Wednesday, April 26, 2017

The Taxman Cometh

Taxes were due a week ago and tax day always reminds me of my first advocacy client.  In my second year of law school (making me a 2L in legal jargon), I secured a job in a nonprofit dedicated to serving individuals with disabilities.  My role within this organization was to advocate for clients who were suffering from discrimination for their disabilities.  The executive director had many, many years of experience advocating for disability rights.  She supervised my efforts and I also worked closely with one of my law professors.

My first advocacy client was a sweet, mousy woman who tiptoed through life desperately trying to avoid attracting notice.  She struggled to say 'no' to anyone and that tended to get her into trouble.  Some rather unscrupulous businesses convinced her to sign some contracts that she did not understand and that cost her more money than she could afford.  Due to her ongoing desire to avoid attracting notice, she lived with this situation for quite some time before seeking help.  She has several cognitive and intellectual disabilities, so someone suggested that she participate in a support group our nonprofit organized.  After a few months of coming to our events and forming relationships with my coworkers, she asked for advice on how to handle her situation with the unscrupulous businesses. This is how I was introduced to her.

In Tennessee, all parties to a contract must have the "mental capacity" to enter into a contract.  To oversimplify, this means that everyone must be able to understand that signing a contract has consequences, including the legal requirement to comply with its terms.  After interacting for about five minutes with my client, I realized that she most likely did not have the mental capacity to enter into these contracts.  The individuals who induced her to sign these contracts should have come to this realization as well.  Obviously, they chose to accept her signature.

As this was my first advocacy project, I spent almost 30 hours conducting legal research and another 10 hours writing a letter to these businesses laying out the case that my client did not have the mental capacity to enter into these contracts and proposing that she buy out of the contracts at what we believed was a reasonable price (a similar project would probably take me less than 5 hours total today).  My organization's executive director and my law professor were heavily involved in the letter-writing process and we ended up with a powerful end product.  In the end, none of the businesses chose to pursue the matter and accepted our terms.  We were ecstatic.

Over the next two years, I was privileged to watch that client blossom.   Some of my other coworkers helped her secure employment, set up a strong support network, and to otherwise help her get on her feet.  She was able to find part-time work as a receptionist and to slowly grow a side business.  Shortly before I graduated law school, she came into my office one day to show me her tax return.  She owed an amount less than $20 and she was in tears.  At first, I thought she was upset because she would not be getting a tax refund, but she was in tears because she would be paying into the tax system for the first time in her entire life.  She felt like she was finally contributing something to society and that realization made her literally weep with joy.  "Joy" is not a word I have ever used before in connection with paying taxes.


Advocacy is empowering.  We fought for our client and this communicated to her that we recognized her inherent value.  She was able to score a win and feel like a winner for the first time in a long while.  That feeling spurred her to take on more challenges in her life and to succeed at them.  She turned her life around in a little over a year.  This lesson has paid dividends in my criminal defense practice.  I have represented innocent defendants and I have represented defendants who were very guilty.  Even with the guilty clients, I am always amazed how positively defense attorneys can impact their clients by treating them with respect, with dignity, and by fighting for them.  I have yet to see someone turn their lives around to the extent that my first client did, but I have a long career head of me yet!  

Wednesday, April 19, 2017

Mischief is a Superpower

I have a client whom I have represented 3-4 times in the last several months.  It is always the same charge: disorderly conduct.  He appears to have several intellectual disabilities, he is old, he is alone, and he is in the habit of taking long walks around his neighborhood*.  His neighbors find him to be strange and are in the habit of calling the police and the police are in the habit of arresting him and charging him with disorderly conduct.  The District Attorneys are in the habit of 'letting' him plead to the charges after a night in jail and go home.  His defense attorneys are in the habit of advising him to take that deal.  I got sick of watching my client be subjected to harassment and to mounting court costs, so after getting his agreement, I decided that some alternative tactics were in order.
First Step:  I told the District Attorney that I needed time to consider the offer.  This surprised the DA as most defendants will take any deal and sign any paperwork in order to go home and in order to avoid further jail time.  This also surprised the arresting police officer.  Every criminal defendant in the United States has a right to confront his or her accusers in court.  The arresting officer is almost always an important witness in a criminal hearing.  So, he was in court that morning, but he fully expected that his presence would not be required for very long that morning.  

Second Step:  I sat down in the comfortable chairs reserved for defense attorneys and the arresting officer sat down in a hard-backed and hard-bottomed bench.

Third Step:  I pulled out a volume of Justice League comics I had bought second-hand several weeks prior and had kept in my briefcase until I was appointed to this client again.  I did not have any other court business that day, so I leisurely leafed through it.  The arresting officer was visibly frustrated.

Fourth Step:  I finished reading and pulled out a second volume of Justice League comics.  The arresting officer went from visible frustration to outright anger.  

Fifth Step:  Lunch break.  Turkey on sourdough bread.  I made the sourdough myself.  It was excellent.

Sixth Step:  Back in the courtroom, I pulled out a collection of Archie comics.  The arresting officer stomped out of the courtroom at this point, but he could not leave the courthouse.

Seventh Step:  Last call.  The judge asked me and the DA what we were going to do on this particular case.  The DA indicated that I was considering a plea offer.  I told the judge we were rejecting the offer and would be proceeding to a hearing.  The judge and DA were dumbfounded.  The arresting officer was jubilant and he was mentally preparing to roast my client alive on the witness stand in revenge for having to wait in the courtroom all day.

Eighth Step:  I pointed out to the judge that the neighbors who called the police and had given the police statements were not present in the courtroom.  I further pointed out that the way the warrant was written, the neighbors were key witnesses in the case and that the DA would need to issue subpoenas to compel their presence in court to give testimony.  I made an oral motion to reset the hearing to one week from that day.  The judge granted my motion.  The arresting officer realized to his horror that he would have to go back to his witnesses and compel them to come to court to testify against their wishes.

Ninth Step:  I came back to court a week later and graciously accepted the DA's offer to dismiss the charges entirely.  I told him and the arresting officer that in the future, all such charges against my client would be result in a hearing and I would demand that the neighbors would be subpoenaed as material witnesses.  They said they understood.


One of the rights U.S. citizens enjoy is a right to due process.  If they are charged with a crime, they are entitled to a trial and to confront their accusers in court.  This has the double benefit of both giving an innocent defendant the opportunity to prove his or her innocence and to discourage frivolous accusations.  We may not have struck a major blow for civil rights, but it is a good example of our system working to protect the innocent...as it was originally designed to do.  Although, we were a bit unconventional in how we went about using the system.

*Outside of court, I spent 45 minutes solving my client's overarching issues regarding loneliness and the lack of a solid support network.  I found a community center that hosted weekly events for senior citizens.  The center partnered with a local church to shuttle these folks to the events.  He is not so lonely anymore.

Mama Bears

Every criminal defense attorney secretly aspires to be Atticus Finch.  In reality, we spend far more time babysitting our clients to a good ...