52. ROR - "Released on Own Recognizance"

In criminal courts, for either violations or non-violent misdemeanors, bail is often not required (most especially for first-time offenders) and the defendant is released with a warning that they must appear for every future court appearance or face the possibility of arrest. This is what is called being released on your own recognizance.

53. RTP - "Return to Parent"

This is always what you want the permanency planning goal (PPG) to be in a permanency hearing report. Otherwise, you may stand a very good chance of having your children taken away from you by the court system and having them adopted by other people (very possibly their current foster parents).

Continue reading "#8: Alphabet Soup Or ... Everything You've Wanted To Know About Common Legal Acronyms But Were Afraid To Ask, Part 3 of 3" »

#7: Alphabet Soup Or ... Everything You've Wanted To Know About Common Legal Acronyms But Were Afraid To Ask, Part 2 of 3

October 19, 2011

7 Post 2011-10-19 Depositphotos_1886589_XS.jpgContinuing from the prior post, here are a few of the more common abbreviations and acronyms you will hear when you listen to attorneyspeak, together with a very brief description of what they stand for:

26. FFH - "Fact-Finding Hearing"

This is just a fancy name for a trial. In Family Court, there are no jury trials, so this would be what is called a bench trial (before a judge only). In most cases, the standard of proof is a preponderance of the evidence (50% + 1) and no hearsay is allowed (unless it meets one of the many exceptions to the hearsay rule).

27. FO - "Family Offense"

This is one of a variety of approximately twenty-six (26) acts, more specifically defined by the Penal Law, for which a person can seek the family court's (and the local criminal court's) intervention, usually in the form of an order of protection or, in extreme cases, incarceration of the offending party. This issue was more fully addressed in my 4th post, on October 9, 2011, "It's Just An Order Of Protection. No Big Deal, Right?"

28. FWOA - "Finding Without Admission"

In Article 10 (Child Protective Proceedings) cases, one alternative to trial that is sometimes offered by DSS is what is called a "finding (on consent) without admission". It is similar to an Alford plea, in criminal court. It essentially means that while you refuse to admit any guilt or wrongdoing, you nevertheless consent to a finding of neglect to avoid the potential minefield of a trial. Normally, DSS will require a person accepting this alternative to agree to a series of terms and conditions for the ultimate return of their children.

Continue reading "#7: Alphabet Soup Or ... Everything You've Wanted To Know About Common Legal Acronyms But Were Afraid To Ask, Part 2 of 3" »

#6: Alphabet Soup Or ... Everything You've Wanted To Know About Common Legal Acronyms But Were Afraid To Ask, Part 1 of 3

October 17, 2011

Depositphotos_4368444_XS.jpgAttorney 1: "In this case, the FCA is clear and there's no need to go to the NYCRR or the CPLR. Since we've got a problem with S&G, we'll just turn the TOP into a POP and DSS will do an ACOD with a new OS with T&C."

Attorney 2: "Yeah, but will the AFTC go along with it? He's claiming the PHR was never served. Plus the PPG is no longer RTP and I just know he won't consent to this JHO. Then there's the whole issue with the SSL and MHL, and the ongoing violations of the OS and the TPR that's coming."

If you understand what these two hypothetical attorneys are speaking about, you are either an attorney yourself or you've been in family court waaaaaaaaaaaaaaay too often.

The legal profession, like almost all others, speaks (and writes) in shorthand because it's quick, easy, and almost all of us know what we mean when we do so. However, most of our clients are left looking at us with one acronym emblazoned all over their dumbfounded faces: WTF?

Here are a few of the more common abbreviations and acronyms you will hear when you listen to attorneyspeak, together with a very brief description of what they stand for:

Continue reading "#6: Alphabet Soup Or ... Everything You've Wanted To Know About Common Legal Acronyms But Were Afraid To Ask, Part 1 of 3" »

#5: Congratulations! You've Just Been Ordered To Take Happy Pills!

October 12, 2011

Depositphotos_2215406_XS.jpgThat's precisely what one of my clients once said to me upon being ordered by a court into anger management counseling. Did he need it? Uh ... yeah. But he obviously didn't like being ordered to do it. And who would? It's like being defeated before the battle even gets started. But, then again, think about how badly you would have to act for a court to think you need it!

In my experience, anyone can benefit from anger management counseling (especially attorneys and judges!). It gives you enormous insight into what enormously incites you.

Now, granted I can empathize with your presumed need to go postal on someone. Especially if that certain someone keeps annoying you, harassing you, nagging at you, refusing to just let the issue go or harping over old fights, pushing all your buttons. They just will NOT let it go! And you can feel the pressure building. I feel for you, I really do. We've all been there. I mean, who hasn't thought of suspending the law for one solitary day and settling all the scores on the books? Some days, all you wanna do is open up a can of whupass on a person and just be done with it. Am I right?

Where was I? Oh, yeah.

Anyway, the reality is this: unless you want to go to jail - or prison - you really have to learn to control these otherwise incredibly gratifying urges to hurt people. Think these violent thoughts all you want - just don't act on them. In fact, some would say the mere act of thinking these violent thoughts is the heart of the problem itself. If the violent thoughts aren't there to start with, chances are good that you will not act on them.

Continue reading "#5: Congratulations! You've Just Been Ordered To Take Happy Pills!" »

#4: It's Just An Order Of Protection. No Big Deal, Right?

October 9, 2011

Depositphotos_4831279_XS.jpgSorry, but whenever I hear someone say this, or something like it, I laugh. Hard. Sometimes uncontrollably. Why? Because it's like having a pet alligator on a leash. No big deal, right? Except, that when it DOES become A Big Deal, it's going to come as something of a real shock, something far, far more than just A Big Deal.

Or try this. What if you heard a person say: "It's just cancer. No big deal, right?" You'd think: what the hell? Sorta stops you right in your tracks, doesn't it? Because it makes you ponder the obvious question: at what point DOES it become A Big Deal?

Orders of protection - like cancer - are Big Deals. And - like cancer - a very great deal depends on the details. And the more information you have about both, the more able you are to modify your behavior. Because that is exactly what orders of protection and cancer do: they force you to modify your behavior. Or there will be consequences.

If you had cancer, probably the first question you'd have is "What kind is it?"

The second question might be "What are my chances?"

The third question you'd probably have is "How can I increase my chances?"

The fourth: "Will it go away?"

And, inevitably, the final question would be: "How long do I have?"

And, like cancer, these are precisely the questions one should have when dealing with an order of protection.

Continue reading "#4: It's Just An Order Of Protection. No Big Deal, Right?" »

#3: What Is Your Retainer And How Much Do You Charge Per Hour?

October 5, 2011

Depositphotos_2046295_XS.jpgThis is perhaps the most asked question attorneys hear and it is the question they most hate to answer candidly. And it is probably one of the simplest to answer: it depends. Frankly, it is whatever you and the attorney can mutually agree on.

Retainers:

A retainer, after all, is nothing more than a contract. In the case of contracting with an attorney, it is a contract for services. Common sense would seem to dictate that the client would want to pay as little as possible to purchase as much of the attorney's services as possible. Conversely, the attorney would want to make as much money as possible while expending as little time as possible. Usually, there is a meeting of the minds, somewhere in the middle.


The client has a certain objective in mind and wants to know, at the very least:

1) the level of the attorney's competence in achieving this objective;

2) what the likelihood is of the objective being achieved; and

3) how much time and effort it will take to achieve this objective?


The attorney, on the other hand, needs to manage his or her time efficiently and wants to know, at the very least:

1) what kind of case is this;

2) which court/judge will the case come before; and

3) who is the attorney on the other side?


The retainer is normally determined by answering these six (6) questions, at the very least.

A quick rule of thumb is that retainers in legal matters tend to be very case, fact, and issue sensitive. Attorneys who specialize in real estate will tend to have retainers within a certain range, which will likely be quite different from attorneys who specialize in family court or tax matters. Most attorneys are experienced enough in a given field to have a rough idea as to how much time it is going to take to try to achieve a given objective. As such, most attorneys will try to negotiate a large retainer to cover the majority of the time and effort they expect to have to expend in achieving the objective.

Therefore, legal matters that entail a substantial investment of time and effort, such as litigation involving a significant volume of records, multiple court appearances, and a multi-day trial will likely require a much larger retainer than a legal matter requiring a single court appearance and few records.

And since the whole process is one of negotiation, either side is always free to walk away and find a new partner.

Continue reading "#3: What Is Your Retainer And How Much Do You Charge Per Hour?" »

#2: My Child's Attorney Is Useless! What Can I Do About It?

October 2, 2011

Depositphotos_1035726_XS.jpgThe short answer is simple: make your displeasure known, to both the attorney for the child AND the court itself, IMMEDIATELY! The best advice is the most obvious: the squeaky wheel gets the grease.

Call, write, text, and/or email the attorney for the child and timely return all of the attorney for the child's calls, letters, texts, and emails. And make sure to document ALL of your attempts to contact and/or meet with the attorney for the child. Nothing quite gets an attorney's attention like a letter sent by certified mail, return receipt requested!

If that still doesn't work, then you may have the option of hiring your own attorney to represent your child, or of having a family member do so, but it can be complicated if only because the law is not exactly clear on this issue.

Attorneys for the child (AFC or AFTC) are often appointed by supreme court, family court , and surrogate's court judges in actions or proceedings involving the welfare of children.

Sometimes these appointments are purely discretionary, as may be the case in some child support proceedings (Article 4, 5-A, and 5-B proceedings), paternity proceedings (Article 5 proceedings), custody proceedings (Article 6 proceedings), and family offense proceedings (Article 8 proceedings).

At other times, these appointments are constitutionally or statutorily mandated, as in juvenile delinquency (JD) proceedings (Article 3 proceedings), persons in need of supervision (PINS) proceedings (Article 7 proceedings), abuse and/or neglect proceedings (Article 10 proceedings), foster care proceedings (Article 10-A and 10-B proceedings), and appeals (Article 11 "proceedings").

And, sometimes, it's very hard to tell, especially in complicated custody proceedings or in paternity proceedings involving the thorny legal doctrines of equitable estoppel, presumption of legitimacy, and res judicata, among others. In such cases, it's always better for the court to err on the side of appointing an attorney for the child. Otherwise, there is always a good chance that such a matter could be overturned on appeal.

Furthermore, there is a current trend in the law for the courts to err on the side of appointing an attorney for the child even in less complicated custody proceedings, especially where the children in question are older and/or custody is highly disputed (as between multiple parties). See Albanese v. Lee, 272 A.D.2d 81, 707 N.Y.S.2d 171 (1st Dept., 2000), Betts v. Betts, 51 A.D.3d 699, 858 N.Y.S.2d 317 (2nd Dept., 2008), Amato v. Amato, 51 A.D.3d 1123, 857 N.Y.S.2d 778 (3rd Dept., 2008), and Arlene R. v. Wynette G., 37 A.D.3d 1044, 829 N.Y.S.2d 768 (4th Dept., 2007).

Continue reading "#2: My Child's Attorney Is Useless! What Can I Do About It?" »