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Tag: legal practice

What should I tell my lawyer who says that a motion to dismiss is not real?

What should I say to my lawyer who told me that a motion to dismiss isn’t really a thing so we cannot file one?

It may be that a motion to dismiss is in fact not possible (not permitted by the rules under the circumstances of your case) or not wise under the circumstances (possible, but a bad idea), even though you believe otherwise. a lot of people are familiar with certain legal jargon without knowing what it means, and they often throw it around ignorantly and inaccurately. 

I can’t tell you how many times clients have come to me believing they have rights to do this or rights not to do that, only to find out that their understanding was erroneous. 

A few examples: thinking you have a right to certain documents (or every document known to man) under the “Freedom of Information Act”, believing you don’t have to answer provide requested documents or answer certain questions in a deposition or at trial if they claim that the information sought from them is “private” or “confidential,” believing that because they know the truth/right thing to do, the court must agree with them. 

If you have an idea and your lawyer shoots it down without you understanding why, don’t be afraid to ask your lawyer to explain it to you. If your lawyer can’t do that, your idea may not be so bad (but instead your lawyer may not be up to the task). 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-should-I-say-to-my-lawyer-who-told-me-that-a-motion-to-dismiss-isnt-really-a-thing-so-we-cannot-file-one/answer/Eric-Johnson-311 

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Do lawyers approach people in high profile cases to offer their services?

Do lawyers typically approach people who will have high profile cases, like Kyle Rittenhouse, to offer their services?

Some do. Some do because they are allowed by the ethical rules of their jurisdiction to do so. Some do regardless of whether the ethical rules of their jurisdiction to do so (“ambulance chasers”). 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Do-lawyers-typically-approach-people-who-will-have-high-profile-cases-like-Kyle-Rittenhouse-to-offer-their-services/answer/Eric-Johnson-311  

 

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Law from a legal assistant’s point of view, week 13: Thoughts on ADR

By Quinton Lister, Legal Assistant

Part of what has drawn me to my current position as a legal assistant to a divorce attorney is that I wanted to learn more about Alternative Dispute Resolution (ADR). In very basic terms, ADR refers to the other methods of solving disputes between parties outside of litigation in court.  

But ADR is clearly not an “alternative” when you have no choice. ADR is often peddled as a cheaper, faster, less stressful cure-all, but that’s deceptive. I’ll discuss this more later in this post.  

One form of ADR is mediation, which in today’s world probably everyone has at least heard of, and most people probably have some idea of how mediation works. In mediation the disputing parties privately discuss their issues and try to reach an agreement with a neutral third party acting as a moderator but not a decision maker.  

Each divorce case in Utah is required to go to mediation before the matter can go to trial. I figured that I would get a chance to experience what mediation is like by working at a divorce and family law firm. I was right. The mediations I have attended were an educational experience. Each party was fairly civil and the mediator’s job was mostly keeping the discussion on track to cover each topic in dispute. The parties’ respective lawyers were also instrumental in getting the terms of a final settlement nailed down. 

Family law in Utah has a strong connection to ADR, particularly mediation. Some might even say the connection to mediation is too strong.  

Because mediation is mandatory in all divorce cases before you can go to trial (if you go to trial), the power and value of mediation has been somewhat diluted. Mediation works best when disputing people agree that trying to work out their differences is preferable to fighting out those differences in court. Requiring people who don’t want to negotiate with each other to negotiate will feel forced because it is forced. People come away from mediation with a bad taste in their mouths when they are made to negotiate with a party who hostile or deceptive, or both. Mandatory mediation can feel like just another hoop to jump through on the way to the courthouse for trial. I think it makes sense that just because mediation is possible that does not it should be mandatory.  

But one of the reasons that mediation is so appealing to people going through a divorce or other family law dispute is because going to court is so appalling. Mediation, however, doesn’t work with people who aren’t able or aren’t willing to compromise. And there’s nothing that requires you to compromise, especially if you don’t feel it’s fair for you to compromise, when you know or at least strongly believe that the law is on your side. is there a way to fight for what’s right without getting caught up in all the expense and bureaucratic red tape of the court system? Yes, there is. This is where arbitration comes in.  

Arbitration is a private forum for arguing and deciding disputes, where the two parties present their case to a neutral third party, typically a retired judge or lawyer, who then decides the case for them and issues an order that is as binding legally binding upon the parties as a court order from a judge. So if you and the other party don’t trust each other to reach a resolution in mediation, and you both have the good sense to know that going to trial in court is going in soon too far too much time, money, and effort, yet you still need your dispute resolved, arbitration maybe just the thing you both need. 

I still believe ADR is a topic worthy of further investigation and development. I want to continue to learn more about this topic, better understand the advantages and disadvantages of ADR, and make ADR work. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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Law from a legal assistant’s point of view, week 11: Something for nothing?

By Quinton Lister, Legal Assistant

Giving without expectation is one of the hardest things to do in this life. I often wonder in our capitalistic society why it is so important to do things for others with the expectation of payment.  

Then I became a legal assistant for a divorce attorney. 

I am amazed at how many people feel entitled to free legal services. Of course, it is true that not everyone who wants something for free is taking advantage of you, but in the case of legal practices, it is often the case. 

I am now beginning to realize that expecting payment for goods and services is not greed. It also serves as a check against abusive behavior. The amount of phone calls and emails I get from other people who are upset and demanding has shown me why it is important not to just do things for free “too much”. Some people have no problem taking advantage of others by milking others for free stuff and free services. Worse, some people who know they can get something for free abuse the privilege and try to ride that gravy train as far as it will take them. Worse, some people use the free stuff and free services to do harm.  

That’s not to say I should never be altruistic. Just the opposite. We all face times when we need help because we can’t help ourselves. But there’s a difference between a hand up and a handout.  

I can see the importance of providing protection against those who would abuse others’ compassion and generosity. Payment can be a form of protection against parasites. An honest day’s pay for an honest day’s work does a lot to ward off freeloaders. Paying for what goods and services are worth helps ensure they aren’t wasted and go where they are needed or wanted most. Paying helps us clearly differentiate between needs and wants, requirements and mere conveniences.   

Utah Family Law, LC | divorceutah.com | 801-466-9277 

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Law from a legal assistant’s point of view, week 9: Hail, Clarity!

By Quinton Lister, Legal assistant

Before I was a legal assistant, I was an undergraduate in Philosophy at Brigham Young University. One of my logic professors said something to me that I feel is important in both philosophy and in law. In order to avoid logical fallacies in any argument, you need to define your terms. So (and I am paraphrasing this a little bit), my logic professor stated, “It’s not about what you say, it is about what you mean by what you say”. The point being that you must be rigorous in your definitions of the terms you are using. For instance, in an ethical debate one must be clear on what is meant by the terms “good” or “bad” or “moral”. If you do not know what is meant by what you say, it is hard to defend what you say. 

This applies in legal communications directly because I am finding that there is so much jargon and terms of art used in the practice of law. I need to grow accustomed to the fact that at this point, when I am a legal assistant with (so far) no formal legal education, I can’t assume that I know what is meant by what is said or written. My boss, being an experienced attorney, often can call me out when I do not know what I am saying. This has been fascinating because I am not always aware of my incompetence. So, if I cannot define or understand a term or a principle, I am learning that I just need to say, “I don’t know”. This is challenging because I am not accustomed to admitting I do not know something because it feels like a cardinal sin. From kindergarten to college we are rewarded for “knowing the answers” and punished when we don’t. All through my growing up years that held true everywhere else too: not just school, but church, extra-curricular activities, my part-time job as a teen, etc.), but now, at least in the legal profession (though I have reason to believe it’s the same in other professions), it is not about looking or sounding informed, but actually knowing how to solve all or even just part of a given problem. And you can’t solve the problem if you don’t know what it is or how to describe it fully and accurately to other legal professionals and to your judge.  

I need to know what I mean by what I say and ensure those with whom I am communicating know it too. To do that, whether I am writing a simple email or an appellate brief to file with the court, successful, persuasive communication starts with learning to write and speak clearly.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

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In what ways do pro-bono cases help attorneys and law firms?

There are some great answers in this thread already. I hope that adding my two cents’ worth is informative too.

I am a divorce and family lawyer. With rare exception (too rare to make pro bono something I do not find personally worthwhile). I find pro bono cases to be mostly of no personal or professional benefit to me at all, but pro bono was never intended to benefit lawyers but to be “for the public good”. That’s literally what pro bono means. The fully stated term is “pro bono publico” which is Latin for “for the public good.”

Lawyers are expected provide pro bono publico assistance as part of their professional obligations. Many provide none, others provide such services in the form of providing answers to legal questions (which is relatively easy), as opposed to providing free legal representation. Personally, I cannot afford to provide free legal representation without it making me miserable. Why?

Most (most, not all) pro bono divorce and family law clients are, in my experience, among the most self-entitled, complaining, bothersome, unrealistic, unreasonable clients. This is one reason why pro bono work is not work I enjoy.

Even the good pro bono clients’ cases often require significant amounts of attorney work, and the practice of law (especially divorce and family law) is not as lucrative many believe. It is impossible to predict how long a law suit will last and what it will require from the lawyer. Unlike providing a hungry person with a meal, pro bono legal services can extract more from a lawyer than he/she ever imagined or is able to give. This is why I have found it almost impossible to provide pro bono divorce and family law services. This is another reason why pro bono work is not work I enjoy.

In my experience, most decent people who are lawyers understand the noble reasons for pro bono publico assistance, but most don’t like pro bono work (for the reasons I have stated above) and prefer to avoid it or to find the most convenient ways to provide pro bono help. Myself included. I’m certainly not proud of this fact, but at the same time I’m not going to hang my head in shame. This attitude doesn’t make such lawyers bad people; giving away anything of value free is hard at least, and can be crippling for lawyers at worst.

That stated, it is easier than ever to handle legal matters without an attorney, and it is get getting easier every day (this is one of many reasons why the practice of law is less lucrative than it used to be and why it’s harder for lawyer to provide free services). The Internet has made knowledge that used to be known and used by the few who learned it in law school and made it available to everyone free of charge. Both the Internet and artificial intelligence are enabling scrappy entrepreneurs to develop inexpensive ways to enable non-lawyers to prepare legal documents of a quality that was unimaginable a generation or two ago.

One of the best ways to make pro bono help appealing to a lawyer is for those seeking pro bono help to educate themselves about the workings and the limitations of the legal system, to do as much the work they can do for themselves (see above), to seek help for truly serious matters where the client is being wronged (not trying to avoid responsibility for a legitimate speeding ticket, for example), to be understanding of the limits of an attorney’s ability to provide pro bono services, and to take a realistic view of the merits of one’s case, so that the lawyer is utilized if and as truly necessary and not treated as a slave to exploit and to whose labor the pro bono client is entitled, and to be appreciative of the volunteer lawyer’s efforts on the client’s behalf.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/In-what-ways-do-pro-bono-cases-help-attorneys-and-law-firms/answer/Eric-Johnson-311?prompt_topic_bio=1

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Law from a legal assistant’s point of view, week 2: Pile higher and deeper

Last week I reported that I am a complete neophyte when it comes to the practice of law (this is my second week as a legal assistant), and that remains true this week. There have been several surprises as to the ins and outs of the legal system. One of the most surprising to me is the amount of paperwork that goes into a legal proceeding.

The sheer number of papers that must be piled up (and continue to pile up) in the record rooms of courts, law offices, and the storage space on the servers is staggering.

My boss asked me to document my observations during this time (one in a lifetime time) while I see with “fresh eyes”, and it appears to me that the amount of red tape and hoop jumping required is more a matter of accreted conventions than necessity. Many documents or processes that may have had a purpose in the past have outlived their usefulness.

Clearly, there is a need to record and document certain things in almost any important human undertaking. I also concede I don’t know how everything works or why, so there may be reasons for the I don’t understand. But as I am experiencing it, the amount of paperwork seems inexplicably and unnecessarily slow, duplicative, and burdensome (and as a result, unnecessarily expensive).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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