Tip:
Priorities in Argument.  When a judge, trial or appellate, asks a question, always answer the question first and then give any needed context.  I often find myself impatient to get the answer I was looking for, and worse, distracted by the attempts to spin the (bad?) fact or law before identifying the object being spun.  Clients rarely want to watch a lawyer struggle with the judge over that approach. I suspect that the judges who sit quietly are little different in that respect from those of us who speak up.

— Hon. Stephen C. Aldrich
4th Judicial District
Minneapolis
Stephen.Aldrich@courts.state.mn.us

 

Trap:
Perfect, Cheap and Unavailable.  In criminal cases, clients occasionally seek help believing a magical defense exists that warrants complete dismissal, inexpensively obtained.  Often they’ve come by this belief courtesy of a magician-attorney who has sadly, if conveniently, declined representation. As the magician desires, the client long pines for the magician-attorney so sadly absent.  After the well has been thus poisoned, no representation will meet the client’s high expectations.  Can this client still be helped, without passing the problem off to another to take the heat?  Early on, review the elements of the charge by reading them to the client from the jury instructions, evaluating the evidence pro and con.  As the complexities become clear, the client will appreciate your candor, and may see the magician anew, but as a self-promoter more than a lawyer.  Take the case if the expectation balloon has first been popped, but decline it if expectations remain high.  The expectations “gotcha” game is common between lawyers in the same firm as well as from competing firms.  The toughest part is keeping one’s own counsel concerning the ethics and possible motives for the magician’s self-aggrandizing, if unavailable nature.

— Lachlan B. Muir
Lachlan B. Muir Law Office
Jackson
lachlanmuir@hotmail.com

 

Tip:
Retainer Agreements. Most lawyers recognize it is good practice to have written retainer agreements, signed by clients, as often as possible.  But the absence of signed, written retainer documentation is not necessarily fatal to a claim for attorney’s fees.  A recent ruling of the Minnesota Court of Appeals illustrates this point.  In Morris v. Gray, 2005 wl 2277262 (Minn. App. 2005), a criminal defendant sued for partial refund of a $12,500 retainer he had paid to the law firm that represented him in the case.  The appellate court denied a refund despite the absence of a signed retainer agreement because the evidence, including an unsigned retainer agreement that the law firm had sent to the client, reflected that the parties had an oral agreement that the law firm would be entitled to the full retainer payment, regardless of the disposition of the case.

Until recently, a signed retainer agreement was not necessary to recover attorney’s fees in contingency cases, either.  Rule 1.5(c) of the Minnesota Rules of Professional Conduct formerly provided that a contingency fee “should be in writing” and recite the applicable percentage fee and that upon conclusion of a contingency fee matter, the client be given a “written statement” reflecting any percentage fee and the method of determination of the fee.  However, the Rule did not expressly require that the client sign the retainer agreement. A new provision, which went into effect on October 1, 2005, requires that the retainer agreement be “signed by the client.”  It also requires that the contingency fee arrangement “clearly notify” the client of any costs or expenses for which the client may be liable, whether or not as prevailing party.  Despite the ruling in the Morristown case and Rule 1.5(c), it remains prudent practice for lawyers to have written retainer agreements, signed by their clients, in order to avoid disputes regarding attorney’s fees.

— Marshall H. Tanick
Mansfield, Tanick & Cohen, PA
Minneapolis
mtanick@mansfieldtanick.com

 

Tip:
D.I.Y. Forms. One of  my most gratifying professional opportunities is to scribe a document that all parties to a transaction can understand and use to memorialize their intentions regarding that transaction. Instead, way too often I hear the phrase, “I need a (fill in the blank); does anyone have a form for that?”

Before you succumb to the easy way out, think for a minute:  what are the parties trying to accomplish and what can I write that will accomplish that?  If you think about it, you will find that most agreements have a basic structure and all you have to do is fit the facts of your case into that structure. Let your creative juices flow! Do your own!

— Russ Jensen
Attorney at Law
St. Paul
76330.2257@compuserve.com

 

Trap:
Special Assessments. If a client wants to appeal a special assessment, the time limits are very short. First, a written objection to the proposed assessment must be filed either with the city clerk before the assessments are adopted, or with the mayor at the hearing when the assessments are adopted.  If this objection is filed, then the assessments may be appealed in the 30-day period after the assessments were adopted. Missing either of the deadlines is fatal to a claim.

— Karen E. Marty
Marty Law Firm, LLC
Bloomington
kmarty@ix.netcom.com