Thursday, February 22, 2007

Pre-paid Legal

One sure thing about starting a solo practice, there will be gaps in your cash flow. There are three hurdles to overcome: finding the work, doing the work, and getting paid for the work. The only way to develop skill at all three is experience. Eventually you learn how to get paid (mostly by figuring out why you didn't get paid a bunch of times), but in the meantime it's financially stressful. One way to relieve that stress is taking a part-time legal job, which I have done four different times. I have been an Administrative Law Judge at the Parking Violations Bureau, taught paralegal courses at Queens College, worked for a taxi drivers union, and worked at a "union pre-paid legal plan". Each of these provided steady money, experience, contacts, and most stories.
The story that follows is true, only the names are changed....


One year into my practice I answered a Law Journal ad for a part-time attorney for a "pre-paid legal plan". The attorney who placed the ad was the union attorney for Local 831, a loose coalition of shipping clerks, mail room personnel, local delivery drivers; and warehouse workers. The lawyer, Stewart Miller, represented the union in labor negotiations and other union matters.
This union could not make great strides for its members on salary or working conditions because frankly, what leverage did they have? They were just assorted workers in assorted small companies. But the union did provide two valuable benefits to membership, a medical plan and a legal plan. Union headquarters was a two story brick office building on Queens Boulevard in Elmhurst. In the building were all the doctors, dentists and podiatrists who union members could use. It was actually a smartly run little operation, an in-house HMO ahead of its time.
The union also offered a legal plan, where members were covered for an array of legal services. Stewart received an annual flat fee from the union to offer this service. Think about the economics of this. He agreed to provide legal services for everything and anything the members needed, and within his budget he had to hope they didn't need too much. His bottom line would go down when he had more cases. The types of cases reflected the demographics of the membership: debt collection cases (not as the sue-er, always as sue-ee); Family Court (usually Welfare suing a father to pay for kids on welfare); immigration; uncontested divorces (which to my nose always smelled immigration related); and minor criminal cases.
According to the law journal ad, Stewart wanted a part-time attorney to work 15 hours per week, including 10-2 on Saturdays and one court appearance per week. He would not be there with me, so I would use his office during my "office hours". His office was small and windowless, on the first floor in the back. Not too uncomfortable really. He shared a secretary and receptionist with the medical office. His secretary, Lillian, was a very experienced legal secretary, and ran the law office day to day. I thought I could learn a lot from her. I also liked the location, the hours and the pay, so I took the job.
The idea, Stewart explained, was to resolve the cases quickly and with as little real legal work as possible. Simple economics really, if there is a way to get it done simply, find it and do it. Of course, the clients often had different ideas. When you are not paying for something directly, you want your moneys worth. As I soon found out.
Tom Johnson had a DWI (driving while intoxicated) charge pending in Brooklyn. Stewart had been in court with him several times trying to get a plea bargain, without success. The problem was, Tom refused to plead guilty to ANYTHING, no matter how light the charge. Stewart was really mad at him, and turned the case over to me, with clear instructions, "Find a way to end it!".
There was a court date coming up in two weeks, so I had Lillian call Tom for a Saturday appointment. Tom was a quiet black man, about 50 years old, who worked on a loading dock. He was also a stutterer. He explained how he had been arrested. He was at a party with his brother and another friend. They had driven there in Tom's car. At the party Tom got so drunk he couldn't drive, so his brother drove while Tom laid across the back seat. At 3 A.M. they got in an accident with another car, driven by an Israeli woman, somewhere in Brooklyn. The woman and her husband got out of there car, came over to Tom's car, reached in and took the keys. Then they called the police.
By the time the police came, Tom, his brother and friend were all standing outside the car. One officer reached into Tom's glove compartment, took out his registration and said "Which one of you is Tom Johnson?'
"Hiccup.....I am.", came the reply.
"You're under arrest."
Tom's brother and friend were screaming that Tom wasn't driving, Tom was stammering a similar tune, and the officer wasn't believing it. He put handcuffs on Tom and sat him in the police car. Meanwhile, the other officer was questioning the Israelis. Finally, the two officers conferred and decided to figure out who had been driving. They brought the Israeli woman over to the police car, in the middle of the night after a car accident, with Tom in handcuffs in the police car, and said "Is that the driver?"
So Tom was arrested and charged. Fortunately, his union had pre-paid legal coverage. Stewart had gone to court with him, and the assistant district attorney made the usual offer, plead guilty to "impaired" which is not as serious as "intoxicated", with a small fine and a small record. Stewart wanted him to plead. He wasn't going to. After three court appearances, Stewart gave me the case, and strongly suggested I find a way convince Tom to plead to SOMETHING. Herein lies the basic business problem with pre-paid legal. If Tom were a private client, you could point out how much more it would cost to take a case to trial, and the risks versus the gain, and how it wouldn't be worth it, and he'd probably plead. Or, he'd pay an appropriate fee, you'd work hard for the money and give it your best shot. Tom didn't have to pay, he just wanted the charges dismissed by the DA or he wanted a trial. Stewart had a dilemma.
I did not have the same dilemma, since I had to go to court for Stewart once a week anyway. I liked going to court on this case. It was far better than Family Court and some of Stewart's other legal garden spots. I went to Brooklyn Criminal court a few times, meeting with assistant district attorneys and their supervisors, trying to get them to drop the case. They wouldn't, they wanted Tom to plead to something, anything, even a traffic violation. Tom wouldn't plead to anything. Actually, if Stewart would have let me, we could have filed a written motion to obtain a hearing on the way Tom was identified. This would have been very time consuming, and would have prevented me from working on anything else. A private client would have to pay $3500 for this work, and Stewart wasn't going to have me do $3500 worth of work on one case.
Twelve court appearances and one year after the arrest, the case had to go to trial. During a pre-trial conference with the Judge, the DA made no secret of his disgust at our not taking a plea. I asked him if he knew what a pre-paid legal plan was.
A defendant has a right to a jury trial, but as a lawyer you don't always want one. You can opt for a trial with a Judge deciding the facts and the law. This is called a "bench trial". Strategically, I thought this was a good case for a bench trial, and besides, Stewart would have killed me if I took the time for a jury trial.
At the bench trial, the police officer testified that he arrived on the scene after an accident. He testified about how he had determined that Tom was the driver. On cross-examination he admitted he hadn't seen Tom driving, Tom was outside the car when the officer arrived, and that Tom was in the police car with cuffs on when the Israeli woman identified him.
The police testimony was not enough to make out a case, and I knew the DA would call the Israeli woman as a witness. During her testimony I figured out why the DA had adjourned the case so many times previously. During the past year his "star witness" had become a mother for the first time, had traveled back and forth to Israel several times, and didn't seem too happy to be in court.
The DA worked hard to get her to talk about the accident and Tom Johnson, but she was not very convincing. One exchange on cross-examination decided the case:
Me: "Do you recognize the man sitting at the defense table as the driver that night?"
The witness: "I don't know."
I was going to ask more questions, but the Judge's face and body language told me it wasn't necessary. After the DA said "The People rest", all I had to do was stand up and make an oral motion to dismiss the case, and the Judge dismissed it.
Stewart may have lost money on this one, but Tom got his money's worth.

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