The Waiting Game

Q: Why does it take so long to get from arraignment to trial?

A: When last we left our alleged criminal, he had just posted bail. We assume, then, that he is out and about under a variety of conditions. Meanwhile, attorneys are busy prepping the case for trial.

Quick review: Our alleged criminal was arrested, indicted by a large and in charge grand jury, which produced an indictment, that invited him to an arraignment, where he entered a plea, and the court secured his continued participation by attaching him to a hefty bond. The next step, you would think, would be the trial. But, in a weird way, you would be wrong. The next step is actually what we call the “pre-trial period.”

Dear Sidebar, You went to four years of college, three years of law school, studied for and passed the bar exam all to prepare you to come up with a fancy term like “pre-trial period?” Isn’t there a Latin phrase that you could use to make us actually think you are smart? Signed, the Anti-Hyphen Defamation League.

Dear Anti-Hyphenites, Absolutimus notus. Signed, Sidebar.

The pre-trial period is simply a period of time for both side of the case to investigate the charges, develop trial theories, make pre-trial motions, and, generally, get to know the ins-and-outs of the case. It is a period of time that can be quite lengthy. For instance, if the crime requires collaboration with the scientific community (e.g. coroner, crime lab, forensics, DNA, handwriting expert, etc.), those tests or experiments may take some time to complete – especially if there is a backlog of cases preceding yours.

Actually, criminal trials usually come to trial quite quickly. Most criminal cases go from arraignment to trial (or plea agreement) in under a year, at most, two years. Civil cases are usually much longer, going from complaint to trial (or settlement) anywhere from one to ten years.

The answer to why criminal cases go to trial more quickly is found in the Sixth Amendment of our U.S. Constitution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..” Although, I am not sure any “accused” is going to actually “enjoy” the speedy trial, we understand what is meant. The further and further you get away from the alleged crime, the more witnesses disappear, memories fade, and evidence becomes unavailable. In short, the case becomes much more difficult to try and defend.

In West Virginia, our Constitution terms “speedy trial” as one conducted “without unreasonable delay.” What is more, the Legislature has passed a law that entitles a criminal defendant to have his or her case tried within three terms of court following the indictment. Since, in the calendar year, there are three terms of court in West Virginia, this means that a criminal defendant has the right to have his or her case tried one year from being indicted. Of course, there may be strategic reasons for the criminal defendant to continue or delay the start of a trial beyond the three-term rule. Nonetheless, a speedy or un-delayed trial, is a constitutional and legislative right for the criminal defendant.

In reality, the answer to the question requires the asking of another question: why does it not take longer? Considering the amount of investigation, research, and planning that is required, a year or two is not so bad.

Next week, we begin the trial.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Sometimes Law Not Enough

Q: Will more gun laws prevent another Virginia Tech tragedy?

A: Before beginning to offer critical comment and opinion on the thought of gun laws, Sidebar wishes convey its deepest condolences to the families of the victims in Blacksburg. Little can pacify the pain that unmasked evil has wrought upon you. May God comfort you as you grieve.

“We are a nation of laws and not of men,” said the scholar. Yet, when a lunatic stands at the opposite end of the barrel, laws seem to have little meaning. Men, meaning mankind, seem to make the nation in that moment; not the laws being flouted by the merciless.

Ever since there have been guns, the debate has swirled: who should have them and how should they be used? As our country was founded, those who kept the power wielded the weapon. The Patriots of old were oppressed by the firearms of the British Regulars. In adopting our Constitution, it became evident that sometimes it is necessary for civilians to bear arms. More than that, it was obvious that sometimes it is necessary for civilians to bear arms against the intrusion of government. Hence, our Second Amendment.

Less than a century ago, the fully automatic rifle was not yet even a dream. Black powder had given way to Remington’s cartridges, muzzleloaders to Winchester’s rapid repeater. In the last few decades, as guns became ever more efficient at their task, it was apparent that this experiment in democracy needed to take steps to regulate guns. In the recent past, bills like the Brady Bill and others have imposed stiff waiting periods upon prospective gun owners, forcing gun sellers to do extensive background checks. Gun laws have done about everything possible to prevent good guns from falling into bad hands.

And yet, we have Columbine and, now, Virginia Tech, not to mention the untold thousands of murders carried out by the pull of a trigger.

More gun laws will not prevent more murders, just as more training with guns will only increase the efficiency of loons with bullets. Pop psychologists and political pundits have been quick to call for more gun legislation, more restrictions, as if statutes, codes, or regulations could bring evil to a halt. Through it all Archie Bunker’s words to his daughter’s lament about guns killing people give voice to our internal irony, “Would it make you feel better if they was all killed by knives?” Inanimate objects, no matter how deadly, do not cause mayhem unless acted upon by the animate.

Our society has lost the concept of personal responsibility. We have, for too long, said, “It is someone else’s problem!” or “Let the government handle it.” Meanwhile, our sense of community – a guardrail against extremity – has faded. Along with it, we have become egocentric to a fault. More than that, we shift the blame. Murderers murder because they were not hugged enough as children. Juvenile criminals no longer commit crimes, they “act out.” Politicians do not lie, they “spin the truth.” All the while, the real problem is right under our nose and we refuse to smell it: evil is real, palpable, and prevalent.

Perhaps the Virginia Tech shooter exhibited signs of insanity before his inexplicable rampage, but what did his community do about it? The parents blame the school, the school blames the professors, the professors blame the judge, the judge the hospital, the hospital the government – and round and round we go shifting the blame until we exasperatingly give up and call for the easy resolution with no real lasting effect: more laws.

Sometimes this “nation of laws” needs to remember that laws are written by, and for, the governed, but laws are only as good as the humans that agree to be bound by them.

Perhaps we ought to outlaw ourselves.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Politics Not Above the Law

Q: Was Speaker Pelosi’s trip to Syria legal?

A: This column does not do politics. Thus, we must approach this thorny political issue as dispassionately as possible. Whether it was the right thing, politically, for Speaker Pelosi to visit Syria recently is of no concern to Sidebar. The legality of her trip, however, is highly relevant to this column.

A very brief review of the facts: A week or so ago, the Speaker of the House, while on “Spring Break,” took the opportunity to meet with the head of state of Syria. Unless you have been under a rock for the last decade, you know that Syria has been rather naughty, as geopolitics go. While visiting with the dignitaries there, Speaker Pelosi clearly discussed how Syria and the U.S. could cooperate in bringing peace to the beleaguered Middle East. She announced that, not only is Syria ready to talk peace – something the current, official U.S. foreign policy does not agree with – and wrongly informed Syria that Israel is ready too. Both sides of the political aisle have roundly criticized her jaunt overseas.

The legal analysis of her trip requires us to consider at least two legal constructs. First, as usual is the Constitution of the U.S.: does the Constitution validate Speaker Pelosi’s outing? Short answer: no. The Constitution has exactly one sentence regarding the Speaker of the House: he/she is to be elected by the rest of the members of the House of Representatives. That is about her entire Constitutional role. Matters of foreign policy come in to play only when legislation is introduced touching upon it, usually (in the House of Representatives) in the form of an appropriations bill or War declaration. The Senate has slightly more foreign policy forays, but are themselves Constitutionally limited to giving advice and consent to the President when treaties are to be ratified. Still, no one within the legislative branch is authorized to meet, greet, negotiate, or communicate with foreign heads of state. Article II, Section 3 requires that the President “receive ambassadors and other public Ministers.” In other words, the President is the official head of state, the one to whom all other nations are to officially communicate to the United States. Not a member of Congress.

The second area of analysis is the United State Code: is there any law that makes her trip illegal? Maybe. Members of Congress are permitted to travel on “junkets,” or fact-gathering missions, paid for with tax dollars, designed to inform the legislator about a given topic. In that sense, if Madam Speaker had some legislation pending that could be informed by this trip, then it is most certainly legal. But, that is not what appears to have happened here. Instead of researching a particular bill, it appears that Ms. Pelosi was actively teaching a foreign head of state about U.S. foreign policy.

Perhaps most stark is the language of “The Logan Act” (18 U.S.C. § 953). The Logan Act makes it a crime, punishable by fine or three-year imprisonment, for any citizen, absent the authority of the U.S., to interact with a foreign government, “with [the] intent to influence the measures or conduct of any foreign government . . . in relation to any disputes or controversies with the United States.” Ms. Pelosi met with representatives of the Secretary of State who briefed her on her trip, but there is no report that her meetings with the foreign head of state were expressly authorized to represent the U.S. Whether Ms. Pelosi had the actual intent to “influence the measures or conduct of any foreign government” may be impossible to prove. Nonetheless, what is clear is that the Speaker of the House – a legislative, predominantly domestic, representative member of government – acts extra-constitutionally by meeting with a foreign head of state. Discussing points of foreign policy comes mere millimeters from potentially felonious conduct.

Of course, it is unlikely that Patrick Fitzgerald or any other independent prosecutor will investigate Ms. Pelosi’s trip. Still, whether or not our government is split politically, it is of paramount importance that the unique roles assigned to our branches of government be honored. The Union suffers when politics trump the Constitution.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Bond, Bail Bond

Q: What is “bond?”

A: Aside from describing a beefed up, aging home run hitter or a perennial, super-slick spy, the word “bond” has a unique meaning in the legal realm.

Last week we left our alleged criminal standing in front of a judge, having entered a plea of “not guilty” at his arraignment. That, of course, followed the indictment, which was produced by the independent and sizeable grand jury. Now, having made it through the arraignment, the judge has to determine what to do with the alleged perp until his or her case can come to trial.

There are a couple of options. The easiest might be just slapping the cuffs on the defendant and packing him away in jail until he can be tried. Certainly, for some severe cases that is the only appropriate method of detention. For criminal defendants who have committed vicious felonies, jail is the best method of protection – for the community and the alleged criminal. Besides, if the state is housing him, then his presence at trial and/or hearings is guaranteed.

But, for most criminal defendants, jail is excessive; for the rest, it is simply undesirable. For those situations, the most common solution is “bond.” You may know it as “bail.” Bond ensures the presence of the criminal defendant at all future legal proceedings to which he is required to be present by threatening to forfeit something of value should he fail to honor his obligation.

For instance, an alleged criminal might be imprisoned and, under the law, could stay there until the trial of his case occurs. Of course, most people do not want to be in jail, so in exchange for their release, the formerly incarcerated will agree that the authorities can claim the rights to a large sum of money or a parcel of property should he fail to honor the conditions of his bond. In some sense, bond is a lot like collateral for a loan. If the bonded person fails to honor the conditions of bond, consequences follow, such as forfeiting the money, property, or some good surety he leveraged against his freedom.

Perhaps the easiest way to think about most monetary bond agreements is to think of it as an insurance policy. Say someone was released on $50,000 bond. Most people do not have $50K to just fork over. So, a bondsman (a person that administers the bond – think Dog the Bounty Hunter) agrees to vouch for the alleged criminal in exchange for the accused paying a percentage of the total bond and/or a monthly payment. This secures the presence of the person to be tried because if the potential perp fails to appear at court when he is supposed to, the court will require the bondsman to either present the bonded person or forfeit the dough. Not wanting to fork over fifty large, a bondsman quickly locates the accused and brings him before the court.

There is another type of bond called, “personal recognizance” or, in shorthand, “PR bond.” Those given PR bond usually have committed a relatively minor (I.e., non-violent) offense and are generally trustworthy enough to make all required court appearances. Those on PR bond are insuring their court appearances against their freedom. If a person on PR bond misses a court date, a warrant is issued, and the Sheriff begins to hunt you down.

So answers the big mystery about bond. It is simply the court’s way of making sure you are present to answer for the charges arrayed against you.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

How Do You Plead?

Q: What is an “arraignment?”

A: As we continue our look into the court procedures governing the criminal process, our next step takes us to the arraignment. We have already learned that a grand jury is big, independent, and the producers of indictments. What comes next is called, the “arraignment.”

We can, of course, look to my Sidebar secret weapon, aka, Black’s Law Dictionary, for some assistance in defining the term, but BLD is not much help: an arraignment is “the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and to enter a plea.” Well, that makes sense.

Remember last week I told you that the indictment puts you on notice that you have been formally charged with a crime. The arraignment is where that notice becomes quite visible. You are compelled to come to court, sit in front of a judge, and hear the charges that have been alleged against you. Usually, the judge will call your name, your case number, verify that you are the person listed in the indictment, and ask you a few preliminary questions (Can you understand the language? Are you intoxicated? Etc.). With that out of the way, you get to choose whether to have the judge read the indictment or if you would like to waive the reading thereof. Since most people have a copy of the indictment already (usually, that is their invitation to the arraignment), most everyone waives the reading of it.

Now that everyone is on board with what you are being charged with you are asked those ominous words: “How do you plea?” There are many different kinds of pleas in this world, but at this stage, the options are only three: Guilty, Not Guilty, and No Lo Contendere. If you say, “guilty,” then things are pretty well over before they begin. Very rare. No lo contendere, or “I’m not saying I did it and I’m not saying I didn’t do it, I just don’t contest the charges,” is likewise seldom used and, if at all, usually just for misdemeanor crimes.

More often, the response “not guilty” comes from the mouths of the accused. By declaring yourself to be “not guilty” you preserve your presumption of innocence.

Sidebar:

Did you realize that this presumption of innocence is not explicitly stated in our U.S. Constitution? It’s kind of like the misnomer that the doctrine, “God helps those who help themselves” is found in the Bible. Actually, the presumption of innocence has been determined to be such a fundamental right that it’s expression in our Constitution was not needed. While Amendments V, VI, and XIV to the Constitution implicitly support the doctrine, it was not until the 1895 case of Coffin v. United States that the Supreme Court wrote: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” So fundamental is the right that in 1948, the UN even adopted the presumption in drafting Article 11 of the Universal Declaration of Human Rights. The question remains: if this idea is so “fundamental,” where did it begin? Ah! Send that question to opinion@dominionpost.com….

End Sidebar.

With the plea entered, the judge the is required to make a determination of what to do with you until your trial starts.

That is where we will pick up next week. Same bat time….

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Notice: You're a Criminal

Q: What is an “indictment?”

A: Last week we discussed the role, function, and importance of a grand jury. Specifically, we learned that not only is a grand jury much bigger than a petit jury and that it served as a go-between, ensuring that the sovereign’s allegations are done in public and with sufficient cause.

Sidebar: “Petit Jury,” for those of you wondering, was not a typographical error. I did not mean to type “petite” as in “small,” but left off the “e.” In fact, I meant what I wrote: petit – which is pronounced like “pet-it.” I am not entirely sure why it is spelled this way, but it seems to have derived its name from “petty jury” or a jury that hears common, or “petty,” issues. Thus, the “petit jury,” by definition is one empanelled in the trial of a specific case and which requires no special assemblage of jurors. That it is a small and, hence, petite jury is purely coincidental. End sidebar.

We also learned that what a grand jury produces is called an “indictment.” Let us start with the Black’s Law Dictionary definition of the term: “the formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person.” Now you see why I get paid the big bucks to answer these questions. I own a dictionary.

But knowing the definition of what an indictment is and understanding its function and import are two very different things. While we understand that an indictment is a formal document – usually a type written piece of paper signed by the foreperson of the grand jury – bearing the name of the person charged, what crime the person is charged with violating, and where the law that has allegedly been violated can be located. And, though we understand that the indictment kicks-off the prosecution process, we do not quite grasp yet why we have an indictment.

Imagine, if you will, you are sleeping cozily in your bed. Around three in the morning, someone blasts through your front door and throws in a stun grenade. When your senses return, you find yourself in handcuffs, lying in the back of a police cruiser, surrounded by men wearing black assault gear and carrying imposing weapons. When you ask what is going on, you are simply told that you have been charged with a crime and are being whisked away for the swift prosecution thereof.

Sure, the example may be hyperbole, but the point is clear: an indictment puts you on notice that you have violated the law and are now to stand trial for it. What is contained on the bill of indictment is what you can expect to be tried for – nothing more, nothing less. It is yet one more guarantee that your life and liberty are not deprived from you without due process of law.

An indictment, then, is not unlike a plane ticket. On its face, it tells you where you have been (alleged crime), where you are going (trial), and what it might cost you to get there (legal consequences). Of course, there are no rapid rewards or frequent flyer miles available with an indictment.

The importance of the indictment, then, is clear: the indictment clears up any confusion about what an alleged criminal has or has not been charged with doing. It keeps the prosecution on track and prevents excessive and secretive allegations.

In short, it ensures your Sixth Amendment guaranty to a speedy, public trial by an impartial jury. Which we all know by now is petit, not petite. Which suggests nothing about the gravitational challenge some petit jurors may present.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Grand Jury Not All About the Numbers

Q: What is a “grand jury?”

A: Before I went to law school, I often wondered what was so “grand” about a jury anyway. The talking heads on TV often said smart things about, “the grand jury did this” or “he was brought before the grand jury.” It all sounded so secretive, so filled with intrigue. It really irked me that I did not know the first ting about the grand jury.

In law school, I finally got to peak behind the veil of secrecy that is the grand jury. You know what I saw? I learned that a grand jury is a really big jury. Hardly the stirring answer I wager you expected.

Okay, that is only part of the answer. It is true that a grand jury is bigger than a petit jury by at least four people. A grand jury, in West Virginia, is made up of sixteen persons, whereas a petit jury – the typical jury that you normally think of – consists of six (for civil trials) or twelve (for criminal trials) persons. In some U.S. jurisdictions, grand juries can be made up of as many as twenty-three persons.

But size is not all that matters when it comes to defining a grand jury. Function is of prime importance. A grand jury decides whether the facts of a given situation are sufficient to issue an indictment and, in so doing, begin the criminal trial process. Prosecutors spend hours presenting the grand jury with facts and law in an attempt to demonstrate why so-and-so should be tried for such-and-such crime. If at least twelve of the grand jurors agree that there exists probable cause that a person should be tried for the crime charged, an indictment is issued and the criminal process begins.

Grand juries are required before any American can be tried for the commission of a felony. That is a guarantee secured for us by the Bill of Rights of both the U.S. Constitution (Amendment 5) and the Constitution of West Virginia (Article III, Section 4). Why is a grand jury among the foundational rights of the American system of governance?

To answer that, we must go back to the year 1215 and a field called Runnymede when King John signed the Magna Carta guaranteeing the first grand jury. Up to that point, if the King charged someone with a crime – justly or not – the person stood charged and, often, summarily tried, convicted, and sentenced. The grand jury interposed an objective and independent group of peers into the process. They effectively required the sovereign to give good evidence and just cause before someone was sent to trial. Our founding fathers noted that this idea was in keeping with the core principles of freedom and fairness and adopted the concept, as now embodied in the Fith Amendment.

Today, the U.S. is one of the only countries to still use the grand jury system. Other countries have similar procedures in place to make sure the government does not unjustly try innocents for crimes they did not commit, but few are like the grand jury system we employ. And, of course, some countries are still ruled by the whim and fancy of the despot.

Without such a stopgap, a government’s reach could do silently what its citizenry would never permit it to do, if done publicly. The grand jury, therefore, is yet one more hallmark of freedom in the governance of, by, and for the people.

Copyright: Jeremiah G. Dys, 2007. May not be used absent the express, written permission of the author. For permission to reprint, please contact the author.

Beware the Implications

Q: Does “caveat emptor” still hold any meaning in modern business?

A: How many of you took Latin at some point in your education and actually remember what this term means? Okay, the three of you in the back row can put your hands down. Now, how many of you actually work this term into conversation on a routine basis? Anybody? Anybody? Bueler? Bueler? I thought not.

For the benefit of the rest of us who do not have our Latin-Modern English dictionary at the ready, “caveat emptor” is a phrase that literally means, “let the buyer beware.” It is an axiom used to encourage buyers to use caution in what they purchase. If the buyer is truly being aware, he will know his rights in relationship to the product he is purchasing. It further implies the buyer does a certain amount of “due diligence” before he buys the thing, just to be sure that the product is what is advertised.

Conversely, the maxim is a phrase just as widely bandied about by merchants. By saying, “let the buyer beware,” the seller is attempting to disclaim responsibility for a faulty product. “Hey,” the angered purchaser snaps to the merchant, “this widget you sold me fell into a million pieces the moment I got it home. I want a refund.” How will the merchant respond? You guessed it: “Caveat emptor.”

Today’s marketplace is certainly a far cry from the bazaars of old, where this phrase, no doubt, had its origination. Does caveat emptor still hold sway in today’s business scheme? Say it with me class: “It depends.”

In days of old, it was difficult, if not impossible, for buyers to truly know if what they were buying was filled with so many defects that the product would be rendered useless as soon as it was sold. Today, the savvy buyer has the advantage of being able to research the product and company before buying their product. The Internet, Consumer Reports, and the Better Business Bureaus allow a buyer to determine whether the seller and his product is as reputable as the infomercial claims. Thus, in a certain sense caveat emptor is still of some effect. As the buyer, you have a limited duty to make sure the seller is trustworthy.

But, that duty does not absolve all sellers. Today, the idea of caveat emptor has been replaced with the doctrine of “implied warranty.” An implied warranty basically asserts that the given product will work as it is advertised to work, absent negligence. This a seller cannot disclaim. In other words, if a seller claims that the widget he has for sale will slice and dice, but actually explodes into tiny bits of shrapnel, the seller may be liable based on the implied warranty of fitness for a particular purpose.

You will remember from a previous column that waivers and disclaimers that attempt to bar liability are permissible, unless they run afoul of public policy. To disclaim a harmful product by saying, “caveat emptor” is as vacuous as putting a license plate on one’s car that says, “Not responsible for injury or death as a result of this vehicle.”

Being an aware buyer, regardless of what warranty is (or is not) implied, is probably the best method for staving off a lawsuit.

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Copyright Jeremiah G. Dys, Esq. 2007. May not be used absent the express written permission of the author. Please contact the author for permission to reprint.

Judicial Numbers Tough to Predict

Q: Should the West Virginia Legislature give Monongalia County another judge?

A: As it stands right now, the West Viginia Legislature is considering adding another judge to the 17th Judicial Circuit of West Virginia, or Monongalia County. It is appropriate that Legislature consider doing this for a variety of reasons.

The first reason that pops to mind is that it is constitutionally mandated to align the circuits once every eight years. That is, it is the unique province of the Legislature – not the Supreme Court, not the Governor – to determine whether or not the circuit courts ought to be realigned or whether more (or less) judges should occupy such circuits. Thus, it falls to the Senate and House of Delegates to consider wisely what it will do.

There are, essentially, two options. The Legislature could suggest that the circuits be realigned. Presently, there are 31 circuits throughout the State. Obviously, there are more counties than circuits, so it stands to reason that some circuits cover more than one county. Realignment suggests that one county may not have as busy of a docket as another and, so, the counties are combined to make one circuit. This involves a lot of redistricting that, for historical and political reasons, is not a favored method management.

The other option, therefore, is to add or subtract judges within the presently existing circuits. To do this, our legislators consider the circuit’s population to judge ratio, the size of the docket within the circuit (what we call, “caseload”), and other intangibles. The goal is to have enough work to keep a judge good and busy, but not so much that justice is delayed.

That brings us to Senate Bill 400. Having already passed the West Virginia Senate and now pending in a House of Delegates committee, SB 400 provides for five new judges to be added to five judicial circuits: the 24th (Wayne), the 30th (Mingo), the 9th (Mercer), the 22nd (Hampshire/Hardy/Pendleton), and the 17th (Monongalia). The House of Delegates ought to affirm the bill as presented by the Senate. Although, that is a bit more difficult now since, as of Friday, the House Judiciary Committee added another judge to Kanawha County’s present roster of seven judges.

Monongalia County is among only a few counties whose general population is trending upwards, rather than downwards. That is, more people are moving and staying in Monongalia County than anywhere else in this state, with the possible exception of the eastern panhandle. With more people, comes increased litigation. Without adding another judge to the two that already sit on the bench here, justice will be often delayed. Justice delayed is justice denied.

The numbers agree with the bill. Looking at the population to judge ratio, Monongalia County has over 41,000 people per judge. That is currently the third highest ratio. If a judge is added, as proposed by SB 400, then Monongalia County becomes the first in population per judge with almost 28,000 people per judge. With population, caseloads, and crimes trending up, it is quite clear: Monongalia County ought to receive another judge.

But, there is perhaps one consideration that is often overlooked in the arguments about judicial realignment. The West Virginia Constitution mandates that this realignment process take place every eight years. In other words, should the Legislature fail to act this year, it might not be until 2015 that this question would even be considered again.

Better forecasting than the weather channel is absolutely imperative. By 2015, which is more likely to have more people: Monongalia County or a southern West Virginia county? By 2015, whose caseload is more likely to be spiked by an increase of business disputes and criminal complaints that an increasing population brings: Monongalia County or one of some fifty counties shown to be generally declining in population? The question, therefore, becomes how good is the Legislature at forecasting?

Can Monongalia County get along without another judge? Perhaps for now it can, but now is not the timeframe to be judged. Tomorrow is. With that timeframe in mind the answer to the question is an emphatic, “yes!"

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Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

When Worlds Collide

Q: What is a “force-majeure” clause?

A: There is really no pithy way to start to answer that question. I thought of making a wise-crack that this is a word used to describe powerful attorneys (they are a “major force”), but thought the pun was too much to take, even for me. Then, it occurred to me to reference the French film of the same title made in 1989, starring B-class actors and F-class plot, but that certainly does not aid in our understanding of the term.

The only way to answer the question, it would seem, is to tell you what it literally means, then illustrate by means of a hypothetical, and make some profound insight as to its importance. All of this, of course, is done in the hopes that you can sound oh-so-smart when your cable Internet company calls to confirm your contract.

According to Black’s Law Dictionary, a “force majeure” is, literally, “a superior force.” The word is of French origination and is properly pronounced, “fors ma-zhur.” (Actually, that “u” should be a schwa, but I am an attorney, not a phoneticist.) The term describes an unanticipated event that cannot be controlled. When used in the confines of a contract, the “force-majeure clause” not only becomes hyphenated, it arrives at a precise meaning: a clause that allocates the risk if the performance upon the contract becomes impossible, impractical, or improbable because of unforeseen, unanticipated, and uncontrollable forces.

Now isn’t that clear as mud?

Ok, time for the example. Say you contract with my shipping company to ship your Yugo to your winter home in Iceland. We agree that I will package and ship via container ship your Yugo and you agree to pay me a bazillion dollars to do so.

Sidebar: Like you, I thought the word “bazillion” was just a word made up and used by five year olds to describe a lot of money. Actually, it is a real word meaning, “an infinite number.” Aha! My goal of earning a bazillion dollars is still viable! End sidebar.

Of course, being an astute attorney and businessman, I insist on having a “force-majeure clause” included on one of the bazillion pages of our contract. We sign it, you pay me, I package your Yugo in one of my containers, and put it on my ship. Unfortunately, midway to Iceland, the perfect storm hits my ship. Of course, with George Clooney at the helm, my ship steers directly into a wave, is swamped, and your subcompact Yugo sinks and becomes the newest, and smallest, reef on the floor of the Atlantic Ocean.

Luckily, the “force-majeure clause” is going to protect me. You see, neither of us could have possibly conceived at the time of contract that the perfect storm, causing a Empire State Building-sized storm to swamp my well-steered ship, was going to hit my ship and sink your Zastava Koral. Such an event was unforeseeable, unanticipated, and uncontrollable and, because I am not going to swim to the bottom of the North Atlantic and drive your Yugo to Iceland, performance upon the contract has become impossible. How either of us is compensated for the loss (you of the Yugo, me of the money to ship said Yugo) will be determined upon the verbage of the “force-majeure clause.”

A “force-majeure clause” protects both parties from the unpredictable. It acknowledges that God often sticks his finger into His creation and prevents the performance of a contract. Even if the chances are just one in a bazillion!

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

A Truly Precedential Column

Q: What is “precedent” and what affect does it have?

A: Any dictionary will tell you that a “precedent” is a legal decision that has an authoritative impact on cases of a similar nature. But, if you want to really be fancy and impress the neighbors, you should call it stare decisis, pronounced “STAHR-ee di-SIGH-sis,” literally meaning, “to stand by things decided.”

A decision becomes “precedent” when the highest court in the given jurisdiction gives final interpretation to the law. Recall from high school civics that, as our first Chief Justice of the Supreme Court of the United States said, “It is emphatically the province and duty of the judicial department [the courts] to say what the law is.” What Chief Justice Marshall wrote simply echoed Alexander Hamilton’s words in The Federalist Papers, No. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Ultimately, this notion became known as “judicial review.”

What we have then, are two basic sources for our laws, each based upon a fundamental, legal building block. One source is legislative. The Legislative body determines the “will of the people,” writes laws to provide for our collective goodwill, and ask that they be implemented by the Executive. But, the Judiciary acts to ensure that the rights of the people are not trampled by the acts of government. As Hamilton put it No. 78, “the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

That is, we as a society have consented to be governed and put that governing trust in the hands of a government. That consent has taken the form of our Constitution, the foundation for our laws. If that government acts contrary to what we have consented in the Constitution, then the government (our agents) must give way to the constitution (our intent).

That brings us to the second source for our laws: common law. Common law is a fancy way of saying judicial decisions. The significance of why it is called, “common law” we will leave for later. Suffice for the present to say that common law has equal effect as legislative law. Judicial decisions “say what the law is,” so to speak. Where it crosses our consent by actions of our agents, it is unconstitutional.

But, once written, the judicial opinion becomes authoritative even over the piece of legislation is has then ruled upon. The Legislative branch would, therefore, have to write a law that would not conflict with that decision. If it legislates afoul of that judicial opinion, it will be invalidated by that governmental watchdog: the Judiciary.

Not only must subsequent legislation conform to that decision of the court, subsequent courts must also “stand by things decided.” In other words, the decision has “set a precedent.”

Setting precedent is a very serious matter. In order to overcome it, a court must essentially admit that it was wrong and change its mind – an act seldom undertaken. And, because our consent – in the form of the Constitution – is so fundamental to the foundation of our government, the importance of wisely reviewing our laws cannot be understated. Nor can the importance of placing the wisest and most prudent jurists on the bench.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Immunity is Catching

Q: I saw a judge on Law & Order threaten to through out an immunity agreement. Can judges really do that?

A: My colleagues are going to poke fun of me, but I really do enjoy a good episode of Law & Order. I wish real court life was that succinct. They go from crime, to investigation, to indictment, to trial and conviction in one, neat hour. And, for the most part, the legal wrangling is pretty spot on, though not entirely complete.

To answer this question fully, you need to understand the idea of immunity. Of course, most of us know about the idea of being “immune” from a disease, meaning the disease has no affect on the person with immunity. Well, it is not unlike that in the law.

There is the classic, “sovereign immunity.” Quite simply, to say that the “sovereign” is “immune” is to say that the state is not liable for certain aspects of their governance. The term “sovereign” is derived from the English common law and was a reference to the King who was absolute in his power, beneficently ruling with the authority of a little god in his country. Thus, since he was instilled in the monarchy by the authority of God himself, the king could do no wrong. Hence, he could not be liable in court either. Patriots put that notion down; but the idea that the government – made of, by, and for the people – was limited in its liability remained. Today, the government is immune from most legal actions alleged against it, though exceptions do, indeed, exist to provide adequate redress for wrong action.

Judicial or civil immunity attaches to judges and civil servants acting in their official capacity. Thus, a judge cannot be sued for a certain ruling from the bench and a police officer cannot be prosecuted for arresting you. However, even that has a down side: if either wield their judicial or civil power to intentionally harm someone, thus taking them outside of their proscribed role, they could face legal action.

Spouses also carry immunity, as do clergy, lawyers, and doctors. This type of immunity is called “testimonial” immunity and serves as a tool to promote confidentiality. Thus, a wife may refuse to provide testimony against her husband, a priest need not tattle on his parishioner, a lawyer cannot reveal the confidences of his client, and the doctor retains a privilege over his patient’s revelations. Yet even those testimonial privileges can be pierced in rare circumstances and the testimony that was once immune can be compelled.

Then there is the type of immunity that prompts this question: immunity agreements. We are all aware of the perp that agrees to “turn state’s evidence” in exchange for not being prosecuted for a crime, or receiving a lesser punishment. That is an immunity agreement. Essentially, it is a contract. The lawbreaker agrees to rat on his pal and, in return, the prosecutor he is helping agrees not to nail him on the crime that his testimony naturally implicates him.

Can such an agreement be overturned by a judge? Let me give you the classic law school professor answer: it depends. On the one hand, no it is a contract and, under the law of contract, once the rat sings, the state has to stand silent. But, on the other hand, if the scofflaw welshes on the deal, the state is not obligated to honor its end of the bargain and the judge can overturn the immunity agreement.

The easy answer? Yes. (But aren’t you glad you read this whole article to get that?!)

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

The Drama 'tis the Court

Q: Who does what in the courtroom?

A: The venerable bard Williams Shakespeare speaking through the voice of Jacques in his play As You Like It explained, “All the world’s a stage, and all the men and women merely players. They have their exits and their entrances, and one man in his time plays many parts, his acts being seven ages.” What ‘tis true in life, ‘tis verily true within the halls of justice, to wax Shakespearean.

In the drama that is the courtroom there are a variety of players, each playing a unique and distinct part. The director of this drama is the judge. His oversight governs the proper and legal conduct of all who enter the courtroom’s doors. He is not unlike the captain of a ship, though he need not be in international waters to perform a marriage. The judge establishes the cues for when the lines are to be said and orders the curtain drawn when appropriate. It falls to him to finally say what the law means. He hears objections, instructs jurors on what the law says, and provides for courtroom security. When the jurist speaks, the whole troupe gives way to his words.

There also appear individuals playing the part of attorneys. Usually two in number, one represents the plaintiff, the other the defendant and each present the facts of the case to jurors, while ending such presentations with persuasive arguments of how those facts befit the law.

Attorneys speak to jurors, who range in quantity from six for civil cases and a dozen for cases in criminality. These temporary courtroom thespians play the part of the factfinder. Second only to the judge, the jury has the most say in the outcome to the trial. None on the courtroom stage are permitted to interfere with the independence and peculiar function of our jurors, and so these players fill an essential role of our judicial theater.

A cadre of other actors plays supporting roles and fill out the rest of our playbill. Of course there are the parties to the case: a plaintiff (if the case be civil), the State (if criminal it be), and a defendant. Asked to write the improvised script of our production are the witnesses, called by each side – each with a different or unique take on the matter in controversy. The testimony of witnesses seems often akin to the villain Autolycus in As You Like It, “Though I am not naturally honest, I am sometimes by chance.”

Charged with recording each jot and tittle spoken by the players is our resident scribe, the court reporter. By spoken word or deftly typed strokes of a keypad, our court reporter maintains for posterity (and sometimes appeal) the words of our drama.

Beside the judge sits the circuit clerk. As the keeper of records, the circuit clerk is charged with maintaining the exhibits introduced in an orderly fashion. Her most important function: swearing. That is, it is her duty to administer the oaths.

In the corner sits our justice of the peace. His presence suggests protection and his duty agrees. He is the lone Musketeer whose sole end in professional life is to maintain the safety and security of the courtroom.

Finally, there is a lonesome soul who seemingly plays no part. His role is silent when present on the stage that is our courtroom, yet his words often speak through the other players. He plays one part advisor to the judge, another part jester, and most parts attorney. While this barrister does not litigate, his ability to research and anonymously pen the words of the judge bespeaks his legal training. He is the judicial law clerk, the embodiment of the fifth age that Jacques explained in his soliloquy that begins Act II, Scene 7: “And then the justice, In fair round belly with good capon lin’d, With eyes severe and beard of formal cut, Full of wise saws and modern instances; And so he plays his part.”

And so they all do play their part and the drama of justice is meted out in daily form.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

This is MY Country

Web exclusive: The following was declined publication by my editor, but has been made available for your review here. I am not entirely sure why the editor declined to print the article. The only reason offered was that it was not related to my typical subject matter. Media bias?

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A few years back, I was touring through the National Museum of the United States Air Force in Dayton, OH. Underneath the largest hanger, there sat the SR-71 Blackbird, a piece of Cold War era, cutting-edge technology largely unknown until just before its retirement. Standing in front of the sleek, radar-dodging behemoth was an old man wearing a hat indicating his soldierly service. I first noticed him when he was proudly having his picture taken in front of the bird. As I approached, I kept an eye on him. He must have noticed my attention. With a tear in his eye and a slight tremble in his voice, this octogenarian – and obviously proud veteran – though bent over by the weight of his many years, puffed out his chest as if at attention and exclaimed as he pointed to the retired plane, “That is the best damn plane ever built.”

The old soldier’s words are a far cry from the headline I saw earlier this week, “Americans Somber About Bush, U.S., Iraq.” Somber? What in the world do we have to be somber about? We live in the best country ever built. Ever.

Sure, our country has had its share of black eyes. We have committed our share of abuses in the name of freedom. We have made innumerable mistakes and looked awfully foolhardy at times. But, for goodness sake, this is the country that epitomizes freedom in our world today. It is America that has stood up for the downtrodden, whether they land on their shores or whether we need to go to theirs. Grit, guts, and glory ought not be viewed pejoratively; rather, they ought to reflect the dogged determination that is part of the humble fabric of this fine nation.

This is the country of apple pie and Grape Nuts. It is the country that birthed the sky-scraper and popularized the Frisbee. This nation made electricity a common commodity and gave rise to the mass production of the automobile. Visionaries here took flight – literally – on a whacky notion that man need not be bound by gravity. Pilgrims braved treacherous seas and starvation to found a place where people can freely exercise their religion without one being established upon them.

I am plain sick and tired of the poor-mouthing that has been going on in this nation for the better part of the last decade. One side of the political spectrum accuses the other of destroying a thriving economy; the other decries their opponent’s policies as laying a brick road to eternal poverty. Some base their power on a war, others create power by undermining one. Morality is defined by the expedient and ethics by the putrid breeze of popular culture. Even the poorest among us live lavishly in comparison to the orphan on the streets of Calcutta. Somber? Give me a break!

In 1940, Don Raye penned the lyrics to the folk song, “This is My Country.” In the second chorus, Raye emphatically recites, “This is my country! Land of my choice! This is my country! Hear my proud voice! I pledge thee my allegiance, America, the bold, For this is my country to have and to hold.”

It really comes down to that: will you have and hold your country? Is this land your choice? Can you sing, “What difference if I hail from North or South, Or from East or West, My heart is full of love for all of these. I only know I swell with pride and deep within my breast, I thrill to see old glory paint the breeze?”

The choice is yours. Go somber or go proud. This is MY country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Venues: They are a Changin'

Q: What is a “change of venue?”

A: Before an answer to this question can be properly understood, you must understand that the Sixth Amendment to the Constitution of the United States guarantees an alleged criminal the right to a “speedy and public trial, by an impartial jury of the State and district” where the crime allegedly occurred. Key in on that word “impartial;” its importance will be shown shortly.

Here’s what normally happens. A criminal is arrested and indicted for the commission of a crime. Ultimately, the criminal defendant will get the opportunity to defend the charges brought against him in an appropriate court of law. That defense takes place in the form of a trial. Criminal trials are presided over by a judge and a jury. The judge governs matters of law, while the jury is the determiner of facts. That jury, for a criminal trial, consists of twelve individuals who are residents of that county.

Most of the time, we are blissfully unaware of all the sordid details of the crimes that happen within our community on a routine basis. But what happens when a “high-profile” case comes to trial? Trials for cases that have already been tried in the court of public opinion present an especially difficult issue when it comes time to make payment on that Constitutional guarantee of an impartial jury.

Sometimes, the projected jury pool could be so vastly biased that it is necessary to find another jury pool. Enter “change of venue.” Venue is simply the place where the trial will occur. When we speak of changing venue, lawyers mean that the trial needs to change location. So, if the case is pending in County X, but County X is determined to be frightfully biased, the trial of the case is moved to County Y, using all the lawyers, witnesses, and even judges that would have been used in County X, but jurors from County Y in an effort to ensure impartiality.

Changes of venue are few and far between. One reason for that is the law, which requires a defendant to prove “the existence of a locally extensive present hostile sentiment against him,” as one court put it. The Rules of Criminal Procedure require the existence of “so great a prejudice against the defendant” that no “fair and impartial trial” can be had in the place the law demands trial. Proof of such a pervasive bias is undeniably difficult.

Why? Well, say there are 80,000 people residing in the current venue. The jury only needs to be twelve people. We all know that you, dear readers, keep well-informed of the goings-on of this county, but not all of our fine residents do – by this paper, radio, or television. It is safe to say, frankly, that most of our neighbors have no idea what is going on down at the courthouse. Only twelve people who know nothing of the criminal defendant or alleged crime need to be found to secure impartiality. Finding those twelve can be surprisingly less difficult than you may think.

The reason the burden is so heavy upon a criminal defendant is that there are great costs to changing venue. Where do you go to be free of the bias? What does it cost to transport the entire trial to the new place of venue? What evidence must make the trip?
Our system of justice functions well to ensure impartiality. It depends upon the honesty of prospective jurors to confess bias, should they have any. Empanelling “an impartial jury of the State and district” where the crime allegedly occurred happens far more often than not.

Impartial juries: just one more indication of your importance to the assuaging of injustice in this fine country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Who Pulls the Trigger on War Power?

Q: President Bush wants to send more troops to Iraq. The Democrats majority in Congress does not want more troops sent. What branch of government holds the power of war?

A: Power is all the rage lately. The out-of-shape, take “power walks.” The sleep-deprived take “power naps.” The leisurely lunch, has been replaced with “power lunches,” where “power bars” are the main course. Even, or perhaps especially, in politics, the grab for power often leaves those who matter most in a lurch. Such seems to be the state of this week’s affairs.

On Wednesday, President Bush announced his plan to send more troops to Iraq. The day before, Sen. Ted Kennedy gave a “pre-buttal” to the President’s speech. The day after the presidential prime time address, Congressmen and Senators were wagging their tongues in a flurry of speeches that say only enough to get them airtime on the major news networks. All the hullabaloo is about who has the power over the troops.

The President has laid out a plan to increase troop presence and action in Baghdad. The Democratic halls of Congress, still full of vim and vigor from November, are making empty threats to prevent such a malefaction. Sen. Harry Reid is proposing a “non-binding” Senate resolution that expresses disapproval of the President’s newest plan. Speaker Pelosi will no doubt follow suit. But who wins the power war? More importantly, who loses?

I am not going to argue the merits or detractions of the President’s plan. But, in order to sift through the rhetoric of both sides of the aisle, let me give you some power of your own; a “separation of powers,” to be precise.

The President is the Commander-in-Chief of the Armed Forces, according to Article II, Section 2 of our U.S. Constitution. Thus, he has the authority to position – without any branch of government’s approval or permission – the finest military in the world. As one of his chief duties as President, it falls to him to organize, prepare, and strategically place our military so as “to provide for the common defense.”

That brings us to Article I, Section 8 of our Constitution, which bestows the power to fund such a common defense upon the Legislative branch. What is more, if there is war to be declared, that too falls to the Legislature, as does the very raising, supporting, equipping, and regulating of the army, navy, and militia.

Hence the two seemed locked in an un-ending struggle. While the President sets the course, turns the wheel, and aims the barrel, it is the Congress that buys the gas and turns the key of the military machine that drives us into battle. Unless the two work in concert, war is not possible. Unless the two ends of Pennsylvania Avenue act in complementarity, military actions will fail before they begin.

As you listen to Senators and Congressmen huff and puff as they try to blow the White House down, remember that the side you disagree with must also be complicit in that with which you lodge your agreement. That is, if you like the idea of more troops, then you need the Legislature to adequately fund them. If you prefer fewer boots on the ground in the Green Zone, only the Executive can order them home. They may be bitter bedfellows, but for the American military to be at its most powerful, the power we often refer to as separate, must work in tandem.

In the final analysis, the most powerful weapons in our current conflict are the grunts, flyboys, leathernecks, and mates of the U.S. Armed Forces. May God bless their mission and bring them home safely. And soon.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Was that Lying or Laying in State?

Q: What does it mean when a body is “lying in state?”

A: At first blush, this may seem out of the ordinary for this column – a column routinely dedicated to answering your legal curiosities. But, with the recent passing and “lying in state” of President Ford, this question piqued my curiosity, when posed by my overly inquisitive friend.

It appears that there are at least three variations on the theme of “lying in state.” At its heart, “lying in state” refers to that honor given to the body of an esteemed individual wherein the person’s body is laid in a place of prominence so that others can pay their respects. In that sense, it is often referred to as, “lying in repose” – meaning, literally, to lie (or rest) “in peace.” Thus, any deceased person can “lie in repose” and often do at the funeral home or place of worship of his or her family’s choosing.

What we are more familiar with, however, is the idea of “lying in state” where the person is a person of prominence and the pedestal is the rotunda of the United States Capitol. By regulation and custom, only those due an official, or “state,” burial are entitled to the honor of “lying in state.” That same regulation and custom usually only permits U.S. Presidents, Congressmen, and military commanders to be “laid in state.”

You may remember that in 2004, we witnessed Ronald Reagan’s “lying in state,” which was preceded by his “lying in repose” at the Ronald Reagan Library. But, when Chief Justice William Rehnquist passed away, his family chose to have his body “laid in repose” within the Supreme Court building, even though President Bush offered to authorize his “lying in state.”

Since the building of the US Capitol, thirty bodies have placed upon the Lincoln catafalque – the bier (or stand) made of hewn pine boards, roughly nailed together to support Lincoln’s casket – at the center of our legislature. Eleven Presidents, a variety of congressmen, Generals such as MacArthur and Eisenhower, and unknown soldiers from American wars have been granted this traditional honor. Other notables include, Pierre L’Enfant – the planner of the District of Columbia, J. Edgar Hoover – the colorful director of the FBI, Henry Wilson – the only Vice-President to have been given the honor, as well as one (and the only) woman, who did not fill any of the traditional offices, yet was indisputably deserving of the honor: Rosa Parks.

The third level of this postmortem honor is called, “lying in honor.” After a 1998 assassination attempt by a lunatic claimed the lives of two Capitol Police officers, the US Congress provided a way in which heroic individuals, like Officer Jacob Chestnut and Detective John Gibson, could be honored.

“Lying in state” is a distinct honor of national significance and is used only in the most unique of circumstances, thus maintaining its regal significance. While it is not a legal right, it is a tribute that often requires laws to permit it, as in the case of Rosa Parks and “lying in honor.” Thus, Sidebar’s mission to answer questions involving the law or legal process is satisfied.

And, if your mind is like mine, there is one question swirling around your mind right now: What is the difference between “lying” and “laying,” “lie” and “lay,” and “laid” and “lain?”

I’m an attorney. Go ask your English teacher.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

On Government and the Tenth Amendment

In explaining the virtues of the U.S. Constitution, Patrick Henry once said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”

Henry lived in an age where what the king proclaimed was law. The king was the sovereign and, befitting of such a title, his rule was not to be questioned. Thus, the government conducted at the hands of the king often followed the whims and fancy of the monarch. His rule was not unlike the dictatorial styles of many tyrants today. Few typified this more than King George III, the monarch from whom we as Americans declared our independence in 1776.

Throwing over a despot may be rather simple. The devil is in the details of providing sufficient freedom through accountability. As the patriots of old threw off the chains of a monarchy, a government needed to be installed, lest anarchy become the rule of the day. Our founding fathers chose to install a democracy within a republic, by means of a Constitution.

A constitution is simply a founding document for an organization. Within its words are laid the rights and responsibilities of the institution and its members. With the U.S. Constitution, we see express powers given to the Executive, Legislative, and Judicial branches of our government. But not every power is expressly surrendered to our government.

In fact, the Tenth Amendment recognizes that fact when it says, “The powers not delegated to the United States . . .are reserved . . . to the people.” Thus, Henry’s explanation comes into focus.

Our freedom is at its greatest when government is most restrained. Our government, unique among a variety of forms, does not act upon the whim and fancy of a sovereign. Ours is a government instituted by its people. Our citizenry determines how far the government will reach. Our government is one of accountability.

One of Patrick Henry’s contemporaries, Thomas Paine, made the observation, “Government at its best is a necessary evil, and at its worst, an intolerable one.” We need government to maintain order, to provide for the common defense; however, only in a limited, accountable fashion do we provide for a government to use some of those rights corporately to do that which we cannot do individually. The rights remain our own. Government is not the panacea for a world of trouble.

The more we relinquish our rights to government – expressly or by silent inaction – the more it will come to “dominate our lives and interests.” Exercise your freedom. Restrain your government.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Doctor, Doctor...Mister...JD?

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.

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.