More Fun With TBLS

Here’s another sample question from the Texas Board of Legal Specialization:

In federal court, where a hearsay statement is admitted, the credibility of the declarant may be attacked by:

a. Prior convictions, subject to Rule 609;

b. Opinion and reputation testimony concerning the declarant’s truthfulness;

c. Prior inconsistent statements;

d. Specific instance of conduct, if probative of truthfulness or untruthfulness;

e. all of the above except d. 

The answer is found starting in Federal Rule of Evidence 806:

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

That is, the credibility of the out-of-court declarant can be attacked with prior convictions (Rule 609), opinion and reputation testimony (Rule 608(a)), and prior inconsistent statements (Rule 613), but not specific instances of conduct other than convictions (Rule 608(b)) unless the party against whom the statement calls the declarant as a witness, in which case he may cross-examine the declarant about specific instances of conduct other than criminal convictions.

So the best answer is (e).

TBLS’s answer?:

c. Rule 806, Federal Rules of Evidence, Note that Rule 608 would not apply because specific instances of conduct may not be proven by extrinsic evidence. 

That one, I’m willing to attribute to a typo. Someone typed “c” for “e.”

My Evaluations from the Advanced Criminal-Law Course

Screen Shot 2012 10 16 at 1 09 32 PM

Highlights of audience comments:

• "The 'Interesting Legal Questions' only served to confuse me." (There's a fine line between interesting and confusing; I cross it occasionally.)

• "Presentation was well done. What a shame that his 'biased liberalism' had to be so blatant it detracted from an otherwise good discussion." (You stand up and fight for the right of devout "judge not" Christians to serve on juries, and they call you a biased liberal.)

• "Speaker has unique and interesting style kind of like Led Zeppelin." (I am not entirely sure what that means. It's been a long time since I rock and rolled.)

Here's the video, if you're interested.

New York City? Get a Rope.

Here is a sample question from an exam I’m preparing to take on Texas criminal law. The question was provided by the authors of the exam:

In a jury trial the assistant district attorney calls the defense attorney to the stand to attempt to establish that the defendant visited the attorney at a certain time and location in order to demonstrate that the defendant was in town on the day of offense. The defense attorney:

a. May refuse to answer the questions because of attorney client privilege

b. Cannot be forced to testify

c. Can be forced to testify, but he cannot be questioned about the physical characteristics of the client during that visit, e.g. complexion, demeanor, and dress.

d. Can be forced to testify regarding physical characteristics of the client during that visit including the physical characteristics of the client such as complexion, demeanor, and dress

e. a and b 

This question invokes the “special rule of privilege” in Texas Rule of Evidence 503(b)(2):

In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. 

Where the defendant was, and his physical characteristics, are “facts that came to the lawyer’s knowledge by reason of the attorney-client relationship.” A court might order the lawyer to answer, and the lawyer might find herself in need of the strike force, but the rule of privilege is clear, and the lawyer would be violating the disciplinary rules by answering the prosecution’s questions without a court order. Not only may the lawyer refuse to answer the questions, but she must. Answer (a) is clearly correct; (b) is arguably correct as well, which would make (e) the proper answer.

That’s not the answer that the writers of the exam want, though. Here’s their answer:

d. United States v. Kendrick. 408 F. Supp. 1169 (S.D.N.Y. 1976).

There is so much wrong with that.

First, U.S. v. Kendrick says no such thing. The case isn’t about “the physical characteristics” of a client during his visit to a lawyer. It’s not even about a client visiting a lawyer. It is, rather, about a client telling a lawyer his address and the lawyer trying to protect that information based on privilege.

Second, the lawyer in U.S. v. Kendrick wins that battle: he cannot be compelled to reveal his client’s location.

Third, U.S. v. Kendrick is not decided under Texas law. The court cites Wigmore on Evidence for its definition of privilege:

The scope of the privilege, as set forth by Wigmore, has been adopted by this Circuit as follows: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” Wigmore, § 2292.

Texas’s special rule of privilege is not recognized by Wigmore, and was not at issue in Kendrick. The answer to the question would be much different under Texas law (whether it is (a) or (e) might depend on our definition of “cannot” and the intestinal fortitude of the lawyer—is she willing to be held in contempt for the sake of her client’s privilege?).

I’m about to take an exam, the authors of which apparently have no idea what they’re doing. Should this worry me?

Gurstel Chargo: Welcome to Hell, Merolo and Kulpers [Updated X2]

Minnesota debt-collection mill Gurstel Chargo announces that it has hired two new associate attorneys in Scottsdale, Katherine Merolo and Benjamin S. Kulpers.

I wonder if Merolo and Kulpers know what they’re in for:

I am a recent (now past) employee of this law firm. FDCPA violations happen on a regular basis, and I just wish that more people knew their rights, because suit could be legitimately brought daily against the practices of this firm.

They do not train their employees, and supervision of violations is not a regular practice until suit is brought against them. They are happy as long as the money flows in. Illegal garnishments are regularly sought and granted, and they simply have them reversed when they find out their mistake, without any thought to the harm that comes in the meantime (they tend to favor the end of the month right before many people’s rent comes due).

There are good, honest attorneys that work there who are over-worked in a factory-style practice that does not allow them to properly supervise their practice, but the majority of the lawyers they hire are so young and inexperienced with no supervision or mentorship  that they don’t know what they’re doing, and are under such considerable pressure from above to produce collectible judgments that they resort to questionable tactics with tacit approval from above, as is evidenced by the actions of the attorney in this case.

Debt collection law firms like this one prey on the fact that people in general do not know what rights they have and are so in awe of legal papers served on them (and obviously in such dire financial straits) that they don’t seek legal counsel. And while I admit that there are many plaintiffs in FDCPA cases who are simply working the system, the vast majority of honest-to-goodness violation cases do not get filed because people do not know the law. It’s cases like this that raise public awareness and will hopefully give victims the knowledge to seek legal counsel when they are illegally harassed and intimidated by predatory debt-collection practices.

“Prior to joining the firm, Ms. Merolo, [sic] worked at a mid-sized law firm where she provided documentation review for a variety of litigation matters,” so she should be familiar with being “over-worked in a factory-style practice.”

“While attending law school, Ben clerked for the Maricopa County Attorney’s Office.” Having lain down with those dogs, he should be familiar with overbearing, self-righteous, unethical lawyering.

Best of luck, guys.

[Update: Now Gurstel appears to have taken down its “news + articles” page. Cached copy of this particular article is here. Also, it appears that this announcement may have been from some time in 2011, so if they have souls Merolo and Kulpers have quit in disgust by now.]

[Update 2: Kate Merolo writes:

Mr. Bennett,

The information posted in your blog entry entitled “Welcome to Hell, Merolo…” is inaccurate. I would very much appreciate you post a correction and apology and/or remove all references to me completely from any and all blog posts and Twitter posts (and any other posts I am not yet aware of).

The Gurstel press release to which you refer was posted in early 2011. A quick Google search of my name would have lead you to my LinkedIn profile which clearly shows I am not and have not been employed by Gurstel for some time.

I can appreciate your dissatisfaction with a former employer, but there is no reason to involve me. I have moved on with my career.

Please let me know that you have received my email and will take the requested action. It will be very much appreciated.

Regards,
Kate Merolo

]

Meet Gurstel Chargo, “Honest Americans” {updated twice}

{Update 9 August 2013: The Colliers appear to have dismissed their case against Gurstel Chargo. The Stipulation to Dismiss says in part:

2. Gurstel Chargo performed no action that was in violation of the FDCPA;

3. The telephone call referred to inthe Complaint and the central subject of this lawsuit was not made by Gurstel Chargo, any employee or affiliate of Gurstel Chargo, or anyone acting on behalf of Gurstel Chargo; and

4. Plaintiffs agree to take nothing as a result of this action and agree that Gurstel Chargo neither paid anything nor promised anything to reach this agreement and dismissal.

}

From Minnesota law firm Gurstel Chargo’s “what we do” page:

Our practice blend is uniquely designed to provide businesses with financial solutions and asset recovery. Our focus provides sophisticated and occasionally unlikely solutions to our clients fiscally driven matters.

From their meaning-free-mumbo-jumbo-laden “creditors rights” page:

We have developed sophisticated systems and instituted soft-touch collection practices that produce favorable results.

Gurstel Chargo’s response to a disabled veteran trying to recover $6,000 of ungarnishable money that Gurstel Chargo had garnished, after the firm had told a judge that the firm would release the money “right away”:

Fuck you! Pay us your money! You can’t afford an attorney. You owe us. I hope your wife divorces your ass. If you would have served our country better you would not be a disabled veteran living off social security while the rest of us honest Americans work our ass off. Too bad; you should have died.

(Courthouse News Service.)

An “unlikely solution”, sure, but “soft-touch”? “sophisticated”?

The veteran, Michael Collier, can now, as it turns out, afford a lawyer. Floyd Bybee of Chandler, Arizona, has filed suit against Gurstel Chargo for, among other things, violating the Fair Debt Collections Act. (Complaint.) Gurstel Chargo is being sued in eight other federal cases in Arizona, Minnesota, and Ohio.

The articles discussing this story describe it as a “debt collector”—which it is—but it’s also a law firm, which means it is held to higher standards. If Gurstel Chargo aren’t already facing grievances over this, they should be.

After all, accountability matters (that link is a must-follow web archive of the page that Gurstel Chargo took down right after I published this post).

{Update: Gurstel Chargo’s lawyer, Andrew D. Parker, says that the Scottsdale lawyer “acted professionally in all of his dealings with Mr. Collier and in the handling of this ease.” In light of the fact that the Colliers have amended their petition to omit the allegation that Gurstel Chargo’s Scottsdale lawyer had told them in the parking lot that they would need to hire a lawyer to get their money back (and that they now attribute that statement to the same legal assistant who told Collier, “fuck you!”), I have no reason to question Parker’s assertion. So I’ve removed that allegation and the unfortunate lawyer’s name from this post.

Parker is confused about who I had said made the “fuck you” statement. That sentence in my original post may have been written in a way that could confuse a careless reader; it should be clear now: it is the firm that Mr. Collier has alleged made the statement—an assertion, by the way, that Parker does not deny.

Parker also claims that my post “has resulted in threats being received against law firm staff.” I doubt that I have that sort of influence; I hope that I don’t. I suspect that it would be more accurate to say that treating a disabled veteran badly has resulted in threats against law firm staff. Which is itself unfortunate, but not attributable to my little blog.}

Great T-Shirts, Quick and Cheap

Last December a guy named Sam who works for a startup t-shirt company called ooshirts emailed to offer me three free t-shirts of my own design.

I put together a design with a molotov cocktail on the front and “No sense of humor when it comes to totalitarianism” on the back, along with the URL of this blog. They took about a week to come in, and were as well made and as well printed as any t-shirts I have. I gave one to Clint Davidson, one to Mike Stuart, and kept one for myself.

I intended to write a review of the shirts, but wanted to see how they held up first. I’m happy to report that both mine and Mike’s have held up very well to almost a year’s wear (Mike wore his to karate class last Sunday).

The price is right, too, even if Sam doesn’t send you three for free—$27.16 for a single full-color-front-and-back t-shirt, $24.16 each for two or three, $21.66 each for four or five and progressively less per shirt for shirts bought in greater numbers. Prices are lower for fewer colors or sides, higher for heavier t-shirts, hoodies, sweatpants, and so forth. And free shipping on all. I don’t know how prices compare to other options for volume orders, and you’ll forgive me sounding a little advertisey in this post, but where else are you going to get a single high-quality t-shirt printed to your specs for less than the cost of your average concert T? (Hmmm…why buy the concert T when you can print your own?)

Next time I need a few t-shirts (I may design some for my biggest campaign contributors) I’ll go right to ooshirts.

Thanks, Sam.

We Are Afraid to Name and Shame

Houston DWI lawyer Paul B. Kennedy (The Defense Rests) complains about Carpet bagging [visiting] judges:

In the meantime, those who were tossed out of office by the public continue to preside over trials because their buddies and former colleagues keep using them as visiting judges. It’s a process that needs to stop.

While it is true that the drafters of Texas’s constitution wanted judges to be subject to the will of the people, I don’t agree with Paul that judges whom voters have rejected should not be able to sit as visiting judges. The drafters of the Texas Constitution got it wrong. As a result of our partisan judicial elections, the voters hire many incompetents (see, for example, Ruben Guerrero) and fire many great judges (see, for example, Caprice Cosper).

The point, in my view, is that our sitting judges—the “buddies and former colleagues” that Kennedy refers tocontinue allowing lousy former judges (whether retired or fired) to preside over trials.

Why?

In his post, Paul doesn’t name the visiting judge.

He doesn’t name the sitting judge.

He doesn’t even give the number of the court.

That’s why.

Fun With UCE

“Lee” wrote to offer me a smoking deal:

DWITicket.com is a premium domain available for you to attract online customers. This URL defines an entire, high revenue, industry and you can own it – whether to enhance your own practice or build a directory of DWI attorneys.

DWITicket.com is available for just $98,777

Iif you’re the sort of lawyer who would think for even a moment of dropping a hundred large on a domain name, I’ve got a better proposition for you: buy DWI-ticket.com (DWI ticket? Are there still places where DWI is a mere ticket?) from me for a mere $49,000 and you can spend spend the balance on hookers and blow.