Sunday, June 27, 2010

My Cousin Vinny

For the record, I actually do have a cousin Vinny and yes, he is a NY lawyer. However, he does not resemble the great Joe Pesci, nor does he talk and dress like him. The title of this blog refers to the great 1992 movie of the same name. This film, in my opinion, not only provides a great amount of laughter, but it is truly a great representation in how the rules of evidence are applied. The film also demonstrates effective analytical techniques that are necessary during a trial.

A person can really learn a lot in a short amount of time in terms of legal analysis by simply watching “My Cousin Vinny.” Often times, when witnesses testify at trial, they are telling the truth even if the facts and evidence do not support their claim. It’s all about perception. If an individual perceives something as the way they saw, heard, or felt it, they will adamantly testify to the truthfulness of the matter asserted. However, perception is not always reality.

For example, in “My Cousin Vinny,” there is a scene in which Joe Pesci’s character examines a woman who claimed to have seen the faces of the alleged perpetrators. In this scene, the woman testifies that she had a clear view of the two men’s faces. However, Vinny had taken pictures of the window in which the woman looked through to see the two men. Here it was shown that the there was a dirty screen on the window, which would obstruct a clear view. The witness in this case did not lie on the stand. She testified to the truth in which she believed. It was Vinny’s keen analytical skills that destroyed the witness’s credibility on this issue.

There is another famous scene within the film that addresses the element of the passage of time. A short order cook was called as a witness to testify about hearing gunshots fired from the “Sac o’ Suds” convenient store. Here, the cook claimed that he heard gunshots 5 minutes after he finished cooking breakfast, more specifically, cooking grits. Normally this type of testimony would not be heavily attacked. However, as Vinny pointed out, everyone in the grit-eating world knows that it takes 20 minutes to fully cook grits. (Assuming no respecting Southerner would use instant grits, of course) Therefore, the cook’s testimony was deemed falsified since it was claimed he heard guns shots 5 minutes instead of 20 minutes after he finished cooking breakfast. This time differential opens up all sorts of possibilities for which two different men could have been at the scene of the crime and fired said gunshots instead of the ones currently on trial for murder.

Also, lets not forget the scene in which a woman testified that she could readily identify what the two alleged killers looked like. On the stand, she was positive that she could accurately identify the assailants. However, Vinny once again shows holes in the witness’s testimony my asking if she wears glasses. When she said she didn’t wear glasses for distance, Vinny walked to the back of the courtroom and held up 2 fingers. The woman, without proper glasses, could not identify how many fingers were being held up.

Not only can new attorneys learn from these methods, but so can everyone else in relation to everyday life. People often argue about the most trivial things and more times than not, both sides are correct to a certain degree. It’s not always about who is right or wrong. It’s not always about who is lying and who is telling the truth. Perception is most often the key factor in resolving an issue. Sometimes the best way to come to an appropriate resolution is to take a page out of Vinny Gambini’s playbook. Revise and analyze.

On a side note, I tried grits for the first time after watching this movie. They’re not bad. As a self respecting Northerner, I prefer to make instant.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Thursday, June 24, 2010

How do I get paid after I win my case?

Winning your case in Small Claims Court is often the “easy” part. The real challenge arises in the collection of the money judgment.

Typically what happens after a person wins in Small Claims, they are awarded a certain amount of money and the defendant is immediately bound to pay said amount. What often happens is the judgment debtor (the person who owes the money) refuses to pay or is not able to pay the debt at this time. There are several options one can take in collection of the money owed to them.

First and foremost, the judgment creditor (the one who is entitled to the money owed) must request a transcript of judgment from the court. The cost for this is $6. After one obtains this document, they must file said judgment in the appropriate county clerk’s office. The cost for this is $10. These expenses get added on to the overall judgment amount.

Once the judgment is filed, the judgment creditor can attempt to have the debtor’s wages garnished if they have gainful employment. If they are self employed or unemployed, this makes things a bit more difficult, but viable options still exist in getting paid the money that is owed to you.

The judgment creditor can send out an Information Subpoena to the judgment debtor. This document, usually obtained from the court, is to be personally served on the debtor. Within this document, the debtor is legally obligated to list all their assets, income, employment status, bank accounts, social security number, etc. They then are required to send this document back to the judgment creditor. From here, the creditor may attempt to seize any assets the debtor may have, such as a bank account, in an attempt to force them to turn over the money they owe. If a debtor has a valid bank account, the creditor can send the bank a Restraining Notice, which effectively “freezes” the debtor’s account so they cannot withdraw anything out of it. At this point, the parties can work out some sort of deal. If not, the sheriff is then notified and funds are allocated accordingly.

This whole process takes a lot of patience. Like I’ve said about other aspects of the law, collection of a money judgment can be like a marathon. Slow and steady will win the race. Often times, people will go to Small Claims Court mainly out of principle. If you strongly feel you were wronged and are entitled to every penny awarded in court, do not hesitate in collection of said judgment. I assure you, you’ll sleep better at night knowing you did everything you could to fight for what you felt was right.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Tuesday, June 15, 2010

Studying for the bar when you’d rather be at the bar

As mentioned in my previous blog dealing with this topic, studying for the bar exam in the summer is no picnic, pun intended. By now most recent law graduates are in their third week of studies and reality is starting to set in. Most students take the bar review course Bar Bri in this area. Bar Bri does a decent job in preparing one for the bar but this course alone will not bring the recent law school graduate to the promise land.

Simply going to the course day after day and listening to the lectures will not be of any service unless you do the required practice questions that they lay out in the syllabus. I know in my last bar exam blog I mentioned that one should do countless practice questions. I cannot express this enough! The phrase “practice makes perfect” truly applies when it comes to passing the bar.

In my opinion, students should do more than the recommended multi-state multiple-choice questions. The Bar Bri syllabus has the student doing a ton of multi-state multiple-choice questions toward the end of the session. I feel that the pace they set out in terms of these questions is a bit overwhelming and students often have trouble keeping up toward the end. I recommend that students do at least 25 multi-state multiple choice questions per day, regardless of what the schedule says. I’m not saying ignore the Bar Bri schedule, I just think that doing at least 25 questions a day along with essays and other related material will build stamina and consistency.

Unfortunately, cramming will NOT work when it comes to the bar exam. You can do 2,000 questions two days before the exam and I assure you, your results will not drastically improve. I equate this to a person not brushing their teeth for six months and then the day before they go to the dentist, they brush for 48 hours straight. Your teeth will still be in rough shape and so to will you if you attempt to cram for this crazy exam. As I touched upon before, think of studying for the bar as a marathon. To be successful, you need to start slowly, build consistency, and eventually everything will just click.

I strongly suggest studying in a secluded place with limited amount of noise. Try to take yourself out of the “daily loop” so to speak and stay focused on the task at hand. Don’t give in to summer temptations and hang out by the pool and beach all the time. Forget about bringing your books to the bar, beach, pool or party. There are too many distractions for one to fully focus on the material at hand. My suggestion is to “socially disappear” for the next 7 weeks or so. This includes not going to 4th of July parties and things of that nature. One might think I’m being too drastic in this recommendation but I stand by this because one party leads to another, and another, and so on. If you need to “blow off steam,” watch a quick movie within your own confines and order some decent take out. I will admit some students may be more disciplined and are able to party a little while successfully studying for the bar. Again, I think these people are in the minority.

Like getting the chicken pox, a person should only be subjected to the bar exam experience once. There is plenty of time for the bar AFTER you pass the bar. Best of luck to all.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Sunday, June 13, 2010

What to DO when you want to SUE, Part 2

Once all parties are served with the appropriate papers and everyone is at the courthouse its now time for litigation. Litigation is the process of carrying on a lawsuit.

In most courts, the judge will call the parties up to the stand and ask them if they have reached an agreement. If they have not, the judge will give them the opportunity to go meet privately within the courthouse to discuss the matter further in an attempt to reach an amicable resolution. If the parties can reach an agreed upon settlement, they will go before the judge and put the agreed upon settlement on the record. From here, the parties would be bound to carry out said agreement. If an agreement can’t be reached, the litigants will proceed to trial.

At the start of a Small Claims trial, the claimant (plaintiff) will present their case first. If he/she has any documents, papers, items, etc. in which they want to present as evidence, they should have it with them at that time. Depending on the court, the judge may ask for all evidence at once and mark it accordingly or he/she may allow the litigant to present each piece of evidence as the trial progresses. Evidence is marked as “exhibits” along with a letter, the first being A, B, and so on. Small Claims court does not adhere to the strict rules of evidence so not all evidence is bound by the hearsay rule. Hearsay is defined as an out of court statement made by someone other than the deponent offered to prove the truth of the matter asserted. (There will be an upcoming blog on the topic of Hearsay, so if confused, stay tuned)

The claimant then presents their case by giving testimony. If they have any witnesses, they will call them up to the stand one at a time and subject them to direct examination. Once complete, the defendant will have the opportunity to cross-examine the witness. Cross-examination is limited to what the deponent testified to on direct. The cross examiner can’t go off on a tangent and ask about issues that were not raised on direct examination. If one or both sides have no witnesses, which is often the case, they themselves will testify on direct and the other party will cross-examine them accordingly. If one or both parties decide to use an attorney for trial, the attorney will conduct all examinations and presentation of evidence. The judge may directly ask the litigants questions themselves, but usually, once a person is represented by an attorney, the judge will speak directly to them as their agent.

Once all the parties plead their case, present evidence and call witnesses, the judge will often take a short recess, review the case in chambers and then render a decision. Often times the decision will be for only a partial amount of the money being sought. Other times, the judge may dismiss the case entirely for failure to state a proper cause of action, or simply rule in favor of the defendant.

If the loosing party wishes to appeal the decision, they may do so by filing the appropriate papers with the New York State Appellate division. This is a higher court that reviews the lower city, town or village court’s decision for possible errors. If one were to decide to appeal, they must notify the other party of their intent within 30 days of receiving a copy of the judgment, along with an affidavit stating that they indeed served the other party notice. The process of appeal can be quite tricky and confusing so it is strongly recommended that the person doing so contact the court clerk or consult with their attorney first.

Stay tuned for future blogs that will address collection of judgment, location of assets, and other ways to make a judgment debtor pay.

Sunday, June 6, 2010

What to DO when you want to SUE

Often people will enter into an agreement or business transaction and things just don’t work out. In the end, one or both parties may feel entitled to some sort of retribution, which usually comes down to money.

When you feel a person, entity or business owes you money, the first place to consider filing a cause of action is in Small Claims Court. A lot of people may have heard of Small Claims Court and more than likely have seen it play out to some degree on TV (Judge Judy, People’s Court, etc.) but what exactly is Small Claims Court?

Small Claims Court is an informal court where people can sue for MONEY ONLY, up to $3,000 in Town or Village Courts, and $5,000 in City Courts. An individual may appear in Small Claims Court without an attorney if they so choose.

If you are the one filing the cause of action (the plaintiff) the claim must be brought within the town, village or city in which the person/entity/business you are suing resides or has an office.

To be eligible to sue in Small Claims Court, a person must be 18 years of age or over. If you are younger, a parent or guardian may sue on your behalf.

If you are a member of a corporation, partnership, or association, you may sue on behalf of the corporation but you may only do so in Commercial Claims Court. Commercial Claims Court is a lot like Small Claims Court, but the corporation, partnership, etc. must file suit in a City Court within the county of residence and or business of the person in which they wish to sue. The corporation, partnership, etc. also must be represented by an attorney.

To start Small Claims action is pretty simple. Just call the court and request the appropriate form. Most court clerks are very helpful in guiding you along. In Town or Village Court, if your claim is for $1,000 or less, the filing fee is $10. If over $1,000, the filing fee is $15. In City Court, the filing fee is $15 for $1,000 or less and $20 for claims over $1,000.

The form to start a Small Claims action is typically pretty short. Your statement for cause of action should be brief and to the point. It should include a description of the incident that is at the heart of your claim, including all relevant names and dates.

Once you file this form with the clerk, a date and time will be provided. The clerk will then serve the notice of claim by mailing it to the defendant my both first-class mail and by certified mail. If the notice sent by first-class mail is not returned to the post office within 21 days as undeliverable, the defendant is deemed served, even if the notice sent by certified mail has not been delivered.

Once the defendant is deemed served, the parties come to court on the given date and plead their case. As you can imagine, a lot can happen once the parties go before the judge. It is the judge alone who will decide the outcome of the case. With a Small Claims action, there is no jury.

Stay tuned for part 2 of this blog, which will discuss trial preparation, strategies, counterclaims, adjournments, and collection of judgment.

Wednesday, June 2, 2010

Studying for the Bar while everyone else is at the BBQ

This blog is targeted for recent law school grads but what I am about to say can be attributed to all walks of life in my opinion.

Studying for the dreaded Bar exam is no doubt a huge undertaking. What makes it more painful is the fact that students are forced to focus during the summer when there are countless distractions. Anyone who has taken a summer class in college can attest to this. The bar exam is arguably one of the hardest exams in the world to conquer, but with mind over matter, it can be accomplished.

It takes much more than academia or “smarts” to pass the New York State Bar exam. One should enter this process much like a prizefight and train themselves both physically and mentally. By physically, I mean building up ones endurance to be able to sit through 3 hours of grueling minutia on a consistent basis. Focusing on ANYTHING for 3 hours is hard enough sometimes let alone the wonderful world of law.

I will briefly mention that there are some individuals who can put in minimal amount of study time and pass the bar on the first try. If you are one of these people, more power to you. However, these individuals are in the enviable minority and should not be considered the norm. Most law school graduates need to put in COUNTLESS hours of work. Repetition is key, so the more practice questions one can handle, the better.

One of the main obstacles in studying for the bar right after law school graduation is the fact that it is summer and it is only natural that one would want to let their hair down. After all, you just spent an additional 3 years in law school and its time to blow off some steam, right? WRONG! As tempting as it may be to follow your buddies to the BBQ, avoid it all costs. One “break’ from studying will lead to another and before you know it, it’s a week before the bar exam and you barely cracked open a review book.

The best advice I can give a person who is about to embark on their bar exam studies is lock yourself away somewhere for the next 2 months. The more secluded the better. Passing the bar is well worth missing a few summer BBQ’s. This I can assure you.