Q: A law degree is known as a juris doctor. Is it appropriate, then, to call a lawyer, “Doctor?”
A: This is a funny little question that polemics often engage in, it would seem, for shear sport. Those two little letters preceding one’s name bespeaks authority, intellect, and honor.
Lawyers get gypped on that front, I suppose. After all, attorneys put in three years to get a J.D., and follow that up with one of the hardest, quite masochistic, tests known to mankind. What is more, the very degree that we attorneys possess suggests that it would be appropriate to call us, “Dr. Attorney.” After all, M.D. stands for “Medical Doctor” and we call our physicians doctor, do we not?
Surprisingly, the reason why attorneys do not bear this titular prefix is rooted in a notion professional humility.
Dear Sidebar, Please tells us you are starting to tell a joke. Lawyers humble? Seriously, what’s the punch line? Signed, The Society for Protection of the Falsely Humble.
It is no joke. In the earlier part of the twentieth century, the American Bar Association (ABA) considered passing a resolution that would permit us to be titled, “doctor.” But, the committee exploring the idea determined that such a reference would be inappropriate, misleading, and grounded only in “self-laudation.” Still, about a year later, that same ABA committee determined it might be ok, provided the attorney was not using the title to mislead.
Dear Sidebar, We knew it! Signed, the SPFH again.
And that is the crux of the problem. When someone is referred to as “doctor,” generally we do ascribe a certain level of intellectualism or heightened professionalism to the person (whether they deserve it or not). Medical doctors are specialists in health. Ph.D.’s are purported masters within a very narrow realm of academia. Doctor’s of Theology are respected as experts in all things God. But, a juris doctor really is just an attorney.
Now that does not imply that attorneys are lacking in academic ability. It just means that the profession of law is much more a practical profession than it is an academic one. We are counselors, advisors, and advocators, for the most part. What we are “expert” in is the law and how it is to be applied. Because the law is so general, even our title must indicate our professional diversity. To call us doctors –because of cultural norms, historical tradition, or pure arrogance – could be misleading and detract from our representation.
While the title, “doctor” is a rather generic one in professional or academic circles, only one profession is uniquely and ubiquitously known as, “Esquire.” And, yes, I am quite proud of that.
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
Friday, December 29, 2006
Wednesday, December 20, 2006
You Couldn't Pay Me Enough
Q: Is a lawyer’s fee limited to a percentage of the ultimate resolution he achieves for his client, or is it limited just to the hours that he actually works on the case?
A: This is kind of like asking if an orthodontist is paid just for the hardware he puts in your mouth, or the skill and expertise required to make sure your teeth are straight. In other words, lawyers – like every other professional – is in business to make a living. To support themselves, attorneys need to make money.
Sure, there is a certain satisfaction to doing one’s work. There is fulfillment in winning a case or settling a dispute out of court. Some attorneys even find excitement just in the arguing. Other lawyers would rather work for no money and crusade against injustice. But, I would venture to guess that most attorneys are attorneys because (a) they like most of the work they do and (b) it pays the bills.
Lawyers are usually paid in a couple of different ways. The “contingency fee arrangement” suggests that the attorney will take the client’s case and front all the expenses until the case is resolved. In exchange for this, the client agrees to reimburse the attorney out of the settlement, if any, that the he is able to negotiate for the client. That is, the client reimburses those actual costs (e.g., filing fees, postage, travel, overhead, etc.) that the attorney fronted, plus a percentage (traditionally, one-third of the total settlement).
If a contingency is impractical or undesirable, an attorney may agree to be paid based upon the hours he actually works. In such a situation, an attorney becomes an hourly worker, though he is hardly making minimum wage. Most attorneys in private practice today are able to charge between $100 and $300 per hour that they work. Thus, if an attorney billing at an hourly rate works one hour for a client, he will make $100. If that same attorney does some work for a client, but it only takes one-half of an hour, then the attorney only makes $50 for that effort. Once the attorney concludes his representation, the attorney will then bill the client for the total hours he worked on the case.
Interestingly, these two most widely used types of fees are most often used by opposite sides of the bar. Attorneys that usually represent plaintiffs will more often utilize a contingency fee arrangement. Working in that relationship, the attorney does not get paid unless he achieves a resolution for the client. The benefit here is that the attorney will, in theory, work harder, since his paycheck is in direct proportion to the client’s.
On the other hand, defense attorneys usually bill by the hour. Hourly arrangements promote more work for defense attorneys who are working to avoid having their client pay anything (other than the attorney’s bill) in a lawsuit. Billing by the hour encourages the defense attorney to be very thorough in his work.
Of course the natural reaction to all of this is to suggest that attorneys are greedy and make too much money. However, I urge you to look at what you get for your money. Attorneys solve tremendously complex issues and are, in some regards, why we have put to rest the notion of settling disputes with pistols at ten paces.
Plus, attorney fees are quite reasonable, if you really think about it. After all, when was the last time your orthodontist, dentist, or doctor offered to forgo payment unless you got paid for wearing braces, filling a cavity, or drawing blood?
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
A: This is kind of like asking if an orthodontist is paid just for the hardware he puts in your mouth, or the skill and expertise required to make sure your teeth are straight. In other words, lawyers – like every other professional – is in business to make a living. To support themselves, attorneys need to make money.
Sure, there is a certain satisfaction to doing one’s work. There is fulfillment in winning a case or settling a dispute out of court. Some attorneys even find excitement just in the arguing. Other lawyers would rather work for no money and crusade against injustice. But, I would venture to guess that most attorneys are attorneys because (a) they like most of the work they do and (b) it pays the bills.
Lawyers are usually paid in a couple of different ways. The “contingency fee arrangement” suggests that the attorney will take the client’s case and front all the expenses until the case is resolved. In exchange for this, the client agrees to reimburse the attorney out of the settlement, if any, that the he is able to negotiate for the client. That is, the client reimburses those actual costs (e.g., filing fees, postage, travel, overhead, etc.) that the attorney fronted, plus a percentage (traditionally, one-third of the total settlement).
If a contingency is impractical or undesirable, an attorney may agree to be paid based upon the hours he actually works. In such a situation, an attorney becomes an hourly worker, though he is hardly making minimum wage. Most attorneys in private practice today are able to charge between $100 and $300 per hour that they work. Thus, if an attorney billing at an hourly rate works one hour for a client, he will make $100. If that same attorney does some work for a client, but it only takes one-half of an hour, then the attorney only makes $50 for that effort. Once the attorney concludes his representation, the attorney will then bill the client for the total hours he worked on the case.
Interestingly, these two most widely used types of fees are most often used by opposite sides of the bar. Attorneys that usually represent plaintiffs will more often utilize a contingency fee arrangement. Working in that relationship, the attorney does not get paid unless he achieves a resolution for the client. The benefit here is that the attorney will, in theory, work harder, since his paycheck is in direct proportion to the client’s.
On the other hand, defense attorneys usually bill by the hour. Hourly arrangements promote more work for defense attorneys who are working to avoid having their client pay anything (other than the attorney’s bill) in a lawsuit. Billing by the hour encourages the defense attorney to be very thorough in his work.
Of course the natural reaction to all of this is to suggest that attorneys are greedy and make too much money. However, I urge you to look at what you get for your money. Attorneys solve tremendously complex issues and are, in some regards, why we have put to rest the notion of settling disputes with pistols at ten paces.
Plus, attorney fees are quite reasonable, if you really think about it. After all, when was the last time your orthodontist, dentist, or doctor offered to forgo payment unless you got paid for wearing braces, filling a cavity, or drawing blood?
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
Monday, December 11, 2006
Did O.J. Really Do It?
Q: How can O.J. be “not-guilty” in a criminal trial, but found “liable” in a civil trial?
A: Believe it or not, it was a “Calvin and Hobbes” cartoon that I saw earlier this week that reminded me to answer this question. Precocious Calvin is at his desk penning his annual Christmas letter to Santa. In the first frame, Calvin begins, “Dear Santa, This year, please bear in mind that I should be presumed innocent until proven guilty.” He continues in the next bar, “Also, I would encourage you to interpret ‘reasonable doubt’ as broadly as possible.” Tossing the crumpled letter over his shoulder, Calvin ends the comic by remarking, “That’s probably a bad way to start.” Indeed.
Calvin’s colloquy with Santa reminded me of O.J. Simpson because of the burden of proof he hoped that Santa would interpret as “broadly as possible” in determining whether Calvin was good or bad this past year. Likewise, when jurors were faced with determining whether “The Juice” had been naughty or nice, they unwittingly had to undergo a similar analysis to Calvin’s request.
Trials are all about proof. We are al probably quite familiar that in a criminal trial, the prosecutor must prove a case, “beyond a reasonable doubt.” A doubt is deemed “reasonable” if it is of “such convincing character that a reasonable person would not hesitate to rely and act upon it,” or so says the Supreme Court of Appeals of WV. Were we to assign a percentage to this level of proof, it would be pretty close to 99%. On the other hand, there is proof by a “preponderance of the evidence” meaning that the evidence proves that the given action is “more likely so than not so.” This means that to overcome this standard, in a civil (non-criminal) trial, proof of 50.00000001% is sufficient.
This is how O.J. can be found “not-guilty” in a criminal case, though “liable,” or “guilty,” in a civil trial. In the former, the jury apparently found that they had to acquit because the glove did not fit. That is, the prosecutors failed to remove that “reasonable doubt.” Like it or not, the jurors followed Calvin’s lead and interpreted “reasonable doubt” as broadly as possible.
However, in Orenthal’s civil case, the plaintiffs only needed to prove that the glove more likely fit than did not fit, so to speak. If the plaintiff’s evidence said that it was 50.00000001% likely that O.J. did it, than he was liable.
SIDEBAR: Let’s be sure of one thing – just because a criminal defendant is deemed, “not-guilty” does not mean that he or she is actually “innocent.” O.J. is a good example: does anyone really think he was “innocent?” IF he did it?
These levels or proof are quite important. We demand that proof “beyond a reasonable doubt” be provided because we are talking about someone’s life in a criminal trial. But, in civil cases, the proof can be less because we are merely speaking of money.
Our constitution guarantees us that criminals are presumed innocent, until any reasonable doubt of their innocence is removed. Were it any other way, I suppose Calvin would be right, it would probably be, “a bad way to start.”
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
A: Believe it or not, it was a “Calvin and Hobbes” cartoon that I saw earlier this week that reminded me to answer this question. Precocious Calvin is at his desk penning his annual Christmas letter to Santa. In the first frame, Calvin begins, “Dear Santa, This year, please bear in mind that I should be presumed innocent until proven guilty.” He continues in the next bar, “Also, I would encourage you to interpret ‘reasonable doubt’ as broadly as possible.” Tossing the crumpled letter over his shoulder, Calvin ends the comic by remarking, “That’s probably a bad way to start.” Indeed.
Calvin’s colloquy with Santa reminded me of O.J. Simpson because of the burden of proof he hoped that Santa would interpret as “broadly as possible” in determining whether Calvin was good or bad this past year. Likewise, when jurors were faced with determining whether “The Juice” had been naughty or nice, they unwittingly had to undergo a similar analysis to Calvin’s request.
Trials are all about proof. We are al probably quite familiar that in a criminal trial, the prosecutor must prove a case, “beyond a reasonable doubt.” A doubt is deemed “reasonable” if it is of “such convincing character that a reasonable person would not hesitate to rely and act upon it,” or so says the Supreme Court of Appeals of WV. Were we to assign a percentage to this level of proof, it would be pretty close to 99%. On the other hand, there is proof by a “preponderance of the evidence” meaning that the evidence proves that the given action is “more likely so than not so.” This means that to overcome this standard, in a civil (non-criminal) trial, proof of 50.00000001% is sufficient.
This is how O.J. can be found “not-guilty” in a criminal case, though “liable,” or “guilty,” in a civil trial. In the former, the jury apparently found that they had to acquit because the glove did not fit. That is, the prosecutors failed to remove that “reasonable doubt.” Like it or not, the jurors followed Calvin’s lead and interpreted “reasonable doubt” as broadly as possible.
However, in Orenthal’s civil case, the plaintiffs only needed to prove that the glove more likely fit than did not fit, so to speak. If the plaintiff’s evidence said that it was 50.00000001% likely that O.J. did it, than he was liable.
SIDEBAR: Let’s be sure of one thing – just because a criminal defendant is deemed, “not-guilty” does not mean that he or she is actually “innocent.” O.J. is a good example: does anyone really think he was “innocent?” IF he did it?
These levels or proof are quite important. We demand that proof “beyond a reasonable doubt” be provided because we are talking about someone’s life in a criminal trial. But, in civil cases, the proof can be less because we are merely speaking of money.
Our constitution guarantees us that criminals are presumed innocent, until any reasonable doubt of their innocence is removed. Were it any other way, I suppose Calvin would be right, it would probably be, “a bad way to start.”
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
Monday, December 04, 2006
Quick Hits
Many of the questions I receive from my fine readers provide ample fodder for my weekly articles. However, I have come to notice that some questions just need a quick answer. Some of the questions can be entirely answered just that quickly. Some of the questions provide great background material to the rest of our discussions. Others do not. So, I thought I would take time this week to just tick off a couple of quickly answered questions that I have accumulated. Enjoy.
Q: What is a “scofflaw”?
A: Quite literally, a scofflaw is someone who “scoffs” at the “law.” Usually it is a term (not widely used) that describes the person who, recognizing the law, gives it no regard. For instance, a scofflaw would be the guy who blows up an inflatable toy resembling a person and sticks that person in the passenger seat in order to qualify for the carpool lane. Perhaps someone should be scoffing at him.
Q: What is the difference between “libel” and “slander”?
A: Libel and slander each fall under the broader category of defamation. When someone defames another, usually something derogatory and untrue is said of the other, published to a third party, and with the specific intent of causing that other person harm. This is much more than playful joking. “Libel” refers to that category of defamation that is done by the written word. “Slander” is defamation done by the spoken word. Hence, I could libel someone in this column, but I could never slander that person here.
Q: What is a “tort”?
A: Lest we be confused: A “torte” is a delicious cake made up of many delightfully different layers. But, a “tort” (sans “e”) is a civil wrong for which the law provides a remedy. The latter term encompasses many causes of action, but is broadly described as that area of the law that does not deal with crimes, contracts, or real estate (although there is some overlap). Most can understand “torts” as simply the civil side of a court – though that is an incomplete definition, indeed.
Q: When one commits a “tort,” are their actions “tortuous” or “tortious”?
A: Attorneys: Listen up! I have read enough briefs written by attorneys to know that even the most senior partners often confuse these terms. To have engaged in “tortious” conduct means that the person has committed a “tort.” That is a far cry different from “tortuous” conduct which denotes that the actor has engaged in the act of torture. You can see why using precise terms would be important by the following sentence: “The Defendant tortuously/tortiously touched the Plaintiff.” Following the definitions, if the Defendant “tortuously” touched the Plaintiff, the Plaintiff has been tortured by the hands of the Plaintiff. If touched only “tortiously,” the Plaintiff has sustained only a civil battery (an unwanted touching). Big difference!
Q: Why do attorneys always use yellow legal pads?
A: Because they do not make pink medical pads and, if they did, using them just seems wrong.
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
Q: What is a “scofflaw”?
A: Quite literally, a scofflaw is someone who “scoffs” at the “law.” Usually it is a term (not widely used) that describes the person who, recognizing the law, gives it no regard. For instance, a scofflaw would be the guy who blows up an inflatable toy resembling a person and sticks that person in the passenger seat in order to qualify for the carpool lane. Perhaps someone should be scoffing at him.
Q: What is the difference between “libel” and “slander”?
A: Libel and slander each fall under the broader category of defamation. When someone defames another, usually something derogatory and untrue is said of the other, published to a third party, and with the specific intent of causing that other person harm. This is much more than playful joking. “Libel” refers to that category of defamation that is done by the written word. “Slander” is defamation done by the spoken word. Hence, I could libel someone in this column, but I could never slander that person here.
Q: What is a “tort”?
A: Lest we be confused: A “torte” is a delicious cake made up of many delightfully different layers. But, a “tort” (sans “e”) is a civil wrong for which the law provides a remedy. The latter term encompasses many causes of action, but is broadly described as that area of the law that does not deal with crimes, contracts, or real estate (although there is some overlap). Most can understand “torts” as simply the civil side of a court – though that is an incomplete definition, indeed.
Q: When one commits a “tort,” are their actions “tortuous” or “tortious”?
A: Attorneys: Listen up! I have read enough briefs written by attorneys to know that even the most senior partners often confuse these terms. To have engaged in “tortious” conduct means that the person has committed a “tort.” That is a far cry different from “tortuous” conduct which denotes that the actor has engaged in the act of torture. You can see why using precise terms would be important by the following sentence: “The Defendant tortuously/tortiously touched the Plaintiff.” Following the definitions, if the Defendant “tortuously” touched the Plaintiff, the Plaintiff has been tortured by the hands of the Plaintiff. If touched only “tortiously,” the Plaintiff has sustained only a civil battery (an unwanted touching). Big difference!
Q: Why do attorneys always use yellow legal pads?
A: Because they do not make pink medical pads and, if they did, using them just seems wrong.
Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.
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