Thursday, August 27, 2009

A Gripe: Overselling a Product for Those Who Want to Play Attorney

Curiosity about a Google search lead me to Precedent for Child Custody.  Looking over the blurb for the book greatly annoyed me as a lawyer:

Let me explain why.  This blog exists for many reasons such as the following (without any particular order):  touting my practice, a place for me to explore subjects that go beyond my actual practice, and educating the public.  I noticed a long time ago that - regardless of the disclaimer that is on the right hand side of the screen - many people come here looking for advice about their specific case.  Others come looking for information about their specific cases.

I try to be scrupulous (even to the point of being pedantic) about what I write.

This explains why the blurb annoyed me but not what annoyed me about the blurb.  Let me do that now.

There is no chance that the judge will research cite cases which identify the precedent in your favor

I find this less annoying than what follows.  Judges are busy and lawyers are expected to be relied upon:
Rule of Professional Conduct Rule 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

( 2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel....

And the judges have their own ethical rules:
A judge shall comply with the law,* including the Code of Judicial Conduct.

The judges have their law libraries - whether hard copy or electronic available to them.   No judge will refuse to research an issue when confronted with a conflict of law.

I get much more annoyed with this:
Attorneys rely on the cases they use over and over and may not have the knowledge, resources or time to research the new pertinent cases.

I some attorneys who hate research but they do it.  The resources are readily available in every county.  Thanks to the Indiana Supreme Court, we know have original opinions online.  Those who follow this blog regularly know that I get opinions delivered by The Indiana Lawyer via e-mail. I think that takes care of knowledge, resources and time.

What is not mentioned above is that any lawyer not have time to keep up with the law is incompetent and will not be practicing long.

My ire increases with:
The cases offered by the other side may not be on point or may have been overturned. 

"Not on point" means that they do not apply  to the facts of the case.  Those will be batted away by opposing counsel or the judge quickly enough.

Go back and read Rule of Professional Conduct Rule 3.3. Candor Toward the Tribunal about using cases that have been overturned.

No, any lawyer doing this will not be long in practice - either he will go broke or the Indiana Disciplinary Commission will remove him.

But here lies the biggest problem:
Precedent set in a tobacco or personal injury case or even a different state may have a point of law that applies to your case. It is not necessary for the precedent to be set in a family law case to help you.

You use foreign law at your own risk.   I find myself stymied trying to think how a tobacco or personal injury case may provide precedent in a custody case other some point of procedure, and that will leave me trying to explain the problem in the abstract.  Here is how to use foreign precedent in an Indiana court:
  1. Check the foreign precedent - including its entire line back - against Indiana law to make sure that Indiana has not already considered the same issue.  If Indiana has already considered the foreign precedent against how you want to use it, then end of game.  If Indiana has ruled that the foreign precedent applies to Indiana, then go to the Indiana case and use it.  If Indiana has not ruled one way or another, then go to 2.
  2. You have to make sure that whatever is the foreign precedent it applies to Indiana's statutory framework.  That means go looking at the Indiana Code on custody.  Then go to 3.
  3. Prepare an argument why the foreign case applies to Indiana.
If you poke around this blog a bit more (there are archives by subject of older articles on the right hand side and down), you will notice of my noting cases from other states and even other countries.  It is because I think they will apply under Indiana's system of family law.  For an example of this, read my Relocation  - Ideas from Outside of Indiana or Cohabitation Agreements Comparing Nova Scotia and Indiana.

For those thinking of representing yourself, I understand the impulse.  You think you should be able to do this without a lawyer.  You want to save money.

I strongly suggest that you are wrong.  I suggest even more strongly that you follow the label below for pro se parties and study those articles. 

What you need to be even more worried about is getting information such as what is offered by this publisher.  While the book's index appears impressive, the method used for selling it leaves with serious doubts.

No comments: