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July 2017 Archives

Should a lawyer be involved in my real estate closing?

Generally, the answer to this question is YES. Real estate closings typically can involve some of the largest dollar transactions in a person's life yet, it seems that many people avoid using lawyers in such transactions, and appear to be much more prone to use the services of lawyers in transactions involving far fewer dollars! Not only do we recommend that our clients discuss real estate transactions with their attorneys before entering into contracts to sell or buy real estate, we also recommend that they keep their attorneys involved until after the transactions are closed. Innumerable potential problems can arise, many of which will legitimately require advice or other services from a trained and licensed attorney. These can include, but certainly are not limited to the following: a problem with an easement, difficulties with tax liens, inaccurate legal descriptions, incorrectly executed documents to prior owners of the property, court orders affecting title to or the use of the property, restrictions on property use, entitlement to appliances located in the real estate, possession of window treatments, antennas and rotors, etc. And, even at closings issues can arise like inappropriate crediting of costs or expenses, improper charge backs, improper execution of documents, etc. I know I have said this before on a lot of occasions, but it seems to me that there are many people who are very quick to seek the services of a lawyer when they buy a relatively small item (like a vacuum cleaner, bicycle, used car, etc.) who are for some reason much more reluctant to consult lawyers with transactions as major as purchasing or selling a home. I think it makes good practical common sense generally for people to consult lawyers when they are contemplating engaging in real estate transactions, and through the process of acquisition and financing homes and land.

Am I properly protected when, after I sign a contract, I take it to my lawyer to review it?

That one is a loaded question in many ways. But, usually the answer to that is a big NO! All too often, once a contract has been signed, the terms have already been legally agreed upon, and are not subject to modification unless both parties agree. In fact, many times the agreement needs to be in writing before a modification is even enforceable. Generally speaking, the best way to avoid pitfalls related to early execution of documents, is to check with your legal counsel before you sign them!

Witnesses

The American justice system depends upon testimony of witnesses. Most testimony is handled orally, but there are some situations in which it is done in writing. If you have a case in which a lawyer is representing you, and you are a Plaintiff, Defendant, Movant, Respondent, etc., the odds are that you will need to be a witness in your own case. You will probably be requested to give oral testimony, which more often than not will involve you answering questions presented to you by lawyers on both sides of your case. If you are not a party in the case, you may still be called upon to answer questions as a non-party witness, to clarify the facts for the aid of the Court. You may be called as a witness by one side or the other, or in some cases both.If you receive a request to testify, it would be wise for you to discuss the matter with your own attorney to determine what your responsibilities, rights and obligations may be. When you testify in a Court proceeding, you will be under oath. You are required to tell the truth. It is not appropriate for you to guess, exaggerate, or to fabricate facts that don't exist. If you are asked a question that is not clear to you, it is generally permissible to ask for clarification. It is important that witnesses understand what is being requested.Always remember that a person who lies while giving Court testimony may be charged with the crime of perjury, which is quite serious.Sometimes witnesses are asked questions which are difficult, and which may lead one to anger. However, raising your voice at a lawyer or Judge in a Court proceeding, being critical of the Court or counsel, etc., is inappropriate. When testifying, you should always focus on the question and the answer, and tell the truth. If you don't know the answer, you should say so.Many people feel that they are being asked to go above and beyond the call of duty when they receive requests to testify. Sometimes, that may be the case. However, having the ability to question witnesses is one of the hallmarks of our legal system, and often is very necessary to the orderly administration of justice in America.Many times, acting as a witness can be a very responsible thing for an American citizen to do. If in doubt about your rights or your obligations, we suggest that you should consult your attorney.

Question: I hired a lawyer in the hope that she would be able to get my case settled, but she hasn't. Does this mean she is doing a bad job?

Well, I have heard this sort of thing before. And what is interesting is that sometimes I have heard the following sorts of inconsistent statements come from the same person: "My lawyer keeps charging me to attend more and more depositions and hearings and is doing more and more work;" "My lawyer wants me to settle for less than I think I should receive." Frankly, these sorts of comments are a lot more typical than one might assume. I have seen a lot of people take unreasonable settlement positions and demand that their attorneys hold tight without "giving in" in negotiations. And, those same people act almost as if they are surprised when the lawyer is not able to settle the case on what may appear to the lawyer to be an unfair position to begin with. Then, when the lawyer has to do a lot of additional work to have the case litigated, the client is upset. A case can only settle when both sides agree, and if they don't agree, the logical outgrowth of that situation is for the case to take longer and involve a lot more work on the part of the attorneys. So, in many situations where a client would like to reduce the amount of time and money involved in litigating a case, the best way to do that may be to adopt a less demanding settlement posture. It is not my contention that people should generally settle cases for less than they are due, but I firmly believe that many cases can be settled on a "win-win" basis if both parties are reasonable and are willing to compromise fairly. That is not always the case, obviously, but it frequently is.

What are some problems you encounter in connection with child custody cases?

I will give a few observations, based on a number of years of experience. These are my opinion, and some may disagree with me. 1. "Dumping on" the other parent verbally, in writing, in emails, through third persons, etc., is hardly ever constructive. It can be very damaging when done in the presence of the child who is involved in the litigation. Not only can it skew the child's perception of both parents, but it can, and often does, have the opposite of the intended effect. I often ask clients in these sorts of proceedings how they would have felt if they had heard this kind of thing from their own parents.
2. Drugs and drinking. I don't know why, but it seems to me that excessive use of alcohol and drugs (both "legal" and "illegal") is becoming and more of a problem in custody cases. There is no excuse for a parent who is seeking custody of a child, or more parenting time, to engage in irresponsible use of substances, whether or not they are "legal" ones. If a person really expects to win more "rights" with regard to his or her child, it is axiomatic that that person should exercise substantial responsibility.
3. How involved should the parent be in the child's everyday life? People who are seeking the role of caregiver of children need to be quite involved with the children in most respects. This involves school, going to the doctor and dentist, transportation, nutrition, etc. For a parent to say that she or he doesn't even know the name of the child's teacher or coach is often indicative of a less than responsible relationship between the parent and child. It is important for a parent to prove to a court's satisfaction that he or she is fully engaged in the life of the child.
4. Why should "I" as a parent have to communicate with my ex-spouse? Why can't I just let the child arrange for parenting time? It is amazing how many times I have heard these questions and questions like them. It is a veritable "catch 22" for the child. If parents cannot even get along enough to be able to arrange plans for sporting events, turnover times, etc., what does this teach the child about how she should deal with her children's other parent in the future? Beyond that, though, how secure would a typical child feel if continually placed in between her parents? It simply is not fair to the child to be put in a position of dealing with difficult arrangements that her adult parents are not even capable of working through! If parents are not able to communicate with each other on these matters, it may be appropriate for them to consider counseling, and even to seek the aid of a court to order counseling.
5. What should people do when they have questions about child custody? One of the first things I think people should do in most of those instances is make an appointment with a lawyer to consider the questions. While the Child Support Enforcement Agency, the Children Services folks, school authorities, and others may be able to provide some help, none of those sorts of entities is an appropriate source of legal advice for moms and dads who are engaged in these sorts of problems. Even if one or more of these agencies may be involved, it is still important for parents to understand their rights and obligations, so it is often wise to consult with counsel in such matters.

Is probate bad?

My personal feeling is that the opposite is pretty much accurate in most situations! Probate is often very good. The probate courts in Ohio have varied jurisdiction, and that includes matters involving adoptions, guardianships, decedents' estates, filing of wills, etc. But there seems to be a lot of hub-bub these days about people wanting to "avoid probate." Generally, if a spouse dies leaving another spouse to whom she or he wants everything to go at death, there are a number of ways that transfers often can be accomplished without property going "through" probate. This may involve using "transfer on death" devices, setting up accounts with "payable on death" beneficiaries, etc.
But, especially in situations where things are unclear, where there is not a surviving spouse or where there is neither a surviving spouse nor surviving children, having property go "through" probate can be a great benefit. When property goes through probate, it needs to be valued and inventoried, it needs to be passed according to a will or statutory provisions, and the process is overseen by a court. This overseeing role is of great benefit in helping to normalize transfers, and render them legally appropriate. In other words, having the benefit of a probate court can be a wonderful thing from the standpoint of ensuring that things are more appropriately and more fairly handled. Is it always necessary in every case? Clearly it is not always necessary in every case, but in situations where people have questions about the best way to proceed, it is appropriate to bring them up with their attorneys. Planning for death may not be a fun thing, but it is an appropriate thing for people to do. It is wise to seek the services of your lawyer on such matters, often frequently, to continue to fine-tune your plans, and hopefully to avoid problems for your heirs when you are gone.

Is it true that if I pay something every month, my creditor cannot pursue me in a Court case?

This question is one I have heard more often than just about any other in my 40-plus years of law practice. In most situations, the answer is a very definite NO. This kind of question most often has come up in situations where a client owes a large amount of money, a bill collector is demanding a correspondingly large amount of payment, and the client feels that by sending $10 or $20 each month, that should stall the bill collector from being able to file a Court case. Ordinarily, the only time making a regular payment will prevent the other side from having rights to take you to Court will be a situation where you have an agreement to make a regular payment in that amount. While it is true that a creditor must credit your account with whatever payments it has accepted from you, it is also true that in many situations the creditor is not required to accept a small payment, and the fact that you tender a small payment does very little to mitigate the situation. If you have a question about this sort of thing, it is appropriate to raise it with your lawyer. 

If I borrow money or charge something on a credit card, and then do not pay for it, can the other side pursue me if I have not given some kind of collateral?

Generally, a creditor who does have rights in collateral has a more secure position than a creditor who does not, but the mere fact that a creditor has no collateral does not mean that it cannot pursue a debtor for money loaned or charged. I have had several people ask me questions about this during my practice, and I have been surprised by the level of misunderstanding I have encountered on this subject. If in doubt, debtors should consult counsel concerning their rights and obligations on such things.

Isn't it true that the Judge will protect me if I don't hire a lawyer to represent me in a divorce case my spouse has filed against me?

This is another question I have heard on numerous occasions. The fact is that the Judge cannot give legal advice to you, cannot represent you, and must follow strict legal guidelines in the handling of the case. The Judge is the person in the middle, and is the authority on things like what evidence will be introduced, what questions will be allowed to be asked, what decisions will be rendered, etc. Not only is it illegal for the Judge to offer legal advice to you, but it would seriously compromise the position of the Court if she or he were even allowed to do that (which she or he is not allowed to do). My personal opinion is that it always makes sense to talk to a lawyer before making a decision as to whether you should represent yourself in any legal proceedings. More times than not, I think it is a mistake to try to do it on your own.

Somebody has sued me and I have received a Summons, but I don't know what to do with it.

A Summons is a notice from a Court that you have been sued, and that you have a limited period of time to file an appropriate legal response to the law suit papers. All too many times, I have seen situations where people have ignored Summonses and then several months later had to deal with things like foreclosure of a judgment lien on a home, a levy of their vehicle, garnishment of bank accounts and wages, etc. Generally, if a person or organization has taken the time and expended the money to file a lawsuit against you, they are serious about trying to collect something. If you ignore the suit, the other side ordinarily will coast to an easy "win" against you by default. Often, once a default judgment is awarded to the other side because you have not responded, it is too late for you to contest the underlying obligation! Any time you receive a summons, you ought to talk quickly to an attorney so that you understand your rights, the applicable time limits, what legal expectations you should have, etc. Doing nothing is generally a very big mistake!

Will I have to pay, or can I expect to receive alimony in my divorce case?

First of all, while the term "alimony" still exists in taxation and bankruptcy law, it has been supplanted by the term "spousal support" generally for Ohio law purposes. This is a little complicated, because for many people the two terms mean the same thing or almost the same thing. For family law purposes, the question of whether spousal support can be expected to be ordered in a particular case is a multifaceted one. A number of considerations apply under Ohio's current laws, and there is no specific formula. Ohio does have a specific formula for calculating child support, and there have been efforts mounted on several occasions by folks who would like to see our legislature adopt a formula for spousal support - but that has yet to occur.For now, the Court typically will consider a number of different factors, such as the parties' respective income from all sources, retirement programs, education and ability of the parties, length of the marriage, age of the parties, physical condition of the parties, mental condition of the parties, the extent to which one party may need to stay at home with a child, the parties' assets and liabilities, the standard of living, lost income production capacity that may have resulted from a party's marital responsibilities, tax consequences, contributions one party may have made to the education of the other party, the cost of a spouse receiving education or training to be able to obtain appropriate employment, and other factors that the Court considers appropriate.
After reading the above list, you have probably already concluded this: every case is different. Just because Aunt Myrtle received spousal support of a certain amount of money, does not mean that you will, and just because Uncle Bill had to pay spousal support of a certain amount does not mean you will. Questions about spousal support are often quite involved, and this is an area where it usually makes good sense to confer at an early stage with legal counsel.

Isn't it true that, once a child reaches a certain age, she can choose which parent will have her custody?

This is a very common question, and is a subject about which I have probably seen more misunderstanding than understanding! The main standard for determining child placement is the best interests of the child. There are other factors, but the preference of the child is not the primary issue. A Judge will typically consider who the child wants to live with, interview the child in private, will typically hear evidence from the parents, may hear evidence from a Guardian Ad Litem or home investigator, but is never bound by the wishes of the child! Considering the various factors on both parents' sides, if the Judge finds that the child is reasonably mature, has clearly expressed a wish to go with one parent or another, and it would also be in the best interests of the child to allow that to occur, the Judge will likely honor the child's preference as to placement.
Perhaps one of the reasons for a lot of confusion on this subject in the state of Ohio is that we have had state laws in the past that allowed children of a certain age (for a while it was 14 years, and then for a while it was 12 years) to choose which parent the child would want to live with, but in all instances the Court still had to go on to find that allowing that choice was in the child's best interests. I can remember hearing about cases where a child would say she would want to change custody, and then the Court would discover that there would be a four-wheeler or a new bicycle waiting at the home of the other parent only if the change occurred! Maybe that is one of the reasons that the Ohio General Assembly took that out of the law - even though there still was a "best interests" test, people often misunderstood the application of the law.
Nevertheless, today the child's opinion is relevant, the Court can certainly consider it, but it is not controlling. The more mature the child and the better the opinion is expressed, the better chance generally exists that the child's preference would be honored, but it is not a "slam dunk" in most circumstances.
This is an area of law where consulting with legal counsel is often extremely important.

My ex-spouse and I settled our divorce case with a Separation Agreement. That basically was a contract between the two of us. We each promised to do certain things. Our divorce was granted in the past, and now we want to change some of the provisions in t

This is a very typical question we encounter in our Ohio practice. Generally, once a separation agreement is incorporated into a dissolution or divorce decree, it loses its character as a contract between the parties and is elevated to the status of a court order. Guess what? The parties are not the Judge and generally do not have the authority to modify a court order! If parties wish to enter into modifications of agreements that have been incorporated into orders of a court, the typical best way to try to accomplish that is to present a proposed agreed order to the Judge for the purpose of modifying the prior order. This is not possible in some situations, and can be a difficult and technical thing to do. Generally, it makes good sense to consult with an attorney early on in such cases. Many times, new court orders for the purpose of modifying old agreements can be done fairly quickly and without substantial expense. But, like most things involved with the law, it depends on what the circumstances are. Usually, the best time to talk to a lawyer on such matters is an early time.

I have told my lawyer a lot of positive things about my case, but I have done some things about which I am very ashamed. Do I really have to tell my lawyer about them?

Generally, one good way to lose a case is to keep your lawyer in the dark about damaging facts. If you have done something untoward or embarrassing, and you don't tell your lawyer about it, this means that your lawyer will not have an opportunity to prepare to deal with it at hearings on your case. When your lawyer is surprised at the trial, it likely is too late to construct an argument to counter the embarrassing situation, and probably too late to try to bring in witnesses to present the matter in your best light. If the other side knows something about your case that your lawyer doesn't, the lawyer will be unprepared to defend you on that matter. At least, if you tell the lawyer about the problem well in advance of hearings, he or she can help you decide what to do to try to avoid a bad outcome, if possible.
What you tell your lawyer is confidential and is not to be disclosed without your permission. You should never fib to your lawyer or withhold information from her or him! Ordinarily, these kinds of things will come back to hurt you. So, please make sure your lawyer has all the relevant facts in your matter, not just the ones that make you look best, but all of them.

When is the best time to consult with a lawyer about selling my house?

This is one with a simple and straightforward answer: the best time to consult with a lawyer before you sell your house is before you sign a listing contract, a sales agreement, and talk with a potential buyer or realtor. If you sign a listing contract with a realtor, you will be signing certain rights away, including whether you have the right to sell the property yourself without having to pay a commission; also, if you talk with a potential buyer about contractual terms, there may be a number of relevant legal things of which you are unaware, which should also be discussed.
The best time for you to talk to the lawyer is before you do any of these things, and by doing so, you can discuss and evaluate various rights and obligations that you will have. Also, if a realtor presents a proposed listing contract to you, it is generally advisable to have your lawyer review it before you sign it. All too often, people go forward with these sorts of transactions, signing the contracts, and then take them to their lawyers to review them after things are signed. Ordinarily, that is too late to make modifications!

I don't want to discuss embarrassing details about my life with people outside my family; that makes it very, very hard for me to deal with my lawyer; should I tell my lawyer embarrassing things about my case?

Almost everyone who talks with an attorney about her or his personal relationships, business dealings, family situation, or other matters or problems, feels a certain amount of reluctance to talk about more personal or private items. However, the lawyer probably knows more than you do about what is important in your matter, from a legal perspective. Your lawyer cannot do as good a job without all relevant facts as can be done with all the relevant facts of your situation. So, if in doubt, you should tell your lawyer what the situation is, even if some of the facts are embarrassing, and even if you are not sure whether or not they will have anything legally to do with the outcome of your matter. Surprise can be a huge problem in a court situation, and you do not want your lawyer to be surprised!

How Do I Post Bond if Arrested?

Generally, if the Court does not release you on your own recognizance, a monetary amount will be set that can be deposited with the Court to secure your release. Most Courts expect a Defendant to post bond through a bail bondsman. A bail bondsman is someone to whom you pay a fee to post your bond. This fee is generally 10% of the bond amount set by the Court. For example, if the Court sets a bond at $25,000.00, the bondsman will charge you 10% as fee or $2,500.00. This fee is non-refundable. If you post a cash bond yourself, without a bondsman, you would be required to post the entire $25,000.00, in our example, which money would be returned to you as long as you appear for all your Court proceedings.

Felony vs. Misdemeanor

A Felony is any charge in Ohio that is punishable by 12 or more months in prison. Felony charges are processed through the Court of Common Pleas. A misdemeanor charge in Ohio is punishable by no more than 6 months in the County Jail. Misdemeanor charges can be processed through the Court of Common Pleas or by other lower Courts such as County Court or Municipal Court.

If I am planning to get a divorce, what are some things I should typically avoid doing?

This is a good question, and there are plenty of things you should not do! Here are some of my favorites:
1. At least if you and your spouse are Ohio residents, you probably should not cancel medical insurance that covers your spouse. In many situations, a person is liable for his or her spouse's necessary medical treatments. I have seen situations where, apparently to "get even" with a spouse, a person cancels her medical insurance. Then, she has a serious medical problem which produces large bills, and the bill collectors ultimately go after the person who cancelled the insurance.
2. It is not a good idea to post nasty things about the other spouse on social media. More often than not, I view these kinds of postings as being unnecessarily abusive. They can go a long way toward helping prove that the poster engages in nasty behavior, which can amount to grounds for a divorce!
3. While we are on the social media subject, I want to talk about another related subject. A lot of people tend to post things that ultimately can be very embarrassing or harmful. Here is a case in point: a person involved in a heated divorce action is trying to prove she is morally upright and is a good steward of money, but she goes on to post photos of herself and her non-spouse on an expensive vacation, bragging that she paid for it! That doesn't endear one to the other side or to the Court.
4. Something that I have seen in many, many child custody cases is parents who argue that they should have custody, but are not very involved in their children's lives. Being involved includes things like going to school events, knowing and talking with teachers, attending and participating in children's extra-curricular activities such as theater, music, debate and athletics. Another area where many parents fall short is not participating in the children's medical or dental care. And, there are many parents who don't even know what size clothing their children wear! It's pretty difficult to prove you are the best custodian for a child when you don't know her teacher's name, whether she has visited the doctor in the last six months, or if she is a pitcher or infielder on her softball team.
Undoubtedly, there are a lot of other things people should avoid when it comes to the area of divorce, and this was by no means a comprehensive list. But, I hope it makes the readers think!

Why do you practice law in a small town instead of a metropolitan area?

Good question! Actually, I was born in Madison, Tennessee, which is part of greater Nashville. That's a metro area, at least by my definition! I have spent a lot of time in large cities during my life. I lived in Columbus, Ohio for about 4 years during law school and shortly thereafter. I have traveled to and spent significant time in a number of other high population areas including New York City, Los Angeles, Boston, Miami, Atlanta, Chicago, London, Paris, Madrid, Barcelona, and others. I absolutely love the cultural and sporting event offerings that large cities have to share. Those would include athletic events, art museums, professional foundations and associations, theaters, etc.
But, here's what those metropolitan areas don't offer, at least from my perspective:
1. The opportunity to live a half mile from my office.
2. A small-town environment for children.
3. Grocery stores and gas stations where I know many of the people I encounter each time I go in.
4. Absolutely no traffic jams.
5. On a similar point, no "rush hour" traffic delays.
6. The ability to know professionals who serve me, not just as people offering me services, but as acquaintances and friends: doctors, other lawyers, real estate agents, dentists, clergy members, bankers, retailers, people in all kinds of service industries, food servers and restaurant personnel, etc.
7. The ability to be acquainted with many of my legal clients on a more community-oriented level, and the privilege of encountering them frequently outside the office, such as at local restaurants and businesses.
8. Significantly lower office overhead.
Another thing about living in a smaller population area is this: there aren't that many other lawyers in my part of the state. That means that I know most of them pretty well, know what to expect from them, know their tendencies, and have a very good idea about which other lawyers tend to try to resolve matters expeditiously, etc. I think that's a real advantage to practicing law in a small town.
Finally, when people from urban areas ask me why I chose a small town despite being interested in the state bar association, state bar foundation and many of the cultural, sporting events and destinations offered by big towns, I tell them this: we all spend most of our time in our homes and in our residence communities. I feel more comfortable in a small town. If I want to go see a famous painting or an important baseball game, etc., I can always drive, fly or float (at least with the help of a ship)! I have nothing against people who have chosen to live in metro areas, it's just that I chose something else!

What are some of the humorous things that have occurred in your practice?

Well, I have to be careful answering this one. Pretty much everything we do is confidential, so I am going to change a few of the minor inconsequential facts, and certainly will mention no names, but here goes: 1. Once I was questioning a witness who was not particularly thin, and I felt someone tapping my shoulder. This was right in the courtroom. I turned around and I saw another lawyer I knew well. He bent down and whispered in my ear the following: "What are you trying to do Tilson, impress the Judge with the weight of the evidence?" Needless to say, it took me awhile to regain my composure. However, it sort of made my day.
2. This is another weight-related entry: Once, not long ago, I was jotting notes during a court proceeding. Suddenly, and with absolutely no warning, the chair on which I was sitting in the courtroom fell apart. Now, I'm not particularly light, but I don't think I've ever been heavy enough to break a properly functioning Courtroom chair. Nevertheless, it did provide a comic moment for me and the other people in the room. It also gave us a much needed momentary break.
3. This isn't really a single event, but is more a string of them: I won't mention names, but there are a couple of lawyers against whom I have had Court proceedings, whose company I find very enjoyable. Some of these people have styles of doing things that are both humorous and serious. They make the stress of the practice of law much easier to deal with. I guess I can't really give specifics without giving away potentially confidential information, but I want to thank Dusty Redmond and John Berger for their wit and skill in many of the matters I've had against them!
4. I once saw a very gifted lawyer get up in a Courtroom during a Motion argument. His opposing lawyer had given a tremendous argument in support of her client's position on a tangential Motion in a personal injury case. I had the next hearing and was just in the audience watching at the time. My acquaintance got up, said only these words, and then sat down: "Your Honor, my client's position is that that is wrong." My first impulse was to jump to the conclusion that his comment was entirely inappropriate, too short, and not responsive to the other side's position. But, then I started thinking more about it. I pretty quickly concluded that what that lawyer was really saying between the lines, was something like this: "What the other lawyer just said in her remarks was absolutely correct. I have no legal argument contrary to anything she stated. My client doesn't like the fact that the law is the way it is, and wants me to go on record objecting to it. I can't give any real legal argument about it, so I am going to tell the Judge in no uncertain terms that while what the other side said is legally correct, my client does not like it." The more I thought about that, the more I concluded that it was a pretty good response. And, it also made me smile. He could have responded with some off-the-wall frivolous rant, but had the wisdom and good sense not to.
5. On a final note, I will say that I'm sure every lawyer who goes through decades of practice has heard a lot of incredible stories from people involved in Court cases. Unfortunately, almost everything involving those stories would reveal confidential facts, so I can't get into those. But for anybody who is thinking about practicing law, and who thinks that lawyers live in a droll and boring environment, let me say this: you are very wrong!

What are some of the most difficult things for you about being a lawyer?

Without a doubt, the hardest thing for me is telling people what they don't want to hear. While it is very difficult to do, it is also a basic necessity for lawyers to have the intestinal fortitude to sit a client down, look her in the eye, and say "I'm sorry but you are wrong." It is also very difficult to tell someone who has a very good moral or common sense argument that the law takes a contrary position. Probably the most frequent sorts of "bad news" things I've had to tell people are these kinds of matters:
1. "I know the person in front of you shouldn't have stopped as hurriedly as she did, but Ohio's 'assured clear distance' policy makes you the one who is at fault because you rear-ended her."
2. "Yes, I am aware of the fact that you were not a wrongdoer in your marriage, and that it was your wife who decided to stray and to leave. But that has very little, if anything, to do with 'who gets what' or who will be child custodian, etc."
3. "I understand you are willing to spend a lot of money, time and effort in prosecuting this case, but the fact is that you are incorrect legally, and no amount of money will change that. Therefore, I won't take your case because it has no legal basis."
4. Here is probably one of the most frequent ones: "Yes, I know you bought this defective product that had foreign material in it, I know that the grocery store should not have sold it, and I know that it could have caused real problems. But I also know that you did not consume any of it and were not injured. Therefore, you don't have a $100,000.00 case. You also don't have a $50.00 case. That can of soda that included the 'foreign matter' probably cost $2.00, and that is what your case is worth."

Why did you go to law school?

I was 20 years old when I made the decision to become a lawyer. Up to that point, I thought very seriously about going into the ministry, medicine, and music. I was also interested in lawyer shows on television, and enjoyed writing and public speaking. I majored in religion in undergraduate school at Ohio Wesleyan University. I enjoyed theology, biblical study, learning about the various religions around the world, and reading the great philosophers and theologians. But I didn't have that "calling" or spark that prompted my father and my grandfather to become members of the clergy. I have great respect for people of the cloth, but I knew it just was not my thing.
I have lots of doctors in my family and among my friends. But I also know that I can't stand the sight of blood and would have an incredibly difficult time working with it! I played contact sports, got bangs and bruises like the other players, had broken bones, etc., and had very little fear of going up against other players. But any time I got even the smallest cut, it really bugged me! I had to admit that medicine was not my thing.
I love music. It is a very good stress reducer. After a tough day in Court, I often sit in my easy chair and play my guitar for a couple of hours. I also have had the privilege of performing in public a lot with my son and friends, for a lot of civic and other events. One thing I know about professional guitarists is that it is very tough to make a living doing that unless one is willing and able to go "on the road," or to locate in a very large metropolitan area or recording studio destination. Frankly, as much as I love playing music, I did not want to do any of those things.
So, I became a lawyer pretty much by the process of elimination. It is true that my parents encouraged me to do it, and it is true that I felt the draw of the legal profession, but it's also true that the reason I chose it is because I saw in it none of the negatives for me that I felt about the other possible career paths I considered.
All in all, I'm glad I made the choice I did. Law school was not fun, but it was challenging and very helpful. Parts of the practice of law are not fun. But, there is no job in the world that is all about fun. I think lawyers have the ability over a long period of time to help a lot of people and to do a lot of good. I'm glad I made the choice I made, and if I had to do it all over again, I would probably make the same choice!

What are some things a lawyer can do to establish better rapport with the "other side?"

I think the first thing is to treat the opposition with courtesy and respect. I have been practicing law for over 40 years, and I really don't think I've ever seen a situation where it was appropriate for one litigant to sneer at another, for a lawyer to yell at a witness, for an attorney to roll his or her eyes in a Courtroom, etc. Not only do those kinds of things generally have unintended negative effects on triers of fact, but they also frequently increase the tension between the parties and make the possibility of any kind of settlement much more remote. Being mean isn't the same as being effective.

What are some shortcomings you have seen in members of the legal profession?

That's a tough question to answer. Generally, members of the legal profession are hard-working, honorable and capable individuals who are very dedicated to their clients. But, here are some thoughts that come to mind: a. Sometimes I have seen other lawyers appear to believe that whatever their clients have told them has to be absolutely accurate, even if the people on the other side of the case vehemently deny such things. My personal feeling is that nobody's recollection is perfect, and that it is possible for people on all sides of the case to be mistaken about certain factual and other items. I think the most effective lawyers have very open minds, and have to recognize that even their own clients sometimes can be wrong.
b. Sometimes a lawyer cares so much about her or his client that the lawyer has trouble being objective. When an attorney feels that a client has been unjustly wronged, at times there is a tendency to discount everything that comes up that could be viewed as negative about the attorney's client. It can be almost as if the lawyer can't hear the negatives! Our profession is a difficult one, and we need to be focused and realistic about the fact that in most cases, neither side is completely wrong nor completely right.
c. From time to time, I have seen lawyers continually disparage and insult people on the other side of the case, apparently in the hope of convincing a Judge or Magistrate that there is absolutely nothing "good" about that person. Particularly in divorce and similar cases, that's a tough one to swallow, because that lawyer's client obviously at one point found enough good in the other party to establish a very close relationship with her or him! That fact alone operates in many situations to undermine such a lawyer's presentation.
d. At times, it has seemed to me that lawyers on the other side of a case have had the attitude that our job is about the fight rather than the result. Let's face it: our job is to resolve legal disputes, and it is not to act as gladiators just for the purpose of fighting. Unfortunately, on occasion I think I have seen the opposite.
Our American legal system may be the very best one in the world. However, it will never be perfect because it is, in all respects, run by human beings. No human being is perfect, so the system of necessity will occasionally fall short of its goals. Nevertheless, if we lawyers can try to recognize our own shortcomings and avoid some of these kinds of things, the system absolutely will benefit!

What is a typical work day like for you?

First I have to say that there is no single type of work day. Sometimes I will be in Court, and sometimes I will be in the office. Other times, I will be traveling to one or more Courthouses or other locations either to file papers, pick things up, have meetings, attend various kinds of events like appraisals, sheriff's sales, etc. But, here are some things I can relate about those different kinds of days: On a day during which I will be in Court the whole time, I get up pretty early, dress relatively formally, go to the office to pick up my file and other materials, drive to the Courthouse and pull out the file while I'm still in my car. Usually, I'll work in the car for an hour or so before going into the Courthouse, because the car is a comfortable and quiet place, and this gives me a chance to reflect on the upcoming case and review my final notes again. Then, I will try to go into to Courtroom and put my file on the counsel tables if they are available, go out and meet with my client, and maybe have a discussion with the opposing counsel. After that, I will usually go into the Courtroom again and work on the case. If the case takes all day, I will feel pretty drained and tired and will probably go straight home.
On days when we have a number of appointments on the book, I will typically go in to the office a little bit later. I won't be dressed as formally. I will meet with different people to discuss their situations. Some appointments are for new clients, and those involve getting to know each other and getting some basic information together about what the client wants me to handle. Some appointments are just for simple question and answer situations. Some appointments are for ongoing work where I will be discussing the status of a client's legal case and how she or he would want to move it along, etc. Also during office days, I set time aside to work on ongoing projects like written arguments, correspondence, etc.
Then, there are those other relatively "typical" days, like this one: First thing in the morning I may head to one county to file real estate deeds; then, I may head to another county to file probate paperwork; after that, I may travel to another county to file a new estate, pick up a Court Order, file a lawsuit response, or do something else. Sometimes I will travel for part of the day and then come back to the office to meet with clients or work on paperwork for the rest of the day.
One thing is for sure in our small town general practice: We do a lot of reading, talking, writing, and driving!

What are some of the most frustrating things about your law practice?

Most readers will assume that my answer would have to do more with people not paying me for services, conduct of other lawyers, Judges sometimes not seeing things "my way," etc. But, that's not the case! Here are some of my ongoing frustrations:
a. There is no "set" way to sign legal documents in Ohio! For example, deeds in Ohio have to be signed and notarized but not witnessed. Wills have to be signed and witnessed, but not notarized. Healthcare powers of attorney have to be either witnessed or notarized, but not both, and some people believe that it is appropriate both to witness and notarize them to minimize confusion. Many contracts have to be neither witnessed nor notarized, but for one reason or another, are witnessed or notarized or both. A living will has to be witnessed or notarized but not both. A financial, or statutory, power of attorney is supposed to be notarized but not witnessed. What this kind of thing means in the real world for me is this: if I am conducting a "signing" session for folks who are completing, for example, their estate plan, I have to be extremely vigilant to make sure that the proper witnessing, notarizing, etc., occurs. That's not easy! Sometimes people want to have casual conversations in these detailed sessions, but I have to avoid that in an effort at making sure everything is properly executed. That gets frustrating!
b. Another really difficult thing to deal with is that lots of people for some reason believe that it is ok to withhold important information from their lawyer. All too many people also seem to think they know enough about the law to decide what the lawyer does and does not need to know. This almost always results in something negative for the client. That may be the lawyer being completely surprised by something embarrassing in the Courtroom which would have been possible to explain away, but about which the lawyer had no idea until being blasted with it in the middle of a hearing, with no ability to subpoena a witness who could disprove the item, etc. How about this one: a parent has a drug problem, the other parent knows it, but the one with the problem doesn't want her lawyer to know because that might make the lawyer dislike her. Whether the attorney dislikes her is far less important than the fact that if the lawyer knew about the problem, he or she could deal with it head-on. Many times I have seen lawyers help clients get into recovery situations, improve their lives in the process, and actually be able to foster better relationships between parents and children. Beyond those sorts of things, this is not at all unlike a patient going into a doctor and failing to tell the doctor about chest pains or migraine headaches. A doctor can't appropriately treat a patient without knowing the facts and that is no different for lawyers! Clients should tell their attorneys absolutely everything related to their cases no matter how uncomfortable or embarrassing. Only in that way can a lawyer be reasonably prepared to deal with those problems as they arise in Court proceedings or negotiations. 

QUESTIONS AND ANSWERS ABOUT ATTORNEY FEES - PART ONE

This is the first in a four part series where we will discuss attorney fees. Today's post explains how we arrive at our hourly rate. The next will cover figuring lawyers' net income, charging a set fee or contingent fee, paying a retainer, paying the lawyer's bill and more. We hope this answers many common questions."A lawyer's stock-in-trade is time and advice," Abraham Lincoln said. In some limited circumstances it is possible for lawyers to charge a set fee for a particular item of work, but the majority of matters they handle are charged on a time basis. In other words, lawyers keep track of the amount of time spent on each item of work and charge an hourly rate for their time. They arrive at the client's bill by multiplying this hourly rate by the number of hours spent on that client's behalf. SETTING THE HOURLY RATE While Lincoln's definition of the lawyer's stock-in-trade is still accurate, several other factors beside the lawyer's investment of time must be considered in determining rates for legal services. In addition to the large amount of money spent by our firm for the purchase and remodeling of the building which houses our law offices, annually we must spend money on its upkeep and maintenance. Our office maintains several computers which have multiple software applications, a relatively complex telephone system, a law library, a fairly elaborate photocopying/scanning/faxing/sorting machine, a number of electronic typewriters, a postage machine, a broad-based filing system, and other related items. The remodeled three-story Victorian home which houses the lawyers, the staff, and the above-mentioned equipment, also contains conference facilities. Most legal matters require the services of a lawyer - and sometimes more than one lawyer - the secretarial staff and a legal assistant, and the use of various items of equipment. In calculating a client's bill, secretarial time is not taken into account, but is included in the lawyer's hourly rate. In other words, the money paid lawyers for their time covers the salaries of the secretarial staff, the operating costs of the various items of office equipment, and the use of office space for the conduct of business. There are certain expenses, however, which are not covered thusly, but are figured on an itemized basis, over and above the hourly-rate charge. These items include extensive photocopying work, postage for mailings, and travel expenses that involve considerable driving and/or overnight hotel accommodations. The charge for the work of legal assistants is also computed at an hourly rate, but this rate is considerably less than that for lawyers.

QUESTIONS AND ANSWERS ABOUT ATTORNEY FEES - PART TWO

FIGURING LAWYERS' NET INCOMEThe practice of charging for the lawyer's time on an hourly basis is a method of charging for the office's total work product. It includes the great majority of the work of the support staff, use of the facility, and implementation of the office's equipment. This is why the lawyer's net income cannot be determined simply by multiplying the time spent on a case by the hourly rate. The money paid the lawyers goes first to the payment of such overhead items as the support staff, telephone system, photocopying machinery, postage machinery, computer equipment, typewriter equipment, office space, heating, water and other utilities, etc. The lawyer's net income consists of what remains after the subtraction of the cost of all these items from that lawyer's total income.An individual unfamiliar with the foregoing facts may be overheard to say, "I don't understand why, when I make $10.00 an hour, I have to pay many times that amount to the lawyer for each hour of legal work; lawyers aren't worth ten times what I make." Such comments overlook the fact that the fund from which the lawyer pays the overhead expenses of the office is the money the client pays for attorney fees. The hourly rate is, in reality, the office's method of charging for all its services, and is not the amount the lawyer earns per hour.

QUESTIONS AND ANSWERS ABOUT ATTORNEY FEES - PART THREE

CHARGING A SET FEEThere are some instances in which lawyers charge a set fee for a service rendered. These might include a simple will, a land contract, or a mortgage and promissory note.CHARGING A CONTINGENT FEEThere are other instances in which a lawyer might represent the client on a contingent fee basis. In such cases the lawyer's fee consists of a percentage of the award recovered for the client. Representation on this basis occurs often in personal injury cases in which clients are suing for money. This method of fee calculation is common in situations in which the client would be unable to finance a relatively complicated negotiation or law suit unless the fee were based on the amount recovered at the conclusion of the case. Such cases may demand as much as two or three hundred hours worth of the lawyer's time. If clients had to compensate their lawyer in advance of the settlement of such a case, many of them could not afford their pursuit of justice in the courts. In many instances the contingent fee is the only practical way clients can afford legal representation in complicated matters.The settlement of a decedent's estate is another instance in which the lawyer's fee may be determined on a percentage basis.PAYING A RETAINERAt the present time, for many kinds of legal representation, including most law suits and negotiations, the client pays the lawyer a "retainer" and an escrow deposit at the beginning of the case. Once the retainer is paid, the client secures the lawyer's services under the terms of a fee agreement which may be put in writing. The lawyer will then keep track of the time spent on the case. Should the time multiplied by the hourly rate exceed the retainer and escrow deposit, the client will need to pay the excess. The client will ordinarily receive a monthly billing for any amount due over and above the retainer and escrow.Our monthly billings are handled on a computer, which does the mathematical computations based upon the time involved. The monthly bills are payable upon receipt. When the client fails to compensate the lawyer upon receipt of the monthly statements, the lawyer might resign from representation of the client for non-payment. It is important that the client's monthly bill be paid regularly and promptly.PAYING THE LAWYER'S BILLLawyers are not bankers. They sell legal services, not the use of money. If a client does not have the funds promptly to pay the lawyer's bill, the money should be borrowed from another source and the lawyer paid in full. In this way, clients who need to "make payments" can make them to a bank, which is in the business of making loans to those in need of them.

QUESTIONS AND ANSWERS ABOUT ATTORNEY FEES - PART FOUR

As this series comes to a close, several general observations need to be made at this time:
1. Since lawyers typically base their fee on the amount of time spent on a case, the charge to a client can be increased or reduced in a number of ways. For example, if the attorney is required to attend a number of hearings because the contending parties resist reasonable opportunities for settlement, the charge will ultimately be higher than it would have been otherwise.
2. If one party raises a number of technical issues, then hearings will be more lengthy, require more preparation by the lawyer, and, consequently, produce higher fees than would have been the case had the matters been less complex.
Many issues cannot easily be prevented because there are two sides to every legal proceeding and the client only has control over one side. Yet, the typical client can usually reduce the fees for a lawyer's services by making only those telephone calls and legal appointments that are necessary. While our office recommends that lawyers be used when they are needed, we urge that care be exercised by clients in deciding what kinds of matters require the lawyer's attention. We advise clients to keep an outline of issues they wish to discuss with their lawyer and to schedule telephone and office conferences with the lawyer on a regular basis. The alternative of calling the lawyer six or eight times, devoting one call to each issue, would not only take more of the lawyer's time; it would increase the client's bill. However, the cardinal rule on these sorts of matters is the following: If you don't know whether something is important but feel that it may be, always call the lawyer at that time without waiting to accumulate more questions. "Time urgency" is something that typically dictates contacting the lawyer immediately because there are a number of time limits, such as statutes of limitations, applicable to legal proceedings.
DISCUSSING THE LAWYER'S FEE
We welcome the opportunity to explain what we intend to do for our clients and to discuss our fees for legal services
If you have questions, please don't hesitate to ask them!

DIVORCE SHOULD NOT BE A MYSTERY - PART ONE

Many people, for one reason or another, have a number of questions about matrimonial law. And the word "divorce" itself has been something which has stricken awe and fear into the hearts of many of us. The greatest reason for the questions, awe and fear is simply that the law on this subject is not readily available to non-lawyers. Actually the basic elements of divorce law and practice are not as difficult to understand as the mystery surrounding them seems to indicate; this is written in the hope of acquainting you with some of these basic elements and considerations in the hope of removing the mystery (and in the process, some of the questions and most of the awe and fear) from the whole idea of "divorce." This series of blog posts will consist of 5 parts and we hope to answer several of your questions in the process. WHAT IS A DIVORCE? A divorce case is a lawsuit filed by one marriage partner against the other. Its major goal is to end the martial relationship. But it almost always has other important goals, and those are to settle questions of where children will live, child support, alimony (spousal support), child visitation and division of martial property and debts. Unless the parties have been separated for a long time or they agree they are incompatible, the person seeking a divorce must prove in court that his or her spouse has been guilty of certain wrongful acts. Your lawyer can give you an educated prediction as to whether the specific acts in your case are serious enough for a court to grant a divorce. If the parties have been separated for a year, this is all that must be proven in order to entitle one or both parties to a divorce. Things can be proven in court by several methods, but the usual way is by "testifying" (answering questions asked of the parties and their witnesses by the lawyers). WHAT IS A DISSOLUTION? A dissolution is almost equal to a divorce. The major difference is that in a dissolution, unlike a divorce, you and your spouse must agree that you want to end your marriage and sign a separation agreement settling the questions involving children, support, visitation, property rights and debts, etc., before any papers can even be filed in court. You need no "grounds" for a dissolution other than the fact that you both want out of your marriage and feel that your differences are permanent. But the court must find your agreement to be fair or it will not be approved. A dissolution is just as final as divorce.

DIVORCE SHOULD NOT BE A MYSTERY - PART TWO

WHO HAS TO GO TO COURT? In a dissolution, you and your spouse both must go to court and testify briefly. In a divorce, the person seeking the divorce has to appear in court with at least one witness; the other person often will not appear in court if the case is uncontested. If the case is contested, both sides and their witnesses ordinarily will go to court to testify. HOW LONG DOES IT TAKE TO END THE MARRIAGE ONCE A CASE IS ACTUALLY STARTED? Divorce cases are usually over within six or seven months. If a case is settled quickly, it may be completed within two to four months. If cases involve serious problems or if they proceed to higher courts, they may take a year or more. WHAT IS AN UNCONTESTED DIVORCE? There are two general groups of uncontested divorce cases: 1. Those in which the person being sued does nothing (files no papers or fails to appear in court).
2. Those in which the parties reach an agreement about all property and other issues. WHEN IS A DIVORCE CASE CONTESTED? A contested divorce case is one in which the parties cannot reach an agreement and in which both parties have entered court appearances and are indicating disagreement on some or all of the issues.

DIVORCE SHOULD NOT BE A MYSTERY - PART THREE

WHAT IS SETTLEMENT?A settlement is an agreement between the parties as to how everything involved in the case is to be resolved. If a settlement is basically fair and equitable to both parties, the court will probably adopt it into its Order. If a settlement is too lopsided in favor of one person, the court will not allow it.WHAT HAPPENS IF A CASE IS NOT SETTLED?If a divorce case is not settled, the court ordinarily will decide who gets what after a full trial of all the issues. Dissolution cases are always settled before they are ever filed. Divorce cases my be settled between the parties at any time up to the final hearing.WHAT HAPPENS IF A CASE IS SETTLED?If a divorce case is settled, it becomes uncontested and typically can proceed to finality much more quickly than can a contested case.CAN A DISSOLUTION EVER BE CONTESTED?A dissolution is always settled and uncontested when it is filed. But, if one of the parties should decide before it is final that he or she no longer agrees to the settlement, the case will be dismissed unless the parties quickly reach a new settlement which is acceptable to the court.WHAT IS A LEGAL SEPARATION CASE?This is a case where the parties remain married, but in which the court is nevertheless asked to determine who gets what and who pays what. A legal separation case involves virtually everything which is involved in a divorce case except the termination of the marriage.

Contact

Hottenroth, Garverick, Tilson & Garverick, Co., L.P.A.
126 S. Market St.
Galion, OH 44833

Phone: 419-468-5044
Fax: 419-468-1308
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