November 2007 Archives

November 29, 2007

Let's Give Barry Bonds the Benefit of the Doubt

I'm glad that Barry is finally getting his trial. Let me start by saying I'm a Barry Bonds fan. Over the past couple of years I've hated watching Barry being booed in stadium after stadium, each filled to the brim with screaming fans hoping, in spite of the boos, to see him hit a home run. I'm therefore actually happy that Barry was finally indicted and is headed for a trial in which he can confront his accusers and establish his innocence in a forum dedicated to finding the truth. Or so I hope.

An acquittal on the charges against him won't necessarily restore Barry's good name. If he's acquitted, Barry's standing in the community--baseball and otherwise may be resurrected. I say "may" because of the obvious fact that acquittals don't necessarily change people's minds about what they think they know. Remember the O.J. double-murder trial? A jury acquitted O.J. pretty darn quick--and vast numbers of (mostly white) people decided that the jury was either reckless or stupid and continue to believe in his guilt.

What you think you know might not be how it really is. You may be quietly snickering at my reference to Barry's possible innocence. It's obvious, isn't it, that Barry lied to the grand jury when he said he didn't knowingly use steroids. I mean, look at the guy, all bulked up. Give me a break. Barry should cop a plea, do his time, and retire to a world marred only by a flood of asterisks accompanying his many marvelous records. Not so fast.

The case against Barry has not yet been challenged in a court of law. The case against Barry--largely built by the media--depends heavily on testimony and evidence from a 2002-2003 grand jury proceeding. In our system of justice, evidence introduced in a grand jury proceeding is supposed to remain secret, at least until an indictment issues. In this case, the testimony was leaked early. Journalists and sports pundits alike treated the testimony as the truth incarnate. Barry has been tried in the media and we, the public have adjudged him guilty --most unfairly.

Grand jury indictments are not evidence of guilt. We should never, ever, treat a grand jury indictment--or the testimony on which it's based--as evidence of guilt. In grand jury proceedings, the prosecutor orchestrates the testimony and evidence for the sole purpose of obtaining indictments. The witnesses who the prosecutor brings in to testify are not subjected to cross-examination. In fact, the suspect is not even present and there isn't even a defense. It's the prosecutor's show all the way, with predictable results: As the old saying goes, "the grand jury will indict a whole ham sandwich if given half a chance."

All our rules of fairness preclude pre-judging Barry. If we really believe in due process, in the right to confront our accusers, and in the presumption of innocence, we would refrain from judging Barry unless or until his guilt is proven "beyond a reasonable doubt " in a court of law. If we really believe in the Golden Rule--Do Unto Others As You Would Have Them Do Unto You--we would remember how it feels to be unjustly accused. We would say to our family, friends and associates, "Hey, wait until the trial, give Barry the benefit of the doubt."

Why we give some people the benefit of the doubt. All of this leads me to wonder why we give some people the benefit of the doubt and not others. It probably boils down to trust. We tend to trust people of our own ilk--our religion, our race, our family. But maybe we should strive to move beyond our genetic and cultural predispositions--just because it's the right thing to do. Barry is a baseball immortal, and in my mind that fact alone justifies giving him the benefit of the doubt. Plus, I know from my legal career just how unreliable un-confronted testimony and unexamined evidence can be. And I would like to believe I'm the kind of a person who will give just about anyone the benefit of the doubt since the opposite approach feels, well, uncivilized.

November 20, 2007

HALT Finds Fee Dispute Programs Not Making the Grade

This article is posted with permission from HALT, the nation's premiere law-reform advocacy organization.

National Study Reveals Few Checks on Skyrocketing Legal Fees

The nation's first comprehensive evaluation of the programs that resolve lawyer-client fee disputes revealed that these programs are mostly empty promises. To shine a light on the out-of-court systems designed to help clients conveniently settle bill conflicts with attorneys, HALT released its 2007 Fee Arbitration Report Card, ranking lawyer-client fee arbitration forums in all 50 states and the District of Columbia.

"The most pervasive complaint about lawyers is that their fees are too high for the work done," stated HALT Senior Counsel Suzanne M. Blonder. "But in evaluating the programs established to settle these disputes between clients and lawyers, our Report Card found a system plagued by an appalling pattern of biased procedures, insufficient resources, and little enforcement."

Of the 51 jurisdictions surveyed, 38 received grades below C. Three--New Hampshire, Vermont and West Virginia--flunked. Another eight, including some with large client populations, like Illinois and Ohio, received Incompletes because they do not offer statewide systems to settle lawyer-client bill conflicts. Taking top honors on the Report Card was the District of Columbia, followed closely by arbitration programs in Maine, New Jersey, New York, and California. But even those states only scored a B average.

HALT's Report Card graded fee arbitration systems in six categories: (1) whether lawyers are required to participate in binding arbitration at a client's request; (2) the ease of initiating arbitration; (3) the amount of state bar publicity of fee arbitration; (4) the program's reliance on non-lawyer arbitrators; (5) whether non-binding mediation is offered in addition to arbitration; and (6) how the system enforces awards.

While this is HALT's first report card on fee arbitration, its previous Lawyer Discipline Report Cards conducted studies of the lawyer discipline system that have led states to make critical improvements. When the group ranked Pennsylvania's lawyer discipline system dead last in 2002, the state's disciplinary board collaborated with HALT, raised its budget by 25 percent, and increased its ranking to the fifth best lawyer discipline system in the nation. HALT hopes its Fee Arbitration Report Card will galvanize state bars and courts to take similar strides so that the fee arbitration system lives up to its promise of conveniently and effectively resolving everyday fee disputes between lawyers and clients.

"By allowing lawyers to refuse participation in the fee arbitration process, hiding information from the public, placing roadblocks in front of consumers, and stacking arbitration panels with attorneys, fee arbitration programs across the country are routinely failing to provide a much-needed service to American legal consumers," stated Blonder. "Until there is meaningful reform, the legal profession has only itself to blame for the public consensus that lawyer fees are out of control and going unregulated."

A copy of each state's 2007 Fee Arbitration Report Card, a national comparison, and other consumer resources are available at

For daily information about legal fees, bookmark Rich Stim's amazing blog "What Price Justice?".

November 16, 2007

You Can Fight Your Foreclosure and Win

On November 15, 2007, an article in the New York Times, written by Gretchen Morgenson, reported that an Ohio Federal District Court refused to approve of 14 foreclosures because the company filing the cases couldn't prove that they were the owners of the mortgage. Since the federal courts won't hear cases brought by parties that have no interest in the case, the court dismissed the case without prejudice, meaning the company seeking the foreclosures could take their case to state court.

Mortgages today: Often no papertrail. The reason the company bringing the case couldn't prove ownership arises out of how mortgages are treated these days. After the mortgagor (the borrower) signs the paperwork, the mortgage is frequently sold (assigned) over the computer to a wall street investment firm --which proceeds to divide the mortgage into different "packages" which are resold as "securitized debt" investments. All of these sales and resales occur electronically. As a result, there isn't any papertrail.

Mortgage servicers often cannot prove the right to foreclosure. When the time comes to foreclose on a property, the foreclosure is brought by a "servicing company" (for instance, Countrywide). In roughly 40% of foreclosures, the servicing company is unable to produce a paper trail that ties it to the original mortgage owner. And without an adequate paper trail, the servicing company cannot prove that it has a right to pursue the foreclosure.

What the judge said. In the district court case, the judge pointed out that foreclosures typically go unchallenged. Here are the judge's words (in footnote 3) in response to the argument that the foreclosures should be allowed to continue:

"Plaintiff's, 'Judge, you just don't understand how things work,' argument reveals a condescending mindset and quasi-monopolistic system where financial institutions have traditionally controlled and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, and is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel."

Judicial foreclosures: Consider an "inadequate paperwork" challenge. In about half the states (mostly in the Eastern half of the U.S.), foreclosures must proceed through a state court (unlike this district court case, which is unusual). In those state court foreclosures (called "judicial foreclosures"), the homeowner should consider challenging the foreclosure on the basis of inadequate paperwork. Although challenges of this type will benefit from legal representation, it is also possible to assert your rights as a self-represented person and ask the judge to rule on the adequecy of the paperwork.

Non-judicial foreclosures: Tougher to challenge. In the other states--mostly in the West and including California -- foreclosures proceed outside of court ("non-judicial foreclosures"). In these cases, your only option for stopping the foreclosure is to proactively seek an injunction in state court. This typically involves filing a complaint, a motion for a preliminary and permanent injunction, and a temporary restraining order. This is difficult to do without a lawyer unless you can find the requisite forms online or in a law library, and you have the grit to take the law into your own jaw.

Whether you are dealing with a judicial (court) or non-judicial (outside of court) foreclosure, a good place to start if you plan to fight the foreclosure is Represent Yourself in Court, by Paul Bergman and Sara J. Berman-Barrett (Nolo).

November 14, 2007

HALT's Small Claims Court Best Practices

About the same time that Nolo got started in 1971, a couple of libertarians started a legal advocacy organization named Help Abolish Legal Tyranny, or HALT as it is now known. Thirty six years later, this organization continues its original mission of reigning in lawyers and expanding consumer access to the courts. This article about small claims court best practices is reprinted with permission from HALT. Other HALT articles will appear from time to time in this blog

HALT's Small Claims Court Best Practices

Designed to be used by ordinary people, small claims courts should be convenient, quick, accessible and affordable. The best of these courts are consumer friendly, use simplified procedures, require plain language (not legalese), and do not allow lawyers. HALT has identified a dozen best practices from around the country that can help small claims courts serve all of us better.

  • Increase small claims dollar limits, so that more minor disputes can be handled with simplified, inexpensive procedures.

  • Provide small claims mediation services to help people resolve their disputes without going to court at all.

  • Provide trained small claims advisors to guide people through the process.

  • Keep lawyers out of small claims court, so that it is a level playing field for all.

  • Keep collection agencies out of small claims, so these courts are not overwhelmed by institutional litigators but remain available to real people.

  • Limit the number of small claims cases one can file, so these courts are not monopolized and clogged by professional litigators.

  • Require actual service of legal papers to prevent default judgments when individuals don't even know they are being sued.

  • Provide simple legal forms and require plain English in the courtroom, so ordinary people can understand and use small claims procedures.

  • Establish weekend and evening Hours, so working people can use small claims courts.

  • Provide translation services for non-English speaking litigants, so all residents have access to small claims court.

  • Allow small claims judges to issue court orders in cases where money damages are not enough.

  • Establish streamlined small claims collection procedures that cut through the red tape and ensure prompt payment of judgments.

For more information about small claims best practices, pinpointing the benefits each practice has upon the system, and which states already serve their consumers better, visit And for more information about going to small claims court, read Nolo's excellent Everybody's Guide to Small Claims Court, by Attorney Ralph Warner.

November 9, 2007

When Credit Bureaus Report Debts Discharged in Bankruptcy: It Should be a Crime

An article entitled "Prisoners of Debt," by Robert Berner and Brian Grow, published in BusinessWeek, November 12, 2007, reports that the credit reporting bureaus and large creditors systematically violate the most important of all federal bankruptcy court orders; that is, you can't try to collect a debt that has been discharged in bankruptcy.

Debts are eternal. Thanks to the "great computer in the sky," debts don't go away anymore. They may grow old and be barred by statutes of limitation--laws that prevent stale claims from being litigated. They may have been paid up but not taken off the computer. And, they may have even been discharged in a federal bankruptcy proceeding. No matter. According to the BusinessWeek article, old and discharged debts alike are bundled together and sold to collection firms for pennies (or even parts of pennies) on the dollar. These collection firms then cast a wide net to collect these debts, often through economic intimidation or threats of ruining your credit.

Reporting bogus debts is extortion. Who among us hasn't suddenly received a bill in the mail from someone who we paid years ago, alleging that we still owe the debt plus umpteen dollars worth of interest and collection fees and that our credit will be ruined if we don't pay up. Often, bogus debts first come to light when people enter into transactions that require good credit right then and there--such as the purchase of a car or obtain a loan on a house. The bogus debts are paid off in a hurry to facilitate the transaction. Using the common meaning of the word, this is extortion pure and simple.

Credit bureaus willfully refuse to update reports. While this debt-collection-by-ambush can be avoided by incessant checking of one's credit report, many people have better things to do with their time and money, especially when they have no reason to think that anything is wrong. People who thought they got rid of their debts in bankruptcy are even more discombobulated, if that is possible, when bogus debts show up on their credit report. Even when the credit-reporting bureaus are informed about the bankruptcy, they often refuse to update the report to show that the debt has been discharged.

Remedy for victims of discharge violations. The remedy available to victims of federal bankruptcy discharge violators is to reopen the bankruptcy case and sue the violators to collect damages--and even fines if they can prove the errors were knowingly made. Needless to say, the companies defend on the basis that it was simple error. It can take some serious lawyering to overcome this defense.

Victims need a lawyer to recover for discharge violations. The main message I got from the BusinessWeek article was that, surprise surprise, you have to hire a lawyer to secure what rights you thought you had when you received your bankruptcy discharge. Most people who have recently gone through bankruptcy aren't in a position to pay a lawyer--even though attorneys' fees can be recovered if they are successful. In other words, even though you can do your own bankruptcy, you'll still have to pay a lawyer to get what's yours--a fresh start.

Intentional discharge violations should be crimes. If justice prevailed over big bucks, violations of the bankruptcy discharge would be crimes, punishable by truly large fines and even imprisonment of a company's CEO if a policy of reporting discharged debts were shown to exist--as is alleged in the BusinessWeek article. This type of behavior is, after all, garden-variety fraud. But, as we all know, financial theft isn't treated the same way as shoplifting. Wonder why? Anyway, let's not hold our breath on this one.

Procedures to invoke court remedies should be simplified. At the very least, the procedures for bringing the discharge violators into court to account for their debt collection practices can and should be greatly simplified to eliminate the need for a lawyer, at least in most cases. To ease the burden on the self-represented litigant, any reporting of a debt discharged in bankruptcy should be presumed to be willful, placing the burden on the credit reporting bureau to show that they made an innocent mistake. If the burden of proof is shifted in this manner, most credit bureaus will quickly act to correct their mistakes, innocent or not. In any event, a statutory fine of $1000 should be imposed on the bureau, innocent mistake or not.

For more information on this topic, check out a new article in the Nolopedia, "Time-Barred Debts: When Collectors Cannot Sue You For Unpaid Debts", as well Credit Repair, by Attorney Robin Leonard (Nolo), now in its 8th edition.

November 1, 2007

Self-Help Law Comes of Age

Once upon a time, in nineteenth century America, a perennial best seller was Every Man His Own Lawyer, by John G. Wells. By the time the twentieth century rolled around the lawyers had taken over and the very idea of handling one's own case in court was decried as a foolish and dangerous act -- as in "he who represents himself has a fool for a lawyer."

In 1971, Nolo Press published the first edition of How to Do Your Own Divorce in California, now in its 30th edition. After a rocky start, the Sacramento Bar Association put Nolo on the map by warning would-be consumers against using a book to do their divorce -- as in "doing your own divorce is like doing your own brain surgery."

Well, not quite. The attack alerted the public to the existence of an alternative to hiring a lawyer and the book flew off the shelves. Even then lawyers had priced themselves out of the vast market of working men and women, many charging in excess of $100 an hour .

While there were a few other self-help law publishing precedents -- How to Avoid Probate, by Norman Dacey comes to mind -- only Nolo Press in Berkeley, led by owners Ralph Warner and Toni Ihara, went on to create a publishing firm dedicated to self-help law. In my humble opinion, the Nolo Press imprint is one of the great law-related inventions of the twentieth century and it was--and is--a great privilege to be a part of it.

As the idea of self-help law grew through Nolo's publications on wide variety of legal subjects, so did the imaginations of court innovators. In the early 1990s, the Maricopa County Superior Court (think Phoenix) opened up the nation's first courthouse self-help law center, an entire floor of the courthouse dedicated to people handling their own family law cases. Over the next several years, court administrators and presiding judges from all over the country were invited to the Center to attend two- day trainings on how to create self-help law centers.

Today, the result is clear. Virtually all states now have self-help law centers in some or all of their courts. And an entire page of one website dedicated to lawyers and court officials who want to further the self-help law movement lists a dizzying variety of resources addressed to the needs of the self-represented litigant.

We can now see the day when courts will be as comfortable servicing self-represented litigants as they are servicing lawyers. While this will be a huge jump forward, there will still be the artifacts of the past that will have to be dealt with--such as unnecessarily complex rules of court and appellate practice, unauthorized practice of law barriers against skilled paralegal practice, and a court system that favors litigation over mediation and conciliation.