This week brings another call from a sexual assault victim: "Can I sue the guy who did this to me?"

Absolutely!  The law is intended to provide remedies for persons who have been sexually assaulted or harassed.  The usual problem is recovering money damages against defendants in these cases because there is generally no insurance coverage. Most policies contain an exclusion from coverage for criminal conduct. But what if the defendant has money or property? A court judgment can be satisfied by attaching their property and forcing its sale, or by garnishing a bank account!

Sexual assault victims have specific rights under Idaho law to collect money for their suffering – and that suffering goes on for years. The specific code section (I.C. § 6-1703) provides potential money damages for "past and future damages and may consist of emotional and physical pain and suffering, mental anguish, disability, loss of society and companionship, expenses for past and future therapy, and punitive damages" plus attorney fees and costs if you win.  Punitive damages are allowed to punish the person for his or her sexual crime.  That’s right – CRIME.  If you need more information on these cases – contact us.  We handle cases for sexual assault victims – and maybe we can help you find a way to cope with the damages you have suffered.

 This morning I get a new client who brings a letter he received from another lawyer, and "Former Deputy Prosecutor" building his DUI practice. Here is part of the other lawyer’s pitch:

"You need legal help.  The criminal process is very complex.  Once you have been charged with a DUI, you have 7 DAYS to take action to avoid immediate suspension of your driver’s license.  A criminal charge has jail time, court fines, probation, and loss of your driver’s license.  Call me immediately …."

Once he has your attention, the lawyer gives you his office and cell phone numbers to call at once, to protect your rights.  Kind of sound like a radio or TV advertisement for a used car?  Do you really think that hiring a lawyer who is chasing you will solve your problems?  Not likely!  In fairness – this guy is not alone. Dozens of lawyers use the internet listing of persons arrested and charged with crimes, then send scary mail solicitations for their business.  This kind of stuff leaves me cold!  Do you want to hire the surgeon who follows you home begging your business or the one who is so busy that he has to fit you in?  I know, DUI defense may not be surgery – but don’t kid yourself – it is risky to go with the lowest bidder.  All of which is to say – be careful out there when hiring any lawyer. There are differences in experience between us that may work to your benefit or detriment. And the guy who sends you that direct mail advertising his or her availability "24 hours a day, 7 days a week" in Spanish or English – may or may not be the bargain you are looking for.  Rule number one for hiring any lawyer – take a really deep breath.  Relax.  Allow yourself to think before you act.  Then, (Rule number two), talk to another lawyer.  A second opinion is a great thing.  Maybe even get a third opinion, because the truth is, if you are in deep trouble you need to hire the right lawyer, not the first one to send you a letter begging your business.

I get at least three calls a week from folks who think their civil rights have been violated and want me to take their case. "Cause" might be a better description than case for the most part. So why is it so tough to get an attorney to take a civil rights case? Here are my Top 4 Reasons Most Civil Rights Cases Can’t Find A Lawyer.

Reason number one – your civil rights have not been violated. The average person has a very broad view of his or her civil rights, much broader than provided for under the law. That view is almost always broader than the jury’s view! In general, you have a civil rights case if someone, acting under color of state law deprives you of a personal right protected and guaranteed by the United States Constitution or a federal law. The most common personal rights include freedom of speech, the right to vote, due process of law, equal protection, and unlawful discrimination. Civil rights laws apply to persons acting under color of state law, and even that part is tricky. Sometimes a city or agency can be a "person" but not always.  Civil rights cases often involve police brutality claims, and claims against employers who retaliate against a public employee for some reason – like the cop in Chicago who won $900,000 against his former boss for retaliating against him when he tried to investigate police corruption.  One of my Trial Lawyers College Classmates represents firefighters who have suffered from sexual harassment and retaliation.  These types of cases have civil rights components.

Reason number two – the government has immunity from much of the stuff that otherwise would be a civil rights case. Immunity comes in two varieties – absolute and qualified. So, you cannot sue the judge who treated you poorly during a trial. He or she likely has immunity that protects him or her from a lawsuit. The same is generally true with law enforcement officers, unless you can show that they acted with reckless indifference to you.  Their immunity is likely not absolute – but qualified immunity may also keep you from collecting, if it applies.

Reason number three – your damages may not be enough to merit filing a lawsuit. OK – let’s say that the cops locked you up for a day and that it was otherwise a violation of your civil rights (assume – due process). What money damages did you incur? Often when I ask this question the answer is "I lost a day’s wages."  Civil rights cases, like every other civil case, requires a weighing of damages and liability against the time required to prevail. If the damages are not high enough to attract an attorney – good for you! You may have gotten a bad deal, but the harm did not likely ruin you. 

Reason number four – these cases are incredibly complex and very tough to win. Jurors want to trust the folks we end up suing in these cases.  So winning a judgment requires a lot of time and commitment by the trial lawyer. Years ago I tried a case in which my client (a deputy) had not been given a hearing before he was fired. An inmate under his supervision had killed himself, and the city blamed my guy because he had not apparently checked on the deceased every 15 minutes. I spent so much time on the case that by the day of trial I literally wished I had not taken it. I burned thousands of hours before we even got to pick the jury! In the end we won the case – but the difficulty of the case weighed on me for years. It is easier to run a race on a sunny day than in the mud and rain! And I felt wet and muddy after that "victory." On an hourly basis, my ultimate recovery worked out to about $10 an hour for all the time I spent.

So there they are – My Top 4 Reasons Most Civil Rights Cases Can’t Find A Lawyer. Of course having said that – if you really HAVE a civil rights case maybe we can take your case. Got a question about your civil rights? Send us a comment or call us to talk about your situation.  We fight to protect your civil rights here in Boise, Idaho or wherever you may be.

 Ben Glass is this amazing lawyer who also understands marketing.  You know, selling yourself and your services. The word "Guru" aptly applies to Ben and I have been reading a lot of his info lately as I try to work on my own marketing. For years I just lived on my reputation. "Hey, aren’t you that lawyer I see on TV?"  I hear that a lot at the grocery store. Or, "You represented that Weaver guy, right?"  Guilty. But is this really anyway to sell legal services?  That is what we sell – service. I sometimes tell people I sell reasonable doubt for a reasonable price.  But the price is not so "reasonable" you might suggest, because there is undoubtedly a lawyer out there who will happily take your case for less money. So how can I differentiate myself from other lawyers? I mean, let’s face it, that guy with the full page ad in the phonebook looks more successful than the other lawyers in the book, doesn’t he. Lawyer yellow page ads are intended to make the lawyers look successful, but at what price? What if your case can’t be settled?  What if you need a real trial lawyer? What if the lawyer on the other side is not the least bit scared by that full page advertisement in the Dex directory?  What if you have to fight the battle? Ben Glass says that I have to focus on the things that make me different from those guys who will gladly take less money and do less before they plead you guilty or settle your injury or civil rights case for fifty percent of what it is worth,  Question one for me – what does my perfect client look like?  In the criminal context that client probably looks different than you think. My perfect client in criminal cases is the one who trusts me and is thankful for the work I do.  I have one in mind as I am writing this, and I am always honored to be his lawyer.  In the civil arena – my perfect client is – well kind of the same.  This client realizes how much he needs my help to settle the score and he gives me the room to do what needs to be done.  How do I get more of these clients and fewer of the ones who don’t really trust me and who want to tell me how to prepare and manage their own case? Well – I am not sure.  That is why I am happy there are lawyer / marketing guys like Ben Glass to help us through this stuff.  At least part of the key is to differentiate me from those other lawyers.  Got an idea?  Let me hear you.

I had a question this week about driving under the influence of alcohol or drugs: "Do I have to be driving to be guilty?"  Survey says – NO!  Idaho, like virtually every other state makes it a crime to be under the influence and to drive or be in actual physical control of a motor vehicle.  The statute – Idaho Code § 18-8004 does not require that you be driving, or that the car’s engine even be started.  If you are in the car and intoxicated and sleeping it off with the ability to physically control the car – like having the keys – you can be convicted. 

In a study released last April, the US Department of Health and Human Services estimated that last year 30 million Americans drove while intoxicated.  Thirty million.  That’s a serious road hazard if it is true.  And the mere fact that the government has the statistic shows us why a DUI charge is so serious. If you are convicted of driving under the influence you will lose your drivers license, be fined, face time in jail, have to undergo an alcohol evaluation and go to alcohol classes and treatment if ordered.  You will also have to figure out how to get to and from work without privileges and pay the costs of a fine and increased insurance.  It may not be a felony (assuming you don’t have priors) but it will be expensive and a serious impediment to your future.  So treat it seriously if you are charged with DUI.  And avoid it – a night of drinking and driving can leave you with a serious "hangover" for a long time.  Simple rule – do not drink and drive – grab a cab! 

 I had a call from a man whose son was facing serious criminal charges, and like each of us he was worried about the economic crisis. "I might just let him use the public defender this time, " he said. "Money is awfully tight!  Can you give me one reason why I should hire you?" Here are three reasons to hire the very best lawyer you can if you or someone you know is ever facing criminal charges. But first, let me tell you proudly I was a public defender, that’s where I learned the ropes. And there are some great lawyers serving as public defenders, many of them top notch trial lawyers. In the Ada County Public Defenders Office, some of the "old dogs" have tried more murder cases than the average lawyer has tried DUIs, and even the "young guns" spend many more hours in court than other defense lawyers. The Federal Defenders Office here in Boise is likewise well equipped with great, caring counsel. So why hire any private counsel?

First – you may not have a choice. Public defenders are tasked to represent indigent folks facing criminal charges.  Have a job?  Get your own lawyer – usually.  But don’t jump at that first letter in your post box advising you to "act now to protect your rights."  Direct mail is no way to pick your lawyer, especially when the come on is fear. Breathe deep and take some time to investigate the lawyer who wants your business.  How much experience does he or she have?  Ask how many times the lawyer has faced a case like yours. The right lawyer may actually save you money. An experienced lawyer will likely have faced the same legal issues before, so he or she will spend less time looking for answers, and you may spend less money. 

Second – you want a lawyer who will stand up to the prosecutors.  Those folks play for keeps. The state (or federal government if you are in United States District Court) is tasked with proving guilt beyond a reasonable doubt, so they use every tool they have to make their case. They have unlimited money and resources, and they are not afraid to spend those taxpayer dollars to develop their case.  They have detectives and experts who can find and analyze every detail.  So get someone on your side who knows and respects the other side, but who is not going to run from them.  Sometimes you have to stand and fight. An experienced criminal defense lawyer will do just that – fight for you.

Finally – your future may very well depend on how you handle the criminal charges you’re facing. A private lawyer simply offers more available time for your case than a public defender can ordinarily provide. Having time to spend with you, and your witnesses, and your evidence may make the difference between winning and losing. Innocent people are occasionally convicted of crimes they did not commit – and time spent now on your case will provide you the best chance of clearing your name, or limiting punishment if you are guilty. In the last year or so, we had three potential cases simply "not pursued" or "DISMISSED" because we had the time to fully investigate the charges and show the prosecutor that the evidence did not prove guilt.  Without that time spent to fill in the details, those cases might have had very different results, and the clients – very different futures.

Your future is valuable enough to invest in if you are facing criminal charges.  Hire the best qualified lawyer you can get, then dig in for the fight!  Got a case?  Let’s talk.

A bank can be sued for failing to conduct a reasonable investigation before initiating a criminal complaint against an identity theft victim.  In an unpublished opinion out of New Jersey, the appellate court reversed an order granting summary judgment to the bank, and held that the main issue – whether the bank had acted with malice in calling the cops on the victim, was a matter for the jury to decide.  The bank had opened an account with a $25 deposit from a man who had a State identification card that misspelled the name of the city, described a person who was nine inches taller than the victim, and did not identify his actual employer.  A fraud investigator did a minimal investigation, and then filed a complaint on behalf of the bank against the victim.  The real bad guy ran up $9,000 worth of bad checks, all against the victim’s credit, largely because he had the victim’s social security number and the fake identification.  Victim spent 13 days in jail, and when a real investigation proved he had not opened the account or written the checks, the case was dismissed.  Victim then sued the bank which had reported that he had created the false account and written $9000 worth of checks.  The trial court dismissed the case, ruling that there was not proof the bank acted with malice.  Malice in this context is not "bad will" but rather the doing of an intentional act.  Here’s what the court said:

The kind of malice I speak of means the intentional doing of a wrongful or unlawful act without just cause or excuse. Such malice is an intentional act which an ordinarily cautious man would realize that under ordinary circumstances damage would result to one’s person or property, and which does in fact damage another’s person or property. The element of malice may be inferred from a lack of
reasonable or probable cause.
 

Back to the drawing board for the bank which should simply pay this guy for his grief.  They did virtually no investigation, and as a result, he spent 13 days in county jails trying to "prove" that he was not the person who stole from the bank.  I love the fact that the "expert fraud investigator" hired by the bank did such a poor job – but proceeded in the face of real evidence some other person was responsible.  And there is that other message here for all of us – protect that social security number!

This case is similar to one I handled this past year in Utah.  There, a district judge dismissed a case before the jury could decide whether a prominent Salt Lake law firm had acted with malice when it falsely reported to an insurance company (and its client) that my client (a partner in the firm) had over-billed for his work.  That allegation was false and unfounded, but it had the effect of destroying the client’s ability to work as an insurance defense lawyer.  His twenty-five year career doing insurance defense work was destroyed by the falsehood.  Their proof – he had not signed into his computer during times that he billed the insurance carrier.  You know, like when he was in court!  The malice we had to prove – and I believe we proved it – is the same as here.  Not evil or bad will (though I think we also proved that), but an intentional act done without ordinary caution.  Been in a similar situation?  Call us or fill out the contact form.  Maybe we can help.  We haven’t given up in Utah, case is on appeal and we expect to win.  Another lesson learned – never give up.

News today by mail adds me to those lawyers selected for inclusion in the 2009 edition of The Best Lawyers in America in both specialties of Non-White-Collar Criminal Defense and White Collar Criminal Defense.  Special thanks to my peers for their vote of confidence in the criminal defense services I provide.  Now back to work – maybe on your case.

I am not a psychologist – and I don’t play one on this blog, but the Idaho Court of Appeals has decided that criminal defense lawyers need to pay attention to their clients’ mental states at the time they enter a plea of guilty.  In Ridgley vs State of Idaho, decided August 6, Judge Lansing held that the appellant’s post trial challenge to his plea of guilty to Lewd Conduct with a minor under sixteen raised a question of fact as to his emotional state and his lawyers competence.  The district court had dismissed the petition for post-conviction relief, in which Ridgley claimed his lawyer did not pay enough attention to his emotional state when he entered the plea.  Every client who is charged with a crime is depressed to some degree, but this was different.  The conduct he pled guilty to occurred two days after Ridgley’s wife died, and he was a suspect at the time.  He entered the plea just sixteen days after her death.  His lawyer met with Ridgley for less than an hour before he pled guilty, "did not provide Ridgley a copy of the police report, did not contact potential witnesses, did not watch or listen to tapes of interviews of the victim, and failed to advise Ridgley of potential defenses."  So that doesn’t sound like great defense work, and in itself, might have been enough to send the case back to the district court.  Combined with the affidavits and evidence offered the district court to prove that Ridgley’s mental state was equally suspect, the decision is not entirely surprising.  

So if you are facing serious felony charges like Ridgley was – spend time with the lawyer who is representing you.  Don’t shortcut the process.  Tell that lawyer everything so you get the benefit of his or her experience.  

I am in the process of looking for hidden assets of a potential judgment debtor (assuming we win the case and get the judgment) and came across another blog that focusses on this challenge.  Check out Asset Search Blog for info on this subject.  Very interesting.  In my case, we are looking for assets to satisfy a potential fraud and racketeering judgment.  This is always the problem – get the judgment but how do you get the client’s money?  Anyway – if you are looking for this type of info, take a gander at Asset Search Blog.