Concurrent Retirement and Disability Pay (CRDP) or Combat Related Special Compensation (CRSC)

Prior to 2003, the U.S. Department of Veteran Affairs ran a disability compensation program. It's popularity stemmed from the manner in which disabled veterans of the United States Armed Forces could waive a portion of their disposable military retirement pay and receive VA compensation for that waiver in exchange. That compensatory pay from the VA was exempt from federal and state taxes. Depending on the disability rating of the veteran it was entirely possible that his or her entire retirement pay could be converted into tax free income.

While supporting US veterans (which is a laudable goal), Congress simultaneously sheltered VA compensation from garnishment actions by ex-spouses of veterans and made equitable treatment in state family proceedings a small nightmare. State courts and the attorneys of ex-spouses of disabled veterans found a loophole in applying indemnity clauses which naturally were crafted with varying degrees of skill.

In the early 2000s, Congress enacted two new entitlement programs: Concurrent Retirement and Disability Pay (CRDP) and Combat Related Special Compensation (CRSC). These two programs operate under different rules, but numerous difficulties arise when disabled veterans and their ex-spouse transitioned from the old system which was in place when they were divorced into the new system, for which their final judgment for dissolution of marriage was not written.

How should a family law attorney handle such a case when a former spouse is requesting that they file a motion to enforce and/or hold the disabled veteran in contempt? What questions and issues arise? How can one avoid the pitfalls of the dreaded s. 57.105 notice from opposing counsel? Let's try and cover the basics:

The Defense Finance and Accounting Service (DFAS)

DFAS is the government agency mandated to process the payments of CRDP and CRSC funds to disabled veterans and any ex-spouse entitled to a portion of their disposable military retirement pay pursuant to any final judgment for dissolution of marriage.

Once an application by a disabled veteran requesting consideration under the new entitlement programs is received, DFAS will assign the veteran to the program which pays out the most. This determination is made without regard to any entitlement by an ex-spouse to a marital property split. Inclusion in one program precludes entitlement to the other. It should also be noted that CRSC is only available to veterans with disability related to combat operations (real or simulated). So all disabled veterans (I'm generalizing here) are entitled to CRDP, but not all disabled veterans are entitled to CRSC.

DFAS will accept requests for information from ex-spouses and return information regarding any breakdown in payment from any disposable military retirement pay he or she would be entitled to. What they will not provide are copies of the Retiree Account Statements (RAS) they provide the retiree. This tends to make things terribly inconvenient for the ex-spouse or the attorney seeking information. So unless the cooperation of the disabled veteran is secured, obtaining the RAS sheets must wait until discovery.

CRDP

Concurrent Retirement and Disability Pay (CRDP) is a program enacted by Congress that started on January 1, 2014. Over 10 years, this program "phased in" a reduction of the VA Waiver that eliminated part of the disposable military retirement pay in exchange for VA Disability Compensation. The result, disabled veterans saw an increase in their military retirement pay without a concurrent drop in their VA Disability Compensation. 

This program's entitlement is divisible with an ex-spouse pursuant to any final judgment in a dissolution of marriage action, even if that final judgment was written prior to the 2004 transition. So this program is often advantageous to the ex-spouse.

CRSC

Combat Related Special Compensation (CRSC) is an entitlement program for veterans with disabilities related to actual or simulated combat exercises which, to be brief, means that if the veteran was disabled while fighting he qualifies. DFAS handles the payouts for this program as well. If a single dollar is paid out to the disabled veteran under CRSC, no amount of CRDP can be paid.

This program's entitlement is not divisible with an ex-spouse. So being placed under this program is more often an advantage to the veteran and a disadvantage to the ex-spouse of the veteran.

The Inherent Equity and Inequity of the System

Congress, in it's usual "wisdom," created a system whose intent was to no doubt provide an advantage to veterans and simultaneously provide an advantage to the ex-spouses of disabled veterans who should not be cut off simply because the marriage ended.

The problem with the design is that its effects are absolute, and can either work fairly or very unfairly. Consider the situation where a deserving ex-spouse is foreclosed from a payout because DFAS assigned the disabled veteran to CRSC, or an undeserving ex-spouse getting an enormous payout because DFAS assigned the disabled veteran to CRDP. Neither situation is equitable: either the ex-spouse is shafted or the disabled veteran is. Bummer.

So the system works... when it works. The rest of the time it doesn't. Certainly it was not Congress's intent to create a system designed to randomly victimize certain parties to a divorce or reward the unconscionable actions of undeserving parties to a divorce. But effectively that is what they did. What makes this more remarkable (and somewhat disappointing) is the number of JDs in Congress at any one time. 

Pre-2004 Final Judgments into Post-2004 Enforcement

The real difficulties when attempting to enforce pre-2004 final judgments after the transition is that the language of the judgment, while advantageous to the represented party under the old system, can become crippling under the new system. If DFAS assigned the veteran to CRDP then life may be a little easier. If the veteran takes steps to switch during "open season" to CRSC in order to shut down payments to an ex-spouse (hint: DFAS will not stop him or her) then an enforcement proceeding may occur if an appropriate QDRO with an indemnity clause was included in the final judgment.

If on the other hand, a disabled veteran switches from CRDP after CRSC was originally assigned, there may be no bad faith and during a switch back to correct the ex-spouse may see a large spike in payment only to see it vanish the next year. This may trigger a legal attack from the ex-spouse that may ultimately prove futile.

This potential for dead-end litigation is raised because the disabled veteran is not required to produce any of the RAS and DFAS will not honor a request to produce them for pre-litigation discovery purposes. This means that in general practitioners will not know if there is a case until they file a motion for enforcement and request discovery. Of course, it isn't unheard of a s. 57.105 notice coming from an unsupported motion. Here are a few tips to avoid unnecessary litigation:

If you are the ex-spouse's attorney:

- Examine the QDRO (or it's equivalent) in the final judgment or marital settlement agreement ("MSA") paperwork and make sure there is an indemnity clause that would support a motion for enforcement.

- Send a demand letter to the disabled veteran for the RAS sheets from 2003-2014. Explain that fluctuations in DFAS payouts are raising suspicion of bad-faith attempts by the veteran to prevent your client from receiving funds. Explain that the veteran may avoid unnecessary litigation through cooperation and that failing to produce the RAS will force litigation.

- Compare the bank statements of the client with the RAS and try to determine whether or not the veteran switched from CRDP to CRSC or from CRSC to CRDP. (See above).

- If it appears that DFAS initially assigned the veteran to CRDP and after the veteran took steps to switch to CRSC, then check the indemnity language.

- Verify your complaints and attach all your exhibits. It doesn't hurt to mention in the Motion to Enforce that "in an attempt to avoid unneeded litigation a demand for the RAS was sent but Respondent but went unanswered."

- File your motion and ancillary paperwork and demand discovery. Once discovery is obtained, re-analyze your client's position.

If you are the disabled veteran's attorney:

- Usually you will only hear from the veteran once a motion to enforce is filed. If you hear from them earlier and a demand letter was received, ask them if they switched from CRDP to CRSC (if they are indeed entitled to CRSC). You might be able to resolve the issue for them without wasting time in litigation.

- Besides the usual reading over of the motion, you should demand the RAS from your client from 2003-2014 immediately (it's probably going to be demanded anyway, so it's better to get it as soon as possible). You can instruct your client to go to https://mypay.dfas.mil to obtain the sheets or they can write the agency and have the agency send copies.

- If the evidence shows that your client started on CRSC, then your client is standing in a strong position to argue against enforcement. Depending on your strategy, you may want to volunteer the evidence on the back end of a s. 57.105 notice and try to shut the litigation down before it starts.

- If the evidence shows that your client started on CRDP and then switched to CRSC, then your client's position is weakened only by an amount justified by the language in the indemnity clause.

Indemnification Language

Of course, longtime military spouses are divorcing these days, and as before part of any MSA or the final judgment should contain an indemnity clause and a method for splitting the marital settlement agreement. Mathematically Youngblood v. Youngblood, 959 So.2d 416 (Fla. 1st DCA 2007) is an excellent example of a well drafted (and admitted lucky) indemnity provision. In Youngblood, the ex-spouse (prior to 2004) was receiving $1,233.25. When the system changed, the ex-spouse began receiving... well, $1,233.25. I won't spoil the read for those of you who are interesting but the structure of the indemnity language was perfect.

Certainly we will likely see more tweaks to the system as Congress revisits this issue. Complaints of inequity will certainly arise as time moves forward from both disabled veterans and their ex-spouses. 

Practitioners should fight for an "It is the intent of the Court that  gets paid an amount equal to  and that should any changes to the VA disability programs prevent this intention from being realized, then and the Court will revisit this Final Judgment and reform this portion to reflect its original intention." clause. Reciprocity should be considered because this type of clause is of great benefit for both parties. Any future change could have catastrophic effects on the financial stability of either party.

There is almost no case law that this attorney found on CRSC and CRDP programs and how they interplay with pre-2004 VA disability compensation programs. Soon enough an order will be published out of Brevard detailing some of the information contained in here, and I'll revisit this entry and cite the order.

EDIT:   Gertz v. Odzimowski, 22 Fla. L. Weekly Supp. 98c (Fla. Brevard Cty. Ct, 2014)

For the attorneys reading this, if you practice in Family Law and are familiar with military divorce issues I'd like to list you here so don't be shy and email me.

The Protecting Tenants at Foreclosure Act of 2009

So the other day (or week, or month...) I got involved in a pro bono case involving an attempt to oust a couple of tenants from property that had recently been foreclosed upon. A writ of possession was issued under the foreclosure case itself (there was no eviction action) and I was asked to try to keep this from happening using the Protecting Tenants at Foreclosure Act of 2009 ("the Act").

What does the Act do? Well, to keep it short, the act prevents purchasers from kicking innocent bona fide tenants to the curve and in essence acts to force an assumption of any valid existing lease onto the new landlords. There is relatively little case law in Florida about this. So how do things work when this sort of thing comes up?

Step 1: The new landlord must give notice to vacate of at least 90 days to any bona fide tenant living on the property. A bona fide tenant is defined as being one who is unrelated (with limits) to the previous owner; entered into the lease agreement at arms-length; and pays rent which is reasonable relative to local market conditions. If the notice does not give 90 days, it is defective and cannot be enforced. See Fed. Nat'l Mort. Assoc. v. Jenkins et al., 21 Fla. L. Weekly Supp. 73b (Lake Cty. Ct., 2013), citing Logan v. US Bank National Association, Case No 10-55671 (9th Cir. USCA July 16, 2013); see also Joel v. HSBC Bank USA, Case No 10-13029 (11th Cir. USCA 2011). The Act does not protect squatters.

Step 2: Determine if the tenant is living on the property under a periodic tenancy or an active and enforceable lease agreement. If the tenant is in a periodic tenancy, the 90 day notice to vacate ripens 91 days after it is served and the tenant will be required to move. If the tenant is in an active and enforceable lease agreement, then the tenant must be allowed to live out the lease, subject to the following exception:

• If the property is sold by the successor in interest to a third party purchaser who intends to occupy the property as a primary residence. In this event, the 90 day notice to vacate ripens only on the sale date where the third party purchaser takes (at least) constructive title.

F.A.Q.

- I have a valid lease, and the successor in interest has not found a purchaser. The successor in interest has given me a 90 day notice, is this legal?

It appears to be. The Act does not restrict when the notice to vacate is served after the Certificate of Title (in Florida) is entered. The successor in interest may issue a 90 day notice immediately, but it does not go into effect until the sale date to a purchaser intending to live on the property as a primary residence.

- When can a 90 day notice to vacate be given to me?

In Florida, the day the Certificate of Title gets entered into the docket, transferring title to the successor in interest. If you are living on a month-to-month basis, the 90 day notice to vacate can be issued anytime after the Certificate of Title and ripens on day 91.

- My 90 day notice to vacate does not fully describe the property I am supposed to vacate. Can I fight to stay in my home on the grounds that I've been asked to leave an ambiguous property?

There is nothing in the Act requiring the landlords to give you a "perfect notice." Attempting to remain on the property based on similar theories used to defend common eviction complaints will not likely work. A reasonable notice; given in a reasonable place; that reasonably identifies the parties and property in question will likely be considered sufficient. In fact, a judge may find that initiating litigation to maintain possession when the notice isn't perfect is dilatory in nature and may get an attorney in trouble. Then again, if the notice address is completely wrong ("123 Anywhere" instead of "456 Overthere") litigation may be appropriate.

- After my landlord's property was foreclosed upon, I murdered my neighbor. Is there anything in the Act that will protect me?

No. But the Act expires in 2014 if that clears something up.

If you have any questions regarding the Protecting Tenants at Foreclosure Act or if your old landlord has lost your rental property in foreclosure and the new landlord is trying to rush you out, you need to speak with an attorney who is familiar with the Act. Feel free to contact my firm at (386) 873-8422 or via email at jimmy.davis.esq@gmail.com.

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.

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.

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.

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.

Enjoy.

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.