Tuesday, December 31, 2013

Catastrophic Data Loss: Or is it? And how do you recover?

Recently, my relatively new Dell laptop experienced what is sometimes called a recovery loop error that seems to plague my particular make and model of computer. It is apparently being floated around that there is a link with the particular arrangement of hardware I bought and Windows 8. Not surprisingly, Dell (and another company) blames Microsoft for the error, and Microsoft blames the hardware manufacturers. This habit of passing the buck is apparently more tiring when you are the person with the problem than the attorney of the person with the problem.

But here begins my ghastly tale, sure to send shivers up any attorney's spine. My client files are digital, backed up weekly or bi-weekly, depending on how busy (or not busy) I happen to be. Being a soloist, I operate on a shoestring, and cannot afford being backed up minute by minute like some of you big law types can out there. (I'm sticking my tongue out now).

So this past Sunday evening, my computer, running ever so smoothly blacked out leaving but a blinking cursor. I assumed I lost the last 15-20 minutes of work and waited for a bit before resetting the system. When I reset the system, this appeared:

... and didn't go away. I reset again, still nothing. I left the system on and went to eat, hoping when I returned that for some unfathomable reason my system would repair itself or load up after some inexplicably long time. No luck, although dinner was tasty so there's that. (I'll be damned if I can't get the transparent feature to work, I thought I figured that out once).

Finally, I had to come to grips with reality. My world was ending, in fact, it was very likely I would soon be disbarred. There was no other reason why fate would allow me to lose 15 minutes of work and then spend hours hoping it wasn't. Still, I had no properly set up computer and (egads!) no worthy internet connection. Surely I would soon be disbarred.

When I stopped drooling irrationally over my situation I dropped back into tech mode and started troubleshooting. Windows 8 (I had never really taken the time to look into this OS but I used to be a tech support representative at a Gateway call center) had an interesting recovery feature, and (without getting into details) any attempt to boot into safe mode, safe mode with networking, safe mode command prompt, blah blah blah... just looped me back to the recovery menu. In other words this new feature was worthless. There are nine options by the way, and I tried them all. Nothing.

Finally, I rebooted for the 10th time when I heard a distressed BEEP! like I had just offended R2-D2. The magic words "NO OPERATING SYSTEM DETECTED" appeared. Something was seriously wrong. Either 1. the operating system had been corrupted somehow, or 2. the hard drive had spun its last. The former was acceptable to me, the later... not so much.

Calling India

So I needed my system recovery disk with Windows 8 on it. I opened up the box (yes I kept it) and of course, no disks. Great. So I dial up India and ask for a Dell customer support representative and get a nice girl named "Susan" on the phone and she proceeds to treat me like I just figured out my fingers exist. After the niceties we finally got to the part of the conversation that I enjoy: 

Her: "Can you send us your laptop?"

Me: "No."

Her: "Sir, we can't repair it if you don't send it back."

Me: "I don't need you to repair it, I need the software sent to me on a recovery disk because the recovery partition doesn't seem to work or even exist."

Her: "It would be easier if..."

Me: "I don't think you understand how serious the Florida Bar takes client confidentiality. They will stab me in the neck if I send my client files to you. I would rather set my laptop on fire and hope that magically downloads the pertinent files into the chip I didn't know the aliens implanted in my brain."

Her: "Oh."

Me: "I just need the disk, please. Besides, I need to see if the files on the hard drive can be recovered."

Her: "For a small fee we..."

Me: "No thanks. Just the disk, please."

The rest of the conversation went smoothly. But I couldn't help but look up data recovery services for lawyers. See, the problem with data recovery is that if an attorney lets a third-party view the files, then technically it's not possible for said attorney to be 100% sure that a bored IT guru didn't peruse the Killemdeadski file and discover that the sympathetic father of three really is guilty of murder. 

The bigger problem is that emergency data recovery services can cost between $1000 and upwards of $5000 / day. That's not good either. Especially for me, since I do not have a spare five grand just lying about begging to be used.

So did the hardware crap out, or was it the OS?

The OS. See, and you thought I was going to draw that answer out didn't you. It's 2am, I need to sleep.

What should be done in the event of such a failure?

After your initial half-day of being uselessly in shock over the loss, you should remember that you have a backup and only really lost at best a few days work. Thanks to eFiling, if you filed anything that you lost you should be able to hunt it down in the folder containing all the notifications and reconstruct your file. You do save all of those right?

Next you can drop your back up on an old computer while you are waiting for tech support to give you the classic fdisk-format-reinstall routine. Next, you should start going through the process of elimination to find out what the problem is:

- Run a hardware diagnosis. There is usually one available with the newer systems in a BIOS like environment that I really know nothing about because like I said above, I've been too busy practicing law to learn the ins-and-outs of Windows 8 or my hardware (which is a shame). In any event, it wasn't difficult to use, and it tests all of the hardware and gives you a report. My report came back with all hardware functioning at 100%. (I assume that if it was running at 90% it would probably tell me that too.) Anywho, thank goodness I don't need to buy new hardware. I am assuming that the diagnosis software is itself functioning, or else this diagnosis is shot.

- Boot up in safe mode and/or try to restore Windows to an earlier state when things actually worked. I couldn't tell you how to do that because my Windows 8 repair and recovery utilities looped until the lethal moment when my OS exploded in my face. But, I know the screens are there... so, good luck?

- Call tech support and waste another hour until they agree to send you the software you should already have on DVD but that they were too cheap to ship with your system. Ah, to have the time to build your own again.

- Finally, when all else fails it's time to recover the data or kiss it goodbye forever. Luckily, if the hard drive is working fine and the only thing that melted was the OS itself (Windows 8 in my case) then you can still recover the files you were working on. All it takes is a little knowledge of linux and another computer with a DVD burner available (go visit that friend you've been meaning to catch up with never.) I used Ubuntu and performed the following:

1.) Download Ubuntu 48.19 or whatever the current version is. It's FREE, so don't complain. What you download is an .iso file.

2.) Check your .iso file's hash value with the documented hash values on Ubuntu's website to ensure the image did not get corrupted during your download. If they match, goto number 3. If they don't match, restart the download because the image was corrupted during your last download.

3.) Properly burn the .iso file to a CD or DVD. Ubuntu's advantage is that the install image file also acts like a live distribution disk as well. That means you can run the OS right off the DVD. In the event you think that's better than having the OS on your harddrive... well, it isn't unless you enjoy the nostalgic speeds of your old Apple IIc.

4.) With burn in hand (or in the player as the case should be), restart the computer. If it fails to restart or (not in my case) tries to boot up windows again, your boot order is not... well, in proper order. Go into your BIOS and switch your boot order so that your CD/DVD player attempts to boot before your hard drive. Reboot to begin again. If you did this right...

5.) You should get a prompt asking if you would like to "try" Ubuntu. Do say yes, without installing it. If you install it, you run the risk of being responsible for a kitten dying for lack of you serving her milk... well, at least that's what your high pitched whimpering will sound like if you make this mistake.

6.) You should now be in the Ubuntu OS, and able to bring up a list of the disks. Mount whichever ones you need and go hunting for your files. Transfer them to a thumb drive and viola, instant recovery. $17k / day in cash save... you owe me a drink. 

Don't know how to pull this off? Well, this isn't really a tutorial. It's just part of my blog, written solely for the wishful thinking that you, the reader, will one day hire me, the attorney, to do some legal work for you.

But before you spend $2 mil / day (which is what I would charge to say... SAVE THE WORLD!) on data recovery services (who mostly do what I just told you to do) call me. I'll be glad to help, and my fees are much more reasonable. If I have to take your system to work on it, I'll even shoot you an affidavit promising I didn't browse through your case files like a naughty little IT professional.

Seriously though, call me... I might be able to help. Oh, and you might be disappointed to hear this, but I'm going to have to keep my hectic blog schedule to a minimum until next year. That's life I guess.

Saturday, November 9, 2013

The Motion for Attorney Fees: What is Reasonable?

After a review of attorney fees in the landlord - tenant ("LL/T") arena, it was clear that neither judges nor attorneys are really clear as to what is a reasonable fee or not. It's almost as if there is a gut instinct about what is fair and what is not. The result is that either attorneys are not being paid a fair wage for their work, or the landlord is being overcharged. Neither is a good thing.

An informal poll of attorneys indicated that I was worth anywhere from $175 - $250 per hour. Surprise, surprise: the attorneys who represent landlord downplayed my worth, while the attorneys who represent tenants increased my value. So what is the answer? At the time of this writing, I am calculated to be worth $241.34 per hour.

Whoa, Whoa, Whoa... How Did You Arrive at Such an Exact Figure?

Good question. But before I get to that figure let's go over what is happening in the marketplace. The landlord - tenant statutes grant attorney fees to the prevailing party. This is the flip side to the landlord favorable statutes. If a tenant is intelligent enough to grab an attorney and that attorney prevails, the landlord is looking at a financial thumping for messing up. On the other side, if the landlord's attorney wins the chances of regaining money from the tenant is pretty negligible because... well let's face it, a lot of tenants cannot afford a mortgage, much less an attorney bill.

In the beginning, not being familiar with the worth of attorneys and not understanding where these figures came from I did what most newly minted attorneys do, I looked it up and discovered several sources which discussed what a reasonable fee was but either didn't really give a good reason for how they calculated it or what it actually should be (in the form of a convenient chart or formula I could work with). Fla. R. Pro. Conduct 4-1.5 for example outlines "factors" to be considered in determining reasonable fees and costs.

Factors like, "the nature and length of the professional relationship with the client." Really? How does that come into play? If I represent my wife, does the cost go up (because I'll never hear the end of it if I lose) or down (because I have a personal incentive to win)? If I have had the client for years, does it go up or down? If the client is an ex-girlfriend, does the cost go up or down? What if it's my dentist? Accountant? Pharmacist? What about the staff of my favorite restaurant who know my family and I by first name?

The rule goes on to say that "[i]n determining a reasonable fee, the time devoted to the  representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors." Well... I don't know about you, but that cleared it up.

Unsatisfied, I decided there has got to be an easier way, based on empirical methods, to calculate the attorney fees in LL/T matters. So yeah, damn that science background of mine, because here is comes...

Known Orders and Illogical Curves

When I began this study I decided to obtain as many orders detailing the award of attorney fees and see what the data would be like. I was pleasantly surprised because the awards listed hours worked, the worth of the attorney (in $ / hr), years of experience, expert witness fees sometimes, and contingency fee multipliers (which, by the way, is now between 1.5-3 depending on difficulty; but that's another post). Just with the years of experience and hourly values I could put together a fairly decent ball park estimate.

With this kind of data, I should be able to approximate a math formula so that I could calculate my own worth. I was overjoyed, until I saw this:

What is this? Attorneys with 5-7 years of experience making more per hour than attorneys with around 30 years of experience? These were all within the past five years, and most of the data points were between 2012-13. This curvy... curve thing, while a formula, makes no sense.

The problem is that a reasonable attorney fee can only go so high, and any higher it obviously becomes unreasonable. Also, whatever that limit is, anything below it is more than reasonable. Attorneys out there are underpricing themselves, likely in an attempt to assure the judge that their rates are indeed reasonable. But why should an attorney cut him or herself short?

What Type of Curve Should Be Used?

That is a really good question. I settled on a linear function because a linear function would allow the profession to up their worth at certain levels of experience without drastically affecting the remainder of the curve, or giving ridiculous results over time. So if a 1 year attorney was getting $200 and then an order comes out giving that attorney $220, the new standard is $220 and only slightly ups the rates between 1 year and 15-20 years of experience.

Imagine a curve that curves upward from year one and flattens out around 15 years at $400 per hour. Over time, as orders come out giving more worth to beginner attorneys, the experienced attorneys will not progress and soon a flat line will emerge. This would mean that unless experience attorneys are increasing their worth in a field of practice as regularly as young attorneys are, soon a flat line will be observed. Then it will not matter if you are starting out or about to retire, you are worth $400. That hardly seems fair for the extremely experienced attorneys out there.

Next, imagine another curve that starts flat and ramps upward instead. While this may seem grand (and I certainly would appreciate it in 1-2 decades) the curve never stops and the "reasonable" rate for experienced attorneys would certainly be cringe-worthy. While at 15 years an attorney may be worth $400 per hour, soon after that attorney would be worth $500, $1000, $15000, $1,000,000 per hour. Such results are absurd and certainly not what is intended.

Eliminating the Orders Given to Attorneys Who Undervalue Themselves

Next, the values which are obviously undervalued are removed from the dataset, meaning: 1. any order awarding a more experienced attorney less hourly then an attorney with less experience; and 2. any order awarding less hourly to an attorney where another attorney of roughly equivalent experience was awarded more. This is not to say that the other orders were unreasonable, but the purpose of this exercise is to determine the upper limit of attorney fees that should be awarded.

When these orders were eliminated what emerged was a roughly linear trend for attorneys between 4-15 years of experience.

This is really good. Although I initially wanted a linear function it appears that the seemingly random logic of the orders giving attorney fees was that roller-coaster looking curve above, when everything undervalued is extracted what appears is a pretty decent function.

So You Look on the Graph and See What You're Worth?

Yup. Or you can plug your experience (in years) into the following formula (current as of 11/5/2013):

W(y) = (125y + 2525)/11
where W is your worth,
y is your experience in years, and
A is for how awesome this is!

Like all blog entries dealing in the mathematics of law, an example is required:

I've been practicing in landlord - tenant matters for 1.038356164 years (that's so ridiculously precise)
W(1.038356164) = (125*1.038356164 + 2525) / 11
W(1.038356164) = (129.7945205 + 2525) / 11
W(1.038356164) = 2654.7945205 / 11
W = $241.34

And that is how I got such a precise calculation, to answer your earlier question. In other words, I calculate my going rate based on the years I've been practicing measured in days. This means I get regular raises and my reasonable rate is always bumping up against the line and never falling behind where I should be. Tomorrow I get to celebrate when my going rate goes up to $241.35, joy!

For those of you who hate math, you're welcome:

  • 0 years = $229.55
  • 1 years = $240.91
  • 2 years = $252.27
  • 3 years = $263.64
  • 4 years = $275.00
  • 5 years = $286.36
  • 6 years = $297.73
  • 7 years = $309.09
  • 8 years = $320.45
  • 9 years = $331.82
  • 10 years = $343.18
  • 11 years = $354.55
  • 12 years = $365.91
  • 13 years = $377.27
  • 14 years = $388.64
  • 15 years = $400.00

Beyond that we have no good data, but to project:

  • 16 years = $411.36
  • 17 years = $422.73
  • 18 years = $434.09
  • 19 years = $445.45
  • 20 years = $456.82
  • 21 years = $468.18
  • 22 years = $479.55
  • 23 years = $490.91
  • 24 years = $502.27
  • 25 years = $513.64
  • 26 years = $525.00
  • 27 years = $536.36
  • 28 years = $547.73
  • 29 years = $559.09
  • 30 years = $570.45

There you have it, what you're worth in Florida's market for landlord - tenant matters. So the question now is this, do you have an order awarding attorney fees in Florida? If so, send it over and I'll include it in the data if it isn't already included which may make things a little more accurate. If there is a change, it will be reflected in this blog.

If you are in need of an expert in attorney fees in a landlord - tenant matter, don't get your briefs in a bunch, give me a call. I'll be happy to review your file, sign an affidavit, and appear in court for you if your file is in order. TTFN.

Friday, November 1, 2013

Florida's Bad Check Laws

It happens to us all, we sell something on eBay, accept a check at a yard sale, etc. When the check is deposited, it bounces and suddenly there's a bounced check fee applied to our balance. Generally fraudsters are all over the place, and from what I hear some even print their own checks. Unreal, huh?

But what do you do about it? Call the cops? File suit? Well, if you can identify the person who issued the check (and 99% are not too bright about hiding their identity, you can file suit AND press charges. But you have to do it the right way.

Issue Notice

Depending on what how far you want to go with this the law provides a series of remedies for this particular activity. If you want to press charges, you first need to send the statutory fifteen-day notice to the evil-doer who sent you the bad check. You'll also need certain identifying information, or some way of letting the courts know that the person who gave you the check is the person you are asking the authorities to put in the electri... I mean, yell at.

At the same time, you'll want to issue a second thirty-day statutory notice for the lawsuit to recover the money. Really? I have to pay hundreds to recover the money I am already owed? Well, no. You could let the police handle it after fifteen days and write it off. But wait... consider the next section about what you can recover.

That fifteen day notice is a statutory requirement before the state attorney office in your area will even look at your paperwork. After all, in these tough economic times, if somebody messes up because their finances are off in the bank, half of the population would be on trial. So the law wants to give the offending check-issuer the opportunity to make good on the check which was dishonored.

What Can I Recover?

Here is where Florida law gets good. You can recover the following:
  • Attorney Fees - meaning you can pay an attorney to file suit on your behalf or find one that may go after the offending party on a contingency basis.
  • Court Costs - meaning that money to spent to file suit... you get it back.
  • Face Value - meaning what was owed already.
  • The Service Fee - meaning between $30 - 5% of the face value of the check, depending...
  • Bank Fees - meaning that pesky $35 the bank charged you because that other guy's check bounced.
  • Treble Damages - mean THREE TIMES the amount of the check's face value.

What Type of Instruments are Covered?

I know... I know, I say check all up there but what about other instruments? Well, Florida law punishes "the evil of giving checks, drafts, bills of exchange, debit card orders, and other orders on banks without first providing funds in or credit with the depositories on which the same are made or drawn to pay and satisfy the same". Yes it's really worded that way. I use the term check because it's easier, but you know, not everybody uses checks.

Also, it applies to the issuance of bad instruments even when nothing was purchased... such as a settlement agreement drawn up to end a lawsuit.

How About an Example?

So let's say I'm selling my overstock of Tiddy Bears (a terrible investment, btw). A customer comes in and signs a check for one of these bears and walks away. She's happy because she finally found something that alleviates common seat-belt injuries. I'm happy because she was realized that a thousand dollars for a velco bear with an uncomfortable sounding name is a steal. She's happy because she knows the check is worthless and plans on getting away from me by driving three streets down.

I deposit the check and it comes back "dishonored" (yeah, banks still say that). My bank also charges me a $35 fee of some lame variety. Now, hopping mad, I issue two notices. One is a 15-day notice warning of my intention to assist in prosecution, the other a 30-day warning the check writer of my intention to litigate the matter if she does not pay in short order.

16 days later I look up my local state attorney office and send them a set of evidence they require in order to prosecute. After they process my request the police are dispatched to shoo... deal with her. In the mean time, I'm still waiting for the 30-day notice to ripen. From this point onwards, I only have an obligation to cooperate with law enforcement for the criminal penalties.

But on day 31 I can sue the Tiddy Bear pilfering pirate for:
  • $35 lame fee;
  • $50 service fee;
  • $1000 face value;
  • $3000 treble damages;
  • The cost of the suit; and
  • My attorney fees... if I actually hired an attorney.
For a total of... a lot more than $1000.

But Surely Good Sir, There's No Such Thing as a Tiddy Bear.

Oh really? Click here.

Sunday, July 28, 2013

Soloing on a Shoestring - Case Management with your OS

When I first started my law firm, the budget was pretty much zero. I had plenty of computer skills, but no legal software to speak of. So I started to improvise while I started programming my own case management software and document generating programs.

One of the immediate issues is how to keep track of cases without case management software or a really messy stack of paperwork. Not surprisingly, keeping track of case objectives and when things are due is really pretty easy and can be done using the file management system of your preferred OS.

Now remember, this is just a stop gap measure. The rules are not set in stone. What is important is that you find a system that is comfortable for you and use it. This is how I started and it's evolved from there.


Sunday, July 21, 2013

The Florida Bar Fee Arbitration Program: When Attorney-Client Relations Go South

Often, the attorney-client relationship is pretty tame. The issues to the client begin as subjectively major and once an attorney comes in, turns into an objectionably minor problem. The attorney helps to solve the problem for the client and both part ways. Hopefully, if the attorney in question did a really good job a continuous relationship begins.

But every once in a while (once so far for me), a client is so utterly disappointed with the outcome that he or she will complain to the Florida Bar and ask for their money back. This mostly happens when, for whatever reason, the case is lost. When such a complaint is made against an attorney, it is referred to the Florida Bar Fee Arbitration group.

It should be understood that there is no requirement for an attorney to agree to fee arbitration, although apparently there is an ethical requirement to strongly consider it. So when I ran across such a client, and the fee arbitration request came in, I ultimately decided to agree for two reasons:

The first was because I wanted to have the complaint heard by a third party neutral. Being a new attorney, it was important to me to find out if I did anything wrong. The second, I wanted to understand the process a little better and try to pass that experience on to other attorneys considering accepting an invitation: which I recommend.

The Facts: Briefly

It was a basic eviction case. The tenants had complaints about the home and issued a 7 day notice with intent to withhold. The landlord filed an eviction complaint in retaliation. I accepted the tenants' request to defend based on two meetings I had them, and submitted an answer to the complaint. Pretty cookie-cutter stuff at that time.

Only later did I find out that one of the tenants had engaged in acts against the landlord which were questionable at best. Also, upon deeper investigation of the facts almost all of the defenses needed to be withdrawn, leaving the defendant... well, practically defenseless. The case, which looked great on the surface, evolved into something quite flimsy. It was time to settle and mitigate any damages.

Luckily, the landlord was amicable to a swift settlement and what was finally agreed to ended up losing my client very little. The outcome had it proceeded to trial would have been financially devastating to my client. All in all, I walked away quite happy my client didn't get crushed under attorney fees, court costs, and moving costs.

My Clients' Point of View

As my clients were moving, and agitation at not having their day in court started to build up. The case was not yet closed when my clients called and emailed and threatened to report me to the Florida Bar. I sent them the website to the Florida Bar and promptly informed them that I was going to withdraw. The other attorney did not object. 

To my clients, I was the attorney who failed them. They believed I was unwilling to confront the other attorney, go to trial, and gave up on them. No doubt as they finished performing their end of the settlement agreement they had grown to resent me, and the experience probably slightly compounded the image problem attorneys have with the public (but that's another entry in this blog.)

My Point of View

From my point of view, I had protected my clients from exposing themselves to a losing eviction hearing. I kept their mistakes out of the public record, kept them from losing a lot more money in the long run, and got them out of the situation they had found themselves in. The judge would have (at the very least) frowned at me for bringing them before him. I would not have blamed him either. As an attorney, the requirement to look after my clients' best interests required that I advise them that this minor loss in the short term was acceptable compared to the major loss in the long term.

Then the fee arbitration process started:

The Invitation to Arbitrate

Shortly after my retainer was due, I received in the mail a letter putting me on notice that my client had filed a complaint against me and wanted to arbitrate my fees. I looked up whether I was required to or not, although I had a feeling it was voluntary based on the form. I then found this in the ethical rules "Since the fee arbitration rule (chapter 14) has been established by the bar to provide a procedure for resolution of fee disputes, the lawyer should conscientiously consider submitting to it."

I gave it some serious thought. I believed it would be a learning experience. I also recognized that although I believed I did nothing wrong, perhaps a more experienced arbitrator would think otherwise. It was important that I found out now if I was making an error before I continued my career.

I also thought that perhaps it would have some type of cathartic effect upon my clients to have their grievances heard out somewhere. They had gone through some fairly emotional times and lost a case they believed (and probably still believe) was a sure winner. Their anger towards me certainly wasn't helping I am sure.

Finally I thought of the irritation I was personally feeling towards them. I did the job, got them out of trouble, and thereafter became their new focus of attack. Why should I submit to arbitration? I was, after all, entitled to my fee. It was that attorney arrogance rearing it's ugly head like it sometimes does. 

I eventually signed the agreement and sent an outline of my side of the case (the clients sent their point of view initially) to be forwarded to the assigned arbitrator. I brought out my case folder and gathered the evidence I believed would be pertinent to winning my argument.

Silence... and then...

I got the letter in the mail. The case was assigned to an arbitrator close by. There was a date, a place, and a time. I marked it on my calendar and reviewed all the evidence for the case. With very little, I believed I had everything I needed to prove I was entitled to my fee:
  • The retainer agreement;
  • The evidence as to why my client would have lost;
  • Email messages approving a settlement approach;
  • A signed approval to settle on certain terms;
  • Another email agreeing to the terms I arrived at with the other attorney; and
  • Further emails which showed why the case was going to be lost had it proceeded to trial.
I taped it up in a folder, which felt quite thin and insubstantial. I went about my business as I waited for the hearing date.

The Hearing

That morning I got up and reviewed my thin little folder. As the time for the hearing approached, I headed out to the court house where it was to be held. I was a bit nervous, but still pretty confident. When I arrived I was worried I was going to be late. I wondered if they retained an attorney to represent them. There were rains, traffic was heavy because of it, and I elected to take the back roads... which still almost had me arriving late. It was sort of embarrassing. I was never late for a court house function for any of my clients, and here I was, about to arrive late to defend myself.

My former clients were already there and I arrived with a few minutes to spare. Luckily for me, the arbitrator was caught in the same traffic and was late himself. It gave me a chance to go over my case for the last time. He looked to be in a good mood when he arrived, and even cracked a joke at his own expense.

We all sat and were sworn in. The arbitrator started by allowing me to open. I stayed on topic, presenting fact after fact as the arbitrator guided the hearing. He completely destroyed my well thought out plan for what should be presented first, second, and so on... apparently he had his own ideas. Since I had never been to arbitration before, I was grateful he was directing us.

He then asked my clients to present their case. They had a mountain of paperwork, folders, tape recordings, emails, etc. Their emotions, so familiar from a few months back, bubbled up very quickly. They accused me of letting them down, disappointing them, caving in when faced with another attorney, etc. They compared their plight to the Zimmerman trial, attacked the landlord, and the arbitrator patiently struggled to keep them focused as they tried to explain their interpretation of the law. While they vented I took notes and remained silent.

I rebutted a few points and they ended up admitting my strategy in the case worked out for them later on (although it was poorly executed without an attorney), and I finally rested my case. Visibly frustrated, and likely thinking the entire system was rigged against them, they followed suit. The arbitrator had attempted to explain to them that we (collectively), as attorneys, had certain ethical obligations. That sometimes a fight is started but cannot be won. He spoke about buyer's remorse. He mentioned that despite it's imperfections, we had a great justice system. I do not believed he convinced them.

After all the evidence was given, he announced he would review the case and issue a ruling in a few days. Great I thought, more waiting. My former clients seemed frustrated. That cathartic effect I hoped they would experience seemed elusive. 

The Judgment

A little while after the hearing a letter appeared in my P.O. Box from the arbitrator. It was a detailed list of the facts presented and the arbitrator's opinion. I won. I felt vindicated that I had not acted improperly. 

Still, I think back on my former clients every once in a while. How did I lose control of the situation? Did I ever have control to begin with? It certainly has changed how I vet my clients before accepting employment. I still enjoy helping tenants fight oppressive landlords, but in this case I think that perhaps I was so focused on the landlord as a target that I had missed the shortcomings of my clients. My professor once told me these situations are why it's called the "practice" of law, because it takes practice.

Would I Recommend the Program?

Yes. It is an opportunity for clients to air their grievances. Even if those grievances are not founded on any legal theory, running a law firm is (at least partly) an exercise in customer satisfaction. The fact that one is brought before a fee arbitration hearing is proof positive the client was not satisfied. Like all businesses, satisfying all of your customers is not always possible. But from the failures, lessons can certainly be extracted, improvements implemented to avoid similar problems in the future, and of course a nice blog entry can be drafted for others to read and learn from your experience.

The Florida Bar Fee Arbitration program is a convenient and well intended program. Like other aspects of the law, it is likely not perfect. But I highly recommend every attorney in Florida experiencing such complaints from a client strongly consider this avenue to resolve the dispute. If this happens to me again (and I hope it does not), I will certainly avail myself of its services.

If you are the target of an irritated client and would like to go over what is going to happen, call me or email me. I'll be happy to speak with you.

Sunday, June 9, 2013

Do I have to pay rent into the court registry in Florida?

Imagine that a neighbor accuses you of a civil wrongdoing. He claims you destroyed his prized garden gnome, an original worth around $14k. Only you are innocent, and you have an alibi: you were clocked in and working at the time the gnome was claimed to have been destroyed. Still outraged, he scurries off to the local court and files suit against you. Papers are served detailing the facts as your neighbor sees it: Neighbor v. Gnome Killer. You laugh because your manager agreed to come and testify as to your alibi AND bring the software printouts proving you were at work.

But you look down and see instructions from the court: "In order to bring up any defense you must pay into the court registry the amount in dispute. Failing to do so will entitle the Plaintiff to a default ruling." Huh? You have to pay $14k just to have a judge hear you out. Sounds ridiculous? I agree.

However, in several states, including Florida this is a reality for certain defendants. If your landlord wants to evict you for non-payment, you must pay into the court registry an amount of the uncontested rent or the landlord is entitled to a default against you. Even if the landlord violated your rights (such as proper notice) some courts set that violation aside and refuse to hear the defendant unless you cough up the cash.

The reasoning I imagine is that once the landlord proves his or her case they are entitled to payment immediately without having to hunt you down. But this is not a good enough reason. Plenty of lawsuits progress without defendants having to pay to be heard by the judge. Arguably this is a violation of your Constitutional rights. If you are being asked to defend such an eviction, contact this law office, we will be pleased to go over your specific case.


Jimmy Davis is a practicing attorney in the Central Florida area. He practices in many areas of law, but is most interested in family and business law. He is particularly interested in the aftermath of Constitutional and Florida Constitutional rulings and how they help or hinder his clients' interests. He is available for free consultations on a variety of legal topics. 

Visit www.lawofficesofjimmyallendavis.com for more information.

Wednesday, March 20, 2013

Expert Systems in Heavily Statutory Areas of Law

The Problem

Law is (almost by necessity) a human endeavor. The abstract understanding required to interpret law and create an argument beneficial to one's client is difficult to master and near impossible to translate into code at this time. But there is little to no effort being made into research that would take reduce to programming areas of law which are strictly interpreted according to statute.

Certainly, blogs such as this one are designed and maintained by attorneys to educate the public as best as one can. Truth be told, however, there is almost no substitute for legal training. But certain areas of law are heavily interpreted by statutes, such as Fla. Stat. Ch. 83 (2012), Florida's landlord tenant laws. This set of laws and the procedures involved are easily reduced to programming capable of not only helping non-lawyers, but attorneys new to landlord tenant issues.

One of the worst problems facing the legal field today is the inability for the poor and underprivileged to obtain solid legal counsel when they need it the most. Florida issues are often addressed by attorneys at local legal aid groups, where panicked (and sometimes embarrassed) tenants facing an eviction are staring at immediate homelessness if they are being forced to leave within the quick procedural time frames under Fla. Stat. Ch. 51.011. Answers are often informal, and disjointed, leaving already frazzled judges to muddle their way through a hearing to see if a defense even exists.

The result is a legal battleground which is tilted in favor of landlords, even those who are violating the rights of their tenants.

The Solution

How does one get help to the unknown scores of people getting evicted who are afraid to approach and consult an attorney at legal aid? How can one include those who do not know about legal aid but are hunting for information online? What about attorneys who are new to the practice of landlord tenant law?

The answer is already here: artificial intelligence and expert systems are already making some headway into other fields, like medicine. See this experimental A.I. doctor online so see an example. Mistakes will be made at first, but the potential exists to allow patients to speak with an A.I. doctor first, and then take that doctor's recommendation to an actual doctor. As development continues, and patients gain more confidence in the system, the error rate will plummet and doctors will be able to save tons of time diagnosing patients and treating them.

So goes the doctor, so should the lawyer. There is little to excuse why a lucrative field of professionals cannot begin creating at least an expert system to assist the poor on the internet. This system could not only help the poor craft defenses in the absence of an attorney, but help attorneys insure that all bases are covered when they themselves are helping a patient... I mean, client.

This simultaneously creates a clearing house for the poor needing assistance, and improves the quality of legal representation in the Profession.


The author and the Law Offices of Jimmy Allen Davis, P.L. are currently writing a program to help landlords and tenants (first) to navigate their way through the eviction process. The program is called eLegal (see what I did there?) and is in pre-beta development at the moment. No link is available yet, but once it is, this post will be edited to reflect that.

The goal is to of course improve the Profession through automation, encourage more "professional" pro se activity, and provide affordable access to legal resources for those unable to afford a biological attorney. The vision is to create a A.I. partner/paralegal for a law firm.


Jimmy Davis is a practicing attorney in the Central Florida area. He practices in many areas of law, but is most interested in family and business law. He is particularly interested in the aftermath of Constitutional and Florida Constitutional rulings and how they help or hinder his clients' interests. He is available for free consultations on a variety of legal topics. 

Visit www.lawofficesofjimmyallendavis.com for more information.