Tuesday, January 7, 2014

Is Your Lawyer Willing to Try Your Case?

That may seem like a dumb question.  Of course your lawyer should be willing to try your case.  But not all lawyers are willing to go to the mat for their client.  Don't get me wrong, many cases should be settled whether they are civil or criminal.  The facts aren't favorable to the client.  The law is favorable to the other party.  There is too much uncertainty in the outcome and a bad settlement is better than a worse verdict.

Nonetheless, it is my belief that when a client comes to me I look at the merits of a trial first.  In other words, can my client win this case at trial?  I don't initially look at it as can we settle this for a compromise.  Often after my analysis I will tell my client that the facts or the law may be against them and the case is worth settling.  But that is only after a careful analysis.  Even at that point I will tell the client that it is her case and her decision.  I simply make the recommendation.

Case in point, my client was charged with drunk driving.  The police report stated that the police were dispatched to a suspicious parked but running car properly parked on a residential street blaring music.  The officer observed my client behind the wheel (it was daytime) and my client was either unconscious or sleep.  The officer banged on the window for 5 to 10 min., shook the car and could not rouse my client.  The officer took his tactical baton and smashed the passenger window.  Still my client did not wake up.  Finally the officer started shaking my client at which point my client woke up.  The report stated that my client smelled of alcohol and admitted to drinking way too much alcohol and that he admitted that he had totally messed his life up.  Further, there was an ignition interlock device in the car and my client told the officer that he had his friend blow into the device so that the car could be started.  The officer saw a 12 pack of beer in the car.  My client did not do a field sobriety test because of a leg injury.  He refused the breathalyzer test.

When I saw these facts I immediately thought that the case was worth a trial.  The issues I saw were whether my client was in actual physical control of the vehicle (it was my theory of the case that my client was using the vehicle as a shelter and Maryland has recognized that it is better for public safety for a person to "sleep it off in the car" rather than drive away in the car.  It is a limited and narrowly defined exception but it does exist.)  Further there was limited evidence as to my client's intoxication.

On the day of the trial the prosecution offered a reasonable deal dropping the main charge which exposed my client to one year in jail to a charge which exposed my client to only 60 days in jail.  Even though it was a reasonable offer I was still looking at this case as a trial.  My client went to trial and was acquitted of all counts.

In Maryland you can somewhat look up a lawyers court performance.  Google Maryland Judiciary case search and put in the attorney's name.  That will pull up most if not all of the cases that the attorney has had in the past 20 years.  You can look and see whether the attorney tries the cases, as the cases dropped, gets acquittals or just pleads the client guilty.  You want a lawyer that can go to trial if necessary.

My Next Blog Will Be Following a Dog Story

Most of my practice is criminal defense, traffic defense and personal injury.  Nonetheless I do consider myself to be a general practitioner of the law.  Having a general practice by definition means getting involved in unusual fact patterns.

In this particular case my client had acquired a puppy.  She had purchased a puppy, an identification chip was inserted in the puppy, she took the puppy to the vet and was by all rights the proper legal owner of the dog.

She was a new owner of the puppy.  Puppies may be sweet but they really don't have discipline or develop ownership ties.  For whatever reason the puppy wandered away from the home.  My client was incredibly distraught at the loss of the dog and made great efforts to find her puppy.

The dog had the identification chip.  Somebody found the dog and took the dog to the vet.  The vet apparently scanned the dog found the chip and contacted the facility which had inserted the tip.  The facility was in Colorado.  That facility in turn contacted the client who contacted the vet.  The vet asserted privacy rights over the person who brought in the puppy.  In other words, the vet would not tell the owner who brought in the dog.

At this point my client came to me.  Maryland has a fairly broad and comprehensive theft statute.  One possible form of theft is recovering lost property and refusing to return it to the rightful owner.  Maryland considers that theft.

I telephoned the vet and they revealed that they knew the name of the people who brought in the dog but they would not release that name to me citing privacy concerns.  I did not threaten the veterinarian with claims of conspiracy to commit theft.  Rather I worked on the sympathies and advised that the owner was very much interested in getting back the dog.  I found out from the vet that there was a lawyer who is representing the people who found the dog.

I telephoned the lawyer and fully expected not to receive any information.  Frankly I would've done the same thing.  The lawyer has an ethical obligation not to divulge any of his clients secrets and one of the secrets was the identity of the client.  Nonetheless I worked on the lawyer's sympathies.  I did discuss with him later my theory of theft for refusal to return the puppy.  I was hoping that the lawyer might contact his client and that the client would contact me.

Finally I contacted the police in the hope that they would begin a theft investigation and bring legal process so that the veterinarian might be compelled to reveal the people that brought in the dog.

To my client's delight the fact that I was stirring the potcause the people who found the dog to return the dog.

From being hired to getting the dog back  four days or less and three hours of work or less.

It's strange work that somebody has to do it.