Thank You, Dad - April 25-28, 2008

The landlord is relentless. Either the attorney is not very good at giving directions, or our landlord is not go at following them. Landlord thought it a good idea to call Roommate on Friday. This was after I spoke with his attorney, establishing the fact that Landlord should be directed not to speak with Roommate or I because he has retained legal counsel.

Roommate did not pick up the call, instead allowing it to go to voicemail. The message that was left consisted of the Landlord wanting to “sit down and discuss the problems we are all having.” He said that he understands that we may have some problems with his partner, but that he did not want this to become a big issue. The problem with his message is that Roommate and I are not as dense as we apparently have come across. We know that Landlord was the one who went to an attorney, and directed said attorney to draft and send a letter to Roommate and I. He is the one who elevated the whole issue.

In response to the call, and because I had told Attorney that we would no longer communicate with he or his client orally unless it was in court, the only option we had was to send an email to Attorney regarding his client’s contact with us.

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From: Tennants

To: Mr. Bad Attorney

Subject: Re: Landlord

Mr. Bad Attorney,

We wish to inform you that your client, Landlord, has contacted us. Inasmuch as we would like to solve the problems that have been presented, we cannot ethically engage in conversation with your client or his agents. As was discussed during our telephone conversation, in order for us to have any interaction with Mr. Landlord or his agents, we need a signed document, from you, stating that you give permission for direct communication to occur.

We would also like to reiterate that the plethora of needless and bothersome contacts from your client need to cease immediately. As we have previously stated, we are attempting to study for finals and need an atmosphere that is without any extraneous and undue influences. The sheer number of calls and contacts, alone, when we have requested that they desist, are bordering on harassment. We hope that your client and your client's agents will respect our right to the quiet enjoyment of our residence and lives.The level of anxiety and aggravation that your clients have caused, as well as the time we have superfluously spent, are already far too much. We trust that you will counsel them as to the results of their actions.

We look forward to resolving this matter in full, in a way that is agreeable to your client as well as ourselves.

I thank you for your time and effort on these and all other issues.

Very respectfully,

TENNANTS

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We received no response to the email Friday.

When Sunday came around, I was fairly certain that the Landlord or his agents would show up to carry out their open house. Having become rather adept at legal research, I quickly oriented myself as to the state statutes for criminal and civil trespassing. I realized that in order to prove criminal trespassing, it must be shown that the accused trespasser knew they were entering property on which they were not allowed. Civil trespass, on the other hand, does not demand knowledge of actions, the action itself suffices. I did not want them to skate on the fun criminal trespass would yield, so I took measures to ensure the trespassers knew they were entering a restricted area. I took one measure, to be exact: I posted a rather conspicuous sign on the front door of my home that said the following in large, bold type:

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NO TRESPASSING

Under New York Penal Law §10.03, §140.00(5) and §140.05, Entering or Remaining In or Upon the Premises Without Permission Constitutes Criminal and Civil Trespass, and is a Violation of the Law.

Violators Will be Prosecuted

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Roommate and I disagreed about the posting of a sign with the above printed on it. She thought it would make things worse. I told her that the law basically required such a move be made by us. She also was not planning on being home during that time, so I was on my own. The sign went on the door.

No open house was held.

This was a positively great occurrence. I had to study for my first finals (Civil Procedure II and Contracts), and wanted no distractions. Calling the police and dealing with dumb people was not really on my to-do list for the day.

I studied. And studied. And Studied. This process will continue for nearly three weeks more. The stress, and cabin fever build up to be quite immense.

On Monday, an email response from Bad Attorney arrived in my inbox.

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To: Tennants

From: Mr. Bad Attorney

Tennants,

It appears that you had a lot of time to spend on letters and e-mails to me that could have better been spent on studying for final exams, and they probably took longer than the two hours it would have taken for Mr. Landlord to have his open house. Your research indicates that you are more interested in going after me and Mr. Landlord, rather than to explain any legal basis for your opinions on real estate law.

Mr. Landlord is the landlord and the owner of the property. He has every right to contact you.

Nonetheless, as I stated in the Fed Ex letter you should be receiving today, I am going to be discussing the situation with Mr. Landlord this week to determine his future course in this matter. We both agree that this should be resolved-- you do not need a dispute with me and my client and I don't need one with you.

- Mr. Bad Attorney

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Where Roommate was once the pacifist in this situation and I was the bull, Roommate grew horns upon receiving this response. I, on the other hand, wanted to give peace a chance. We had instantly switched placed in this whole dance.

Monday brought forth my final Property Law class. It seems the Professor had grown quite attached to the class and the students. This was not overly surprising, as she regularly revealed her enthusiasm for this class during her lectures. As the class began, the professor started giving a speech about how she loved the class and hopes we will all stay in contact with her as time passes. During her speech, she started tearing up. It was very touching.

In other interesting news (literally), I was appointed the Editor of the Law School newspaper by the current, outgoing editorial board. I was caught very off-guard by the selection, as I had forgotten about the student run organization. As I told one of my buddies, when it pours, my life becomes cats and dogs. Should be quite interesting running the First Amendment publication.

Guest Post:: Ross Armstrong - "Approaching Camp II"

As his Saturday, April 12, 2008 post, Ross Armstrong, author of The Daily Ross - a law student blog of a different creature than my own - takes an otherwise cliche extended metaphor, and makes it perfect. Keep extending those metaphors, Ross. Law School final examinations are no fun, but it is nice to get to the top and look back. As my first year of law school comes near its end, so does my excitement to be able to look back.

Read on:

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Saturday, April 12, 2008

Approaching Camp II

From what I can tell, the climb from Camp I to Camp II looks shorter than the initial climb to Camp I. Not only does it look shorter but we know have our climbing legs. We know how to read cases, how to study for tests and be most prepared for class. Our heart rates no longer increase when the professor enters the room and as the dust has settled after leaving Camp I are comfortable with a place among our peers. As I approach Camp II, I can't help but wonder what happened to all the mountain below me. Is it really time for our last finals of our first year? Where did all that time go? It is in the respect of time, I think we are least prepared for Camp II. We'll be ready for the tests and fact patterns but how did we burn through four months so quickly?

The climb is not as focused on the mountain this time. As one climbs toward Camp II, thoughts of what happens after the entire climb is done is forced your way. The window of the post-climb world was opened for us to peer through; to get a glimpse of what world awaits us once we climb the summit was not only distracting from the climb itself but brought new thoughts of stress. The quest for summer jobs, externships, class and traveling abroad helped distract from the mountain itself. In some ways, such distractions may have helped to see the larger mountain range and in other ways took time away from enjoying the mountain itself. So, with two weeks of a final push as we approach Camp II, we climb on; now with a dual focus of the summit and life after it.

Act 2: Other Than That - April 24, 2008

The day, other than the day, was fantastic. The day, other than that, was spectacular. Why, in fact, my day was full of joy and happiness, other than that.

I had the last class with Senile Professor. I had my last Stupid Class. I had to deal with that.

I will miss Senile Professor, and his pointless ranting and the numerous side-tracked soliloquies about canes from Saudi Arabia and dumb lawyer jokes. I made it through the last two hours unscathed.

As one could gather, the end of Stupid Class was on my checklist of “Things to Accomplish without Committing a Crime.” I made it to the end, and as I walked out, a shroud of excitement befell my body. Smiles ear to ear.

As the final “good day, lad” to Stupid Class, we were all given slots in which we were to have our final one-on-one meeting with the very smart Stupid Class Professor. The meeting was spent mostly discussing the letter Roommate and I received. As it turns out, Professor worked for a non-profit tenant’s rights organization. She told me that the letter I received was not uncharacteristic of landlord attorneys. She told me that, Landlords and their attorneys think that a letter from a lawyer will scare people into paying their rent or performing other tasks. They are right most of the time. Such a tactic usually yields success for them. However, every once-in-a-while, the tenant is educated in the law or has representation, and that is when the fun occurs.

After telling me that she hopes that it does not interfere with finals, I we quickly discussed some details about the Final. The meeting was concise and to the point. Definitely my style.

Little did I know that more fun was on its way in the hour following our meeting. That is when “It” (where “it” = “that”) happened. I made the call, had my fun, and then went on with my day.

When I arrived at the residence (where an open house will not be occurring), I removed my phone from my pocket and dialed the County Bar Association. I wanted to go fishing. The call was answered by a woman who I very quickly came to appreciate.

“Uh, hi. I do not know with whom I need to speak. I am a law student who has had communications with a local attorney,” I began. “In multiple communications, he threatened to report us to the Bar Association if we did not comply with his client’s demands. I want to ask somebody what I can do, and to see if I am taking the right steps.”

She asked if I had filed a grievance.

I told her that “I had not yet done so,” and did not think I was prepared to just yet. “It may not be something that is at that level, at this point.”

She coaxed more of the story, including the letter and phone call, out of me over the next minutes.

After the abridged version had been told, she said the following, in a matter-of-fact tone:

“I am sending you a grievance form,” she stated. “You need to fill it out and send it back. Now, what is your address?”

Yes ma’am! Alright, consider it done.

I figure that the call was a good sign of things to come. The call gave me the renewed sense that I had handled the situation correctly. That is definitely a solid “pat on the back.” I could use a few more of those.

I find that all the interesting events happen to me. As my Brother said, “We have a problem, you and I. We stand up for ourselves where others wouldn’t. It gets us into trouble. A lot.”

He is definitely correct. However, I would not change that characteristic for any reason. It is something I definitely like about myself.

Last Contracts Class: check!

Last Stupid Class: check!

The Second Coming: No check.

The First Exchange With Legal Counsel: check!

Day of Mr. Bad Attorney Ruined: check!

Tired and Stressed: check, check.

Part 1: The Goose Gets a Gander – April 24, 2008

I like to give people the benefit of the doubt. It keeps me a little less pessimistic and gives me hope that there is inherent good and elements of reason in everybody. However, reason, good faith and common decency are not traits that all people can possess. Mr. Bad Attorney (from yesterday) is one of these bad people.

When one has, what is supposed to be, their intellectual superior asking very frantically if you reported them for ethical violations, you have a sign that reads “upper hand,” with an arrow pointing in your direction. However proverbial my sign was today, it was still mine.*+

The small print: *Does not threaten well by others. +Caution: Bites. Hard.

To premise the environment, an in-depth study should be conducted. The perfect storm of events: so very flawless, the following is unbelievable. However, I could not make this up if I tried (for other stories of impossible truth, read the LSAT Saga – back luck and brawling lesbians, with helicopters and guns). The law school confiscates your thinking cap and imagination during orientation - I am without the ability to create entertaining stories with drama and action. My art, for the most part, is in the retelling.

So commences the day:

The story begins with the tale of two roommates. You know them well, but trouble's-a-brewin'.

My roommate is having a bad week. Roommate is having a horrible day. The worst day of a horrible week is not the correct time to try to mess with any person, especially Roommate.

After having a relatively horrible morning, where there were tears and a lot of remorse involved, Roommate’s phone jingled a sound we have come to loathe. Our Landlord’s partner’s wife was causing the phone to ring. In her already unpleasant mood, Roommate answered the phone. Wife proceeded to “notify us” that there would be an open house this Sunday.

Mayday! Mayday!

Roommate, with all the cool ferocity she could muster, told Wife that (1) she was not in the mood to deal with this, (2) there would be no open house, (3) she should consult her attorney before attempting to enter the premises without permission, and (4) this is not a debate, the decision had been made. The rest of her call was jumbled in the retelling, but I did retrieve this: her call ended the same way mine would.

When Roommate educated me about the call, I told her (and she readily agreed) that there would be no further communication verbally with us, and that we would not again have any communication with them because they had retained counsel.

I pledged to make a call to Mr. Bad Attorney (who I have deemed “Buttorney” to make myself happier on the inside) to ask him to advise his client and any agents of his client that the harassment should cease.

The call was a pain in the butt from the outset. I called the firm, was transferred to the “switchboard,” and connected with Mr. Bad Attorney’s secretary. She told me that she needed to “check to see if he is on the phone.” Having dealt with a phone or two in my life, and attempted to dodge a great many calls, I know that this translated to Mr. Bad Attorney being in the office, and his secretary finding out whether or not he wanted to talk to me. Surprise pervaded my being when I was told that he was, in fact, on the phone. Who saw that coming?

I told Secretary that I would be pleased to wait for him to finish his other call. She, in a puzzling state of mind said “OK.” Ten minutes later, she told me he was still on the call, and I responded that I still would wait. We went through this twice more, until I was able to drive my tenacity home. After a lengthy time, she came on the line and notified me that Mr. Bad Attorney “is going to be on the phone for quite a while longer.” I asserted that, “Luckily, I have nothing to do for nearly two more hours, and would love to wait for him.”

Astonished and a bit perturbed, she scoffed “Fine!”

Low-and-behold, a few minutes later, Mr. Bad Attorney answered the phone.

“Hello, who is this?” he asked.

“I am H, calling in regards to your client, Mr. Landlord.

“You are not Ms. Roommate, why are you calling on this matter?” He quizzically stated.

“If you had bothered to look at the lease agreement before you hastily authored your letter to us, you would notice that my name appears right next to Ms. Roommate’s name. As the law would have it, this makes me a party to your letter as well,” I uttered in disbelief.

His obviously poor investigation and lack of facts would become the theme of the call.

I told him, as succinctly as possible – mainly because I did not want to have a long, adversarial conversation with him – that “I request that you advise your client and your client’s agents that they are not to contact my roommate or I any further, as they have retained you as their legal counsel, unless we receive, from you, a signed letter stating that they are released to do so.”

The call instantly became hostile as the unfounded accusations came bounding my way.

“My client tells me that you have not paid your rent for the month of April,” he accused.

“You obviously have not done your research, or you would have discovered that one day before you penned your name to the demand letter, we hand-delivered checks to your client’s agent,” I responded.

“That’s not what my client said, and he seems like an honest guy to me,” Mr. Bad Attorney rebuffed.

“Well, I am telling you that your client’s agents have been in possession of our checks for days now. I have no idea what or how much he has told you, but you do not have the whole story,” said I.

“My client would not lie to me, are you saying he is?”

“I am not saying your client is lying, all I can say is what I know I have done.” I responded.

“Do you have cancelled checks? Send me copies,” he said as he spouted out 10 digits I chose to ignore.

I told him that “there are a number of problems he and his client bear with their assertions. First, the house is in violation of the warranty of inhabitability. There have been numerous conditions, of which his client had been informed for over 5.5 months – more than half our current lease period – and that as a result we are well within our rights to withhold any rent that his client claims is due. Second, as you will read in the letter you shall receive tomorrow; the lease agreement is without terms of delivery. Therefore, as you will find when you research the law, the landlord must physically go to the most prominent point on the property and demand any due rent. Even with the foregoing aside, in an attempt to remain conciliatory with your client, we paid our rent anyhow.”

At this point I told him that he obviously had not done his research, and that it is also apparent that he did not have the entire story from his client. I told him that I would not discuss the issue until he had all the facts.

Then, it got ugly.

“You cannot stop my client from having an open house. They are within their rights under the lease agreement,” he said.

Knowing he had not read the lease very closely, I decided to have some fun debate with a lesser-informed foe.

“If you had taken the time to actually read the lease you would find that the word ‘may’ appears. During my first weeks of law school, we discussed the construction of contracts, you know, like the effect commas have when placed in different locations, and the meaning of certain words.” I said proud of my knowledge.

“The word ‘may,’ unlike ‘shall’ or ‘will,’ means possibly or is permissible. Not only did we inform your clients that an open house is possible at a later date, but we have allowed the property to be shown with a prior appointment. However, even if you are right, and I am pretty sure you are not, the agreement provides that showings can only take place at times deemed reasonable…”

He cut me off, and angrily asked me “where does it say that?”

I retorted that “it is located in paragraph 15; the same paragraph that you cited in your letter to us.”

The sound of the opening and closing of a file cabinet was noticeable in the background. As paper ruffled he mumbled something to himself, probably reading the lease agreement for the first time.

It was time to continue. “You know very well that we are law students, and you also know that we are in close proximity to finals…” I started.

Cut off mid-sentence, he was concrete in his denial that he did not know our schedule. I responded that, again, he obviously did not have all the facts, and that his client knows that the reason we refused an open house was our intentions to study, uninterrupted, for finals. I also reminded him that, as a legal practitioner, he is expected to know the full story before making any factually untrue statements, and that he is as culpable for a falsification as his client, because he signed his name on the demand letter.

After that, I was allowed to continue my previous statement, “… it is unreasonable to hold an open house during law school finals.”

He responded with the laughable reasoning I did not expect from an experienced lawyer. “Springtime is the best time to sell real-estate, and that most open houses occur on Sundays in the afternoon.”

I nearly laughed. I had to make the obvious statement: “Inasmuch as I am sure the time seems reasonable to your client, a contract goes both ways. As such, it has to be reasonable for us as well.” I restated the fact that it is unreasonable for law students to have their residence shown during an open house during finals season.

“I don’t think other people would agree with you,” he said.

Again, I had to make the obvious reply. “To tell you the truth, Mr. Bad Attorney, I could care less what others think,” I began. “I am relatively positive I could convince a Judge that I am correct; I am even more positive that I would not even have to convince a Judge; they would already know that we are correct, because we have the law on our side.”

He started to make outlandish suggestions, including driving to the law school to study, going outside to read or going into a room. On the face, these are not bad suggestions. However, silence is key, a computer is necessary and time cannot be wasted. Yeah, law school is intense.

I told him that “I do not know how it was thirty years ago, but…”

Cut-off once again by Mr. Bad Attorney turned horrible interrupting annoyance. “I will not be talked down to by a law student. I will not take condescension.”

“I was not talking down to you, nor was I meaning to be condescending,” I said as angelically as possible. “I was attempting to tell you, before I was interrupted, that either you do not remember how law school works, or perhaps it has changed. I cannot speak for you, but I can say that perhaps 30 years ago you went to law school, but I am a law student in the present. I can say that every minute of time is precious to law students, and I cannot afford to have any interruptions, intrusions or inconveniences. I certainly cannot waste any time.”

I relayed that I appreciated his concern for my well-being, but that holding an open house during finals is ludicrous, and cannot occur.

Then, the illegalities assumed their position.

“If you do not do honor the lease agreement, I will notify the bar association. Not honoring the terms of a lease is unethical,” he said.

“Are you threatening me?” I asked. “It sounds like you are making a threat, and I do not like being blackmailed or coerced to do anything I do not have to do.”

This part is fuzzy, but he back-pedaled quickly, and then started to make threats and statements of extortion about notifying the bar association, and how hard it would be to pass the bar examination as a result.

As sad as I was to ruin the surprise of our letter, I let the goose have a gander. “As you will read in our response tomorrow, we have already preempted your attempts to extort and coerce us,” I said proudly. “We have forwarded your demand letter and our response to the Bar Association.”

Uh oh. Somebody’s in trouble. Doo-doo hit the fan.

“Did you file a grievance with the Bar Association?” he asked with a worried tone, with a hint of angry.

Gleefully, I responded that “I did not file a grievance; I merely forwarded the letter you sent us, and the response we are sending you. I have nothing to hide; you best hope you do not either.”

“It seems to be the same thing,” he scoffed.

“Well isn’t that the problem: the way you think things seem to be is far different from what they actually are,” I rejoined.

“Who did you send the files to? If you filed a grievance, I am going to need to report you to the Bar also. In thirty years I haven’t had a complaint filed. I have been a member for decades,” he sputtered angrily.

“Who did I send the files to,” I rhetorically asked. “I sent the document to the American Bar Association, the New York Bar Association, and every other organization I could find,” I said with a smirk.

“You just sent it to the bar,” he asked.

“No,” I said assuredly. “I sent it to the Bar Association Ethics Committee and every other legal ethics committee I could find in the State and County.

My parents always explained (and my experience supports) that one of the worst things one can do to an enemy is to take the “wind out of their sails.” It is better to tell your parents that you were a ‘bad boy’ before your brothers can. Not only is the punishment less harsh, but your brother does not get to have the joy of turning you in.

In this case, Mr. Bad Attorney’s boat – the forgotten fourth ship of Columbus’ fleet, ‘The Bob’ – was without wind. The ship is going to end up in Greenland: a beautiful icy abyss, all alone.

I was tiring from arguing with an uneducated, baseless wall. I told him that, “as of this moment, we will no longer communicate orally. The only way we will respond to you or your client is by certified mail or, if he so chooses, the filing of suit in a court of law.”

Obviously enraged, Mr. Bad Attorney scoffed at me and stated that I could not tell him how to mail a document. “I will mail documents to you however I want. If I want to do it through service of process or hand-delivery, I will do that!”

“You are right,” I said. “You can do it however you want. If you wish to spend money in that fashion, that is your prerogative. However, oral communications cease now.”

He started to babble and talk over me. So, as calmly as possible, I told him that “I am no longer going to discuss this issue any further. I consider these issues closed, and sincerely hope you advise your client regarding all applicable laws regarding trespassing, extortion, harassment and a wide selection of intentional torts. I am going to hang up the phone now and …”

He cut me off and began to babble. Again, I repeated my closing line, “I am going to hang up the phone now, even though you are not listening and I will probably hang up while you are talking. I wish you a good day.” My follow-through was perfect. Index finger to the end button: as quickly as he had realized he screwed up mighty well, I was able to take in the glory of bad lawyering. Lawyers like this make me want to specialize in Legal Malpractice. As my father said, there is nothing better than suing a bad attorney.

If Mr. Bad Attorney wants to take us to court, it will be a spectacle. To witness a 30-year veteran lawyer lose to law students would be precious. However, I really need to concentrate on finals. It would be better if this all just went away.

I am never a lucky-ducky.

Think Again - April 23, 2008

Right when I thought things were decent with the Landlord, I was wrong. I really dislike being threatened, especially by people who have no basis for doing so. When lawyers get over-zealous, they sometimes forget basic laws or underestimate the people they are dealing with. I have do believe this guy thought he was going to scare us into action.

Think again, Mr Bad Attorney. Think Again.

Below is the letter we received in the mail, followed by the letter we will be sending back. (Like I have any extra time laying around to do this stuff.)

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April 22, 2008

Dear Tenants:

We represent Landlord, the owner of the above property of which you are a tenant.

We are advised by Mr. Landlord that you did not pay him his rent for the month of April, 2008 in the sum of $$$$.

Please be advised that pursuant to paragraph 19 of the lease, you have five days to correct the default and pay Mr. Landlord the rent due. If you continue in default, the lease will be canceled and Mr. Landlord will seek to evict you.

We also understand that you are attempting to impede Mr. Landlord from having an open house to sell this property. That behavior would violate Mr. Landlord’s rights under paragraph 15 of the agreement, and you may not prevent Mr. Landlord from holding an open house to sell his property.

Finally, we understand that you are in law school. If you continue to violate the terms of this lease, we will deem that to be a matter of interest in the event you do seek to become a member of the Bar of this State.

Very truly yours,

Mr. Bad Attorney

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April 23, 2008

Dear Mr. Bad Attorney:

As first year law students, our law school trains and educates us in the practice of thorough legal research. We can reasonably assume that, as a practitioner of the law and a member of the State Bar Association of New York, you are just as capable of performing inquiries into applicable laws and facts.

We find it devious that an attorney would make egregious misrepresentations of the terms of our residential lease in an attempt to coerce actions and silence behavior that we, as tenants, are well within our rights to assert.

Had you properly researched our dealings with Mr. Collace, you would have discovered that, per section 15 of our lease agreement, your client may show the house to potential buyers. Under a strict interpretation of the law, the use of the word “may” is defined to mean “possibility” or “is permitted to.” Having covered the interpretation of contracts during our first week of law school, we believe, and case law supports, a reading of the clause as meaning that entrance to the property is a possibility, and could permissively occur. We have cooperated in the showing of the house previously, and will continue to do so as long as appointments are made in advance. Having allowed the property to be entered multiple times, we have fulfilled our duty as a tenant under the lease agreement. Paragraph 15 does not provide any limits, and as such, should be read under the strictest interpretation possible.

Furthermore, had you read the contract, you would have noticed the phrase “at reasonable times” appears. Your emphatic recognition of our status as law students and your client’s repeated acknowledgement that one of the many reasons for our denial of an open house was its proximity to final examinations; we found your client’s repeated and unyielding requests unreasonable. We have provided your client with a set of dates which would be agreeable to discuss a potential open house. Not only will witnesses verify the vast number of calls to our telephones from your client after the issue had been discussed at length and repeatedly denied, but can attest to the amount of stress and emotional distress he has caused us. It is also important to note that the lease agreement contains a great many clauses that are clearly unconscionable. Though an amended agreement should be drafted forthwith, we feel it sufficient to duly note such occurrences in the present.

Had you completed a thorough interview of your client and a complete investigation into the facts involved prior to hastily preparing the unfounded letter, you would have discovered that your client has, in multiple circumstances and for extended periods of time, violated our warranty of habitability and has willfully violated the terms of the lease and our quiet enjoyment of the property. New York Real Property Law, Article 7 describes the landlord-tenant relationship. New York Law requires the lessor to provide tenants with such basic needs as hot water, heat and other related services, or be found guilty of a violation of the law. The warranty of habitability also requires the lessor to ensure the property is “fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” On multiple occasions, and as several witnesses will attest, the house was without basic needs, including heat, hot water, and proper plumbing. Many of these problems have gone undiagnosed, unrepaired and without change for more than half of the current lease period.

Moreover, you allege, without factual basis, that we had failed to pay any due rent. The law entitles the withholding of rent when the terms of the lease agreement remain unfulfilled by the lessor. Here, not only are there drainage problems still uncorrected, but the showers continue to be without hot water for any reasonable period of time. Having properly informed your client of these and many other problems that made the residence below the standards of habitability, more than five months ago, we were and continue to be well within our rights as tenants to withhold rent.

However, even under these circumstances, in an effort to remain conciliatory with your client, we tendered payment of rent prior to April 22, 2008 – the date of your letter – as is reflected on the checks delivered to and cashed by your client. However, the lease does not provide for any delivery of the rent, and is without an address for notice. As such, the law requires the landlord present himself at the most prominent point of the property, and there, demand rent. Here, the landlord had not done so, and is without standing to make any statements to the effect that rent was unpaid. Had your client arrived at our residence and demanded rent, the rent could have been tendered. No such attempt was made.

Even more appalling was the inclusion of the last paragraph of your letter. As a member of the New York State Bar Association we, as law students, look to you and other active practitioners for guidance and role-models. Having once been a student of the law, your understanding of the stresses of law school, and the immense pressure to pass the Bar Examination gives you an expert view on the result of threatening us with report to the Bar Association. Your quite obvious attempt to extort, coerce, harass and intentionally inflict emotional distress is quite disappointing, and illegal.

The New York Lawyer’s Code of Professional Responsibility, provides in section EC 1-7, that “a lawyer should avoid … condescension toward, and treat with dignity and respect, all parties…” We highly suggest that you familiarize yourself with the document, in its entirety, but would like to draw your attention to the following:

EC 1-7: A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, court employees, and other persons involved in the legal process.

EC 7-1: The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations.

EC 7-10: The duty of a lawyer to represent the client with zeal does not militate against the concurrent obligations to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.

EC 7-19: Our legal system provides for the adjudication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate, by zealous preparation and presentation of facts and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments. The duty of a lawyer to a client and the lawyer's duty to the legal system are the same: to represent the client zealously within the bounds of the law.

Furthermore, we wish to draw your attention to the section describing misconduct by an attorney. Under DR 1-102 [1200.3], it is intolerable for an attorney to engage in conduct that violates any disciplinary rule, to engage in illegal conduct that, among other things, adversely reflects on an attorney’s fitness as a lawyer, or to engage in conduct “involving dishonesty, fraud, deceit, or misrepresentation.” Your material misrepresentations and grossly inadequate research is plainly visible in the demand proffered and threats levied against us in your letter.

In addition, DR 7-102 [1200.33] forbids a lawyer from taking action on “behalf of [a] client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” Having attended and graduated from law school and subsequently taken the bar exam, you are well aware of the ferocity of your statements and the concern, worry and upset the blackmail would yield. We are unable to conclude that there was any reason to include the final paragraph in the letter but to coerce, extort, harass and inflict distress upon us.

We trust you and your client will familiarize yourselves with New York Penal Code, section 135.60, which defines coercion as any instance where a party “compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will … perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his…career, financial condition, reputation or personal relationships.” It would also serve you well to become acquainted with statutes regarding extortion/blackmail and harassment, as well as multiple areas of intentional tort law.

Your attempt to scare us into acting against our will is reprehensible and ethically unscrupulous. We read the paragraph to be a flagrant violation of DR 9-101 [1200.45], which resolves that “a lawyer shall not state or imply that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.” You know, very well, that the New York State Bar Association is a legislative body aimed at regulating the legal profession. By threatening to report us to the Bar Association, you concretely imply that our future career can and will be affected should we assert our rights or disagree with your client’s lessor tactics and management, and that you and your client will initiate an investigation into our character.

As future candidates of the State Bar, we are ashamed of your actions, and would like the harassment to cease with due immediacy. We respectfully request that your client terminate the unfounded, unnecessary and deliberate attempts to interrupt our studies. I sincerely hope that you will advise your client that any entry onto our property without our permission constitutes criminal and civil trespass.

We intend to perform well on our law school examinations without dealing with this or any other issue concocted by you or your client.

This letter is not to be construed as a complete statement, nor is it fully inclusive of all grievances, assertions and statements of fact. We reserve our right to pursue all avenues of recourse available and the ability to exercise our liberties under the law.

Very sincerely,

We Two Tenants

cc: XXX, XX

American Bar Association

New York State Bar Association Committee on Professional Ethics

Grievance Committee for the Tenth Judicial District

Wanting Warm Water – April 22, 2008

Waking up at 10:30AM is a luxury to which I would love the opportunity to grow accustomed. I was more full of life and energetic than was normal for my otherwise genuinely bitter self. The weather has allowed me to garner a dose of sunshine every day, albeit for short periods of time. Minus the lukewarm, then freezing cold, then hot, then cold shower, the day was quite the keeper: short and happy.

I made a leisurely haul to my only class of the day, which was to begin at 10 past 1:00PM. The fifty minutes of class, as always, vanished far-too quickly to make me feel fulfilled.

When the class ended, I got back into my car and drove home. I spent nearly as much time in class as I did in my car. With the gas prices on the rise, school-based debt is beginning to look increasingly reasonable.

I was notified today that I won a relatively expensive gift-card for attending legal research training. It will definitely go to good use, and will save me quite a bit of money.

Behind the scenes - on the home front – landlord problems abound. The house that Roommate and I currently lease was an investment project by two people who had no business investing in and renovating real estate. The electrical system is the lowest quality possible. When one light goes out, all the lights in the vicinity go out at the same time. The probability of this occurring in every room is nearly impossible. The wiring was definitely not done by a professional.

Our plumbing is a classic horror. Not only do we lose all hot water in our showers after two minutes, only to regain it back ten minutes later, and then lose it again, but nearly every drain has backed up. We notified our landlord of the problem back in December, and it still remains unfixed. He sent a general contractor who spent three-hours trying to fix it, who then called his neighbor who was a plumber – I could have done the same thing. After plumber explained what to do on the phone, the contractor was unable to fix anything. Two plumbers later, we were left with a “Sorry, it is because the hot water heater is so small.” We still lose hot water after two minutes.

I have become a master-toilet plunger (and Roommate loves me for it). Not only do the toilets refuse to drain, but Roommate’s shower becomes a pool. She has tried every type of drain de-clogger (even the professional stuff); nothing works.

We have gone through two different dishwashers. What did they expect? When you purchase the cheapest model on the market, these things happen. Our washer/dryer unit has ceased working and our boiler (it is what the heating oil goes through to make thing hot) has shutdown multiple times and refused to start back up many more times.

Our neighbors love us, and really want us to stay for the next two years – I think they just like my cookies. However, I keep telling them that I think the landlord hates us. When they ask why, I usually tell them that Roommate and I want far-too-much, like heat, hot water and an electrical system that works. We ask too much.”

However, things remained cordial between the landlord and Roommate and I until recently. We have repeatedly told the landlord and their real estate agent ,who is attempting to sell the house at an astronomical price, that we will not allow them to have any “open houses.” Not only is there a dog to deal with, but I study at home. On top of that, I refuse to allow strangers open access to my residence where I have expensive items – plus, why would I allow them to have a fully furnished house (which makes it easier to sell) when we are not benefitting in any way. This was made clear.

When Roommate received a call on Saturday, it became clear that it was far more beneficial for us to have her as the point-person for the rental. I would have blown up. The landlord left a message informing us that there would be an open house the next Sunday, and that the dog cannot be on the premises.

Yeah, right. Like that is happening. I made Roommate promise not to call the landlord back unless I was present; I needed some free entertainment.

Landlord is a wimp. When she called him back yesterday, his wife was the one who was arguing with us. She attempted to tell us that they “let us have the dog in the house” and that we should let them hold the open house. Roommate blurted out laughing that they did not let us do anything, and that, again, the dog is not leaving the house, that she would be gone studying, and that I would be there studying. She also made it clear that, since final were approaching, there is not a chance in the world that they would be able to hold the open house. After the landlord’s wife made a laughable offer to have her kids watch the dog, Roommate was sure to mention the fact that the water STILL was not working correctly.

I think I want too much out of life.

Officially Wrong (And It Feels So Good)

Dear Horrible Administrative Law Judge,

You are officially wrong. Congratulations.

Very sincerely,

Me

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Where I was once using a technicality to claim an undefeated hearing record (I had lost a case, but it was on appeal, so, in reality, I had not actually lost it), I can now claim – for the time being after today’s events – that I am officially undefeated.

For over 3.5 months, my roommate and I have been awaiting judgment on the case we appealed. Having submitted quite a extensive appeal brief, we were anxious to find out the “verdict”.

As I was walking to my car to head to the hearing, I received a call from the client whose case we had appealed. A few weeks ago, we received a positive judgment in record-breaking time against this employer (in favor of our client – our appeal client’s co-worker). Our lengthy wait made up for the blazing fast speed of the other case.

My client was on the other end of the phone, and cautiously proceeded to tell me that we had won the appeal, and that he would receive unemployment benefits, as he should have all along. I literally jumped-for-joy with the good news. I hurriedly dialed my roommate, and decided to have a bit of fun. As forlorn as was possible.

“I just got a call from our client about the appeal,” I said quietly. “Yeah, this time the judgment was a bit different.”

She pushed me to tell her about the outcome. When I told her that we had won the appeal, she screamed. I later found out that the scream occurred in the middle of a crowd of people who were studying.

I am elated that we won the case, and even happier to be able to close the file of another client. That is always a good feeling.

I wish I could be a “fly on the wall” of the Employer. He is having a bad month: my roommate and I are 2-and-0 versus his company. The man must hate us; that makes me happy.

The horrible judge was officially overruled. It must feel relatively bad to have “Mommy and Daddy Appeal Board” overrule your finding. Maybe it is important to allow people basic rights. Life is good, for now.

The following is the Appeal Board Judgment on the case:

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The Department of Labor Issued the initial determination disqualifying the claimant from receiving benefits effective September 5, 2007 on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by EMPLOYER prior to September 5, 2007, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed November 29. 2007, the Administrative Law Judge sustained the initial determination.

The claimant appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a manager for a chain of five or six retail stores for approximately seven years through September 4, 2007. In July of 2007, the claimant was reassigned to a store after the manager of that store quit. The claimant made an order on July 23, 2007 which was canceled because the president believed that it was excessive. On Saturday August 11, 2007 the claimant was in the process of compiling an order when the vice-president called and directed him to go to another store. The claimant informed the vice-president that he was in the process of making an order and the vice-president again reiterated that the claimant was to go to the other store. As a result the claimant left the remainder of the order to the assistant manager who had regularly completed orders. The assistant manager submitted the order on or about August 13, 2007. On September 4, 2007, the president informed the claimant that he was discharged because he was dissatisfied with the claimant's performance. When the claimant asked the president for a specific reason of why he was discharged the president would not elaborate.

OPINION: The credible evidence establishes that the claimant was discharged because his performance of his job duties did not meet the employer's expectations. While an employer may discharge its employees for any lawful reason it deems fit, it is not every failure to meet an employer's expectations that rises to the level of misconduct under the Unemployment Insurance Law. In this case there is no evidence that the claimant's inability to meet his employer's performance standards was the result of any intentional action or omission on his part. In so holding, we note that the president himself stated that the claimant was discharged for poor performance and refused to give the claimant any specific reason for his discharge. Moreover, even if we credited the president's testimony that the claimant was in fact discharged as a result of the August 13. 2007 order, we would still conclude that the claimant's actions do not rise to the level of misconduct. In reaching this conclusion, we note that the claimant could not complete the order because he was called away by the Vice-president and that he reasonably delegated the task to the assistant manager who had regularly placed orders in the past. Accordingly, under these circumstances, we conclude that the claimant's employment ended as the result of poor job performance and not as the result of misconduct.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination of misconduct is overruled.

The claimant is allowed benefits with respect to the issues decided herein.

A Monday(‘s) Work - April 21, 2008

At 10:00AM, I was sitting in property. Two hours seemed like an eternity. This was especially so because I spent the weekend at my roommate’s parent’s house for the holiday. It was definitely a bit more intense that what I was used to, but the food was plentiful and the guests made some great conversation.

My pseudo-parents love having me around. They have three daughters, and not one son. Every time I come over, they treat me like close family, and definitely utilize my young male self. As they say, it is always good to have a son to take out the trash. And, boy, did I make a great many trips out to the trash.

Anyhow, the weekend made the wake-up on Monday quite difficult. I was to have a packed day. After the two hours of class, I prepared for my second-to-last hearing of the year. I was excited to close another case, but worried about my less than spectacular client.

This is the case that deals with multiple criminal charges, a union collective bargaining agreement, surveillance video, and a lengthy trail of allegations and complicated stories. My partner was a first-timer, so she was relying on me heavily to guide our client (and her) through the hearing.

As has become the pattern, I was told and prepared for a hot-tempered employer to sit opposite my client. I had not seen their main piece of evidence prior to the hearing, so I could only prepare for an under-described video that my client tried to tell us about.

The hearing went quite well, at first. It lasted a total of 2.5 hours, which was incredibly long. Most hearing go anywhere from 30 minutes to one hour. Because we were dealing with two allegations of petty theft (allegedly took a package on two different instances) and multiple videos, we knew this would go a little longer than normal.

There were two people on behalf of the Employer the last time around, but only one this time. He was one of the higher level investigators for the company. Ten minutes into his testimony, the surveillance video was ready to be shown. I made an objection as per the authenticity of the video, and whether or not it was an original, non-edited version. The judge noted the objection, and the video was played, anyhow.

The surveillance system saved to a hard drive in a digital version. To save hard-drive space, the video only recorded if there was movement on the screen. To make the record complete - and to really piss-off the employer – I made a verbal notice every time the time on the screen ran, and when there was no change in recording. Basically, the video had dozens of seconds of action missing. Every time I noted the still picture, but moving time, the employer became increasingly mad. This occurred a great many times, and the Employer was, obviously, angry a great many times. I had not even begun my cross examination and he was an upset man.

During his direct testimony, he told the judge that he was absolutely positive regarding certain dates. Of these dates was the day he began an investigation into the allegations. When it was time for my cross examination (“cross”) to start, I knew exactly where to start. The Judge had entered an internal memo into evidence as Hearing Exhibit 1. The Exhibit was very helpful to my client’s case.

H – Mr. C, you told the judge, not too long ago, that you are absolutely positive about the dates of certain events, right?

Mr. C – Of course. I am positive.

H – Are there any changes you would like to make to any of those dates?

C – No.

H – Would you say that, as a general rule, your memory gets better or worse over time?

C – I would assume it would get worse.

H – So, your memory on, say, January 2nd, was better than your memory now?

C – I’d say so.

H – You just told the Judge that you started your investigation on the 13th of December, is that right?

C – Yes, that is when it started.

H – On the internal memo that you authored, marked in evidence as Hearing Exhibit 1, you say the investigation began on December 17, but you just said that you are positive the date of the start was December 13th. Were you lying then, or are you lying now.

C – (Insert something incoherent and babbling here.)

The hearing only became better as we continued.

H – Also on Hearing Exhibit 1 (“HX1”) you wrote that my client put four items into the delivery vehicle, and removed one item. Is that correct?

C – Well, when I say removed, I meant that he took it out of the back and brought it to the front of the truck with him.

H – But, that is not what you said. I quote he “removes the shipment that had been tossed into the vehicle earlier and then closes the door.” Isn’t that right?

C – Yes, that is what it said. (He read the entire paragraph out loud.)

H – So, he put four items in, and took one item out?

C – Yes.

H – Leaving three items in the truck?

C – Yes.

H – You also said in HX1 that he delivered three items?

C – Yes, that is what it says.

H – So, to make this clear, you say he took three packages, and delivered three packages?

C – (More incoherent, fall-over-himself babble.)

H – That seems simple enough to me.

… Some time later …

H – You showed us surveillance video earlier. How many cameras are there in the distribution area?

C – 54.

H – How far off the ground are the cameras?

C – They are 7 to 10 feet off the ground.

H – Are they visible?

C – They are in your face, you cannot miss them.

H – Do the employees know there are cameras recording every movement they make?

C – Yes, everybody knows.

H – So, my client knew he was being recorded?

C – Yes.

H – Did you check the video of my client’s return to the facility on those days?

C – No. But I think I have it here.

H – So, it is possible that my client would be shown unloading the packages you say he stole.

C – I guess so, it is possible.

H – You surely identified the specific packages as the one’s you say were missing, right.

C – Yes

H –The company with the logo on the alleged boxes uses your company exclusively for shipping?

C – Yes.

H – So, it is safe to estimate that thousands of packages that look exactly like the ones you say were taken go through this area regularly, right?

C – Right.

H –And there is no identifiable mark that would set the box on the video apart from any other box from that company?

H – How many employees work for this branch of your company?

C – Hundreds.

(In reference to the man we viewed on the video earlier, where the person was wearing a hat, jacket and pants; no face was visible at any time.)

H – How many employees wear hats at work?

C – Hundreds.

H – How many wear jackets?

C – They all have those jackets and wear them.

H – How many employees wear pants? (My partner had to cover her mouth to keep from laughing.)

C – (With a bit of exasperation.) They all wear pants.

H – How many packages come through this facility on a daily basis?

C – Thousands.

H – How many per year?

C – I dunno. Millions.

H – Has your company ever lost, misplaced, forgotten, mis-delivered or otherwise lost possession of any one of these millions of packages?

C – It happens, of course.

H – How many people have access to these packages?

C – I dunno, I can’t really say.

H – Can you give an estimate? Hundreds? Thousands?

C – Thousands, I guess.

H –Can people from the public access the area and/or the millions of packages?

C – I guess it is possible. To be honest, people could probably steal it from the trucks when they are out on delivery.

H – You track the packages, right?

C – Yes. We use a scanner system.

H – Have you ever owned an electronic device?

C – Yes, of course.

H – Has any device you owned ever malfunctioned suddenly?

C – Yes.

H – Have any of the scanners not worked?

C – Yes.

H – Sometimes they do not scan?

C – Correct?

H – Sometimes they do not transmit?

C – Yes.

H – Sometimes they do not even download?

C – Right.

H – But it saves any information on the handheld device as a backup, right?

C – Yes.

H – Did you check the devices my client used on the days in question?

C – No.

H – You filed a police report, but you did not even investigate the allegations enough to check the device?

C – I did not feel it was necessary.

H – It is convenient for you that you did not find it necessary. How nice.

H – The packages that my client allegedly stole were not in his delivery area?

C – No, they were outside the area he was assigned to.

H – Do delivery persons ever go outside their assigned area?

C – Honestly, sometimes the supervisors will give them something to deliver that is not in their zone. So, it is possible that it could happen.

H – Did you ask his supervisors if he had been assigned to areas outside of his normal zone?

C – No.

H – How convenient, again.

H – The first incident for which my client was terminated for accused theft occurred on October 30?

C – Yes.

H – You terminated my client’s employment on December 17?

C – That is right.

H – And you later filed criminal charges on January 16, 2008, correct?

C – Right.

H – You waited 48 days from the first incident to look into a charge of theft and terminate my client’s employment?

C – Yes.

H – And then, you waited 30 MORE days before filing charges with the police?

C – It is my right to file charges whenever we want.

H – Is it company policy to wait 78 days to seek justice when your customer’s belongings are lost or stolen?

C – We could not investigate until our customers tell us something is missing.

H – You want the Judge to believe that a customer would wait 48 days to report to your company a package was missing worth over $850?

C – We can’t control what our customers do.

Before I was done with my lengthy cross that included far more than what accompanies above, I asked one final question:

“You want us to believe that, although you waited 78 days to charge an employee with the theft of a customer’s property, when all you have to support your accusations is admittedly low quality (at best) surveillance video of an alleged theft, without any surveillance of the accused that would show the return of the package, that somehow identifies a box without any identifiable markings, accessible by any one of a few hundred persons, that was supposedly never scanned nor tracked in a computer system that thousands of people can alter at any given time, when you have no idea where the package finally ended up, or who currently possesses the allegedly stolen goods, that my client did what you accuse?”

After poking so many holes in their testimony and evidence that their boat had become a splinter, it was my client’s turn to testify. He is not now, nor has he ever been, the smartest person in any room. He made worthless the better part of 45 minutes of my life with one of the first questions he answered.

Q – You watched the video earlier?

Client – Yes, I saw it.

Q – Was that you on the video?

Client – Yes, that was me on there.

I nearly lost it. I could not believe he said that. I spent a great amount of time to making the unidentifiable person on the screen out to be just about any one of the thousands of employees for the company. In a few seconds, he screwed everything up. I could not believe what had occurred.

There was only one other exchange that made my head spin. The employer was a smart guy, who caught on to the closed-ended questioning type that was needed for a cross examination.

C – Have you ever lied.

Client – I do my best never to lie.

C – That was not my question. Have you ever lied.

Client – (Obviously agitated) Of course I have, haven’t you lied.

The Employer, in all his stupidity, actually answered the posed question.

C – Of course I lie. What makes us believe you are not lying today.

Client – I am telling the truth. I did not take the packages. I haven’t ever taken anything that was not mine. I had no reason to.

The Employer turned to the Judge and said, “I do not know if this is a question I can ask, but…” He turned to my Client and asked, “Do you have a criminal record?”

Before you could say, “Why, golly-gee willickers!” I objected. “Objection, relevancy, Your Honor.”

The Judge directed my client not to answer and sustained the objection.

My closing was a quaint summation of ever hole I poked in the case.

“Scanner malfunction. Transmissions do not go through. Downloading malfunctions. Thousands can access the distribution area where there are thousands of packages every day. Thousands can access and alter the computer system. The trucks are accessible, and packages are regularly lost or misplaced. No video of my client’s return to the area after delivery. There is no evidence that my client even took the packages in question. There has been no chain of custody for any evidence, and no original evidence presented. The Employer said that items can be altered, and that employees can be assigned irregular duties. The employer wants us to believe that customers waited over 50 days to report missing shipments worth over $850. The employer wants us to believe that he reviewed hours of unclear, low-quality and incomplete video of multiple days in a few hours. He alleges that even though the video is unclear and incomplete, skipping a great amount of time, and freezes in recording, that my client did as alleged. All the evidence shown is incomplete, without proper authentication, and does not prove the Employer’s case. Furthermore, my client was making over 24 dollars-per-hour, and the highest education he has if that of high school. No person with his education level, making that much, who knew that there were cameras recording his every move would risk his job by stealing from the employer for which he had worked for longer than one decade. It is unreasonable. New York law provides that there must be a direct relation in point of time between the offenses committed and the discharge, and misconduct must be proved to be the direct cause of discharge. There is no such link here, and no evidence to support any allegations of misconduct. The employer has not met his burden. Find as the law requires: reinstate my client’s benefits.”

And, with that, the hearing ended. As we walked out, my client was pretty happy. He turned to me an exclaimed that the other guy looked horrible, and that he thought everything went perfectly. When he asked me what I thought, I replied, “I will not sugar-coat this. I have been in dozens of hearings, and this is the first time I have walked out unhappy with the way things went.”

He asked me what went wrong, and I explained that when he identified himself in the video, he shot himself in the foot. He retorted that he did not know what to say. I told him that he should have said anything but that, but now, he is on the record for life as being the person in the video. My partner later told me that her “five-year-old son knows better than to do that, and he is only five.” I could not believe it.

I have had clients who have had much stronger cases and almost lost, and clients with weaker cases who have won. It could go either way. Regardless of my client identifying himself, the Employer has an admittedly weak case that asks the Judge to make giant leaps in conclusions. However, administrative judges are not the most reasonable persons in the world. This is a grab-bag. Nobody knows what is going to happen.

My client sent the following email later:

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To: H and Partner

From: Client

Subject: you both did well

i was thinking this all over and i want you to both know i think you did a fine job. you tore this guy apart and to me he did not know what he was talking about. if the judge does not see thru this its pretty sad what can happen to anyone, at any given time of their life. i will be in touch as soon as i hear a decision. thanks again.

Client

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We wait and see.

After the hearing, I had the last Student Bar Association meeting of my life (hopefully). The meeting was a complete waste of time, and lasted no longer than 20 minutes.

I went home and got down to studying.

All in a Monday’s work.

Flashback Friday - April 18, 2008

Flashback Friday was great. I sometimes confuse flashbacks and nostalgia, though they are relatively close. New York was graced with the first day it was not outrageous to wear shorts and sandals. I could not wait to excavate my California clothing from the heap in the back of my closet. Freedom to wear what I want, without funny looks is an amazing right I enjoyed.

The day started out with a mock employment contract negotiation, during which M and I discussed the terms of employment with a set of two classmates in an effort to get our clients the best deal possible. M and I rocked the house, and left the table with terms that benefited us quite a bit.

However, when we got to the portion regarding any misdemeanor or felony arrests and the effect of such on continued employment, we unexpectedly found a piece of disagreement. The other side did not want Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) to be grounds for automatic dismissal. From this discussion, the “Mighty Ducks Provision” was borne (ca. 1992). I have included it here for your reading pleasure:

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Mighty Ducks Provision

The Employer cares for its Employees and the public. The Employer understands that no person is perfect, and that addictions are as hurtful to an individual as they may be to Employer’s business. As a result, Employer agrees and pledges, so far as they are able, to assist and help the Employee help themselves break the cycle of addiction.

Should employee be convicted for Driving Under the Influence (DUI) or Driving While Intoxicated (DWI), Employee may be permitted to continue employment with the Employer should Employee fulfill the following requirements:

Employee has not previously been convicted of either a DUI or DWI;

Employee pleads guilty in an open court to DUI or DWI charge;

Employee fulfills all terms of the Court-imposed sentence in the manner and time prescribed by the applicable Court;

The act for which Employee has been found guilty did not result in the injury, harm or death of any person;

Employee enters into an Alcohol or Substance Rehabilitation Program approved by Employer;

Employee submits to no less than six (6) months regular, unpaid community service to a youth-oriented initiative approved by Employer, preferably coaching or mentoring initiatives, such as Pee-Wee hockey;

Employee reports to the applicable Bar Associations with which Employee is a member;

Employee shall adhere to any and all Bar Association punishments and requirements as a result of Employee’s actions;

All expenses borne of these requirements are the Employee’s responsibility;

Employee takes no less than one-month unpaid leave from employment;

Employee submits to a performance and conduct review at the end of the unpaid leave to assess Employee’s adherence to the aforementioned requirements; and

Employee understands that adherence with the above requirements is not a guarantee of continued employment.

This provision, in no way, condones or induces Employee to commit any illegal crimes or acts. The Employer strictly prohibits any and all unlawful acts and irresponsibility by all of its employees.

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Hopefully my professor has a sense of humor. We shall see. (My favorite part of the provision is: “Employee submits to no less than six (6) months regular, unpaid community service to a youth-oriented initiative approved by Employer, preferably coaching or mentoring initiatives, such as Pee-Wee hockey.”)

After the morning meeting, I drove home, windows down, sunroof open. It was the happiest I have been since I arrived in the East Coast. Suddenly, I had the urge to partake in a beverage that I have not had in quite a while: Root Beer.

The soda has not graced my palette in a very long time, because I have lovely genetics that have made me susceptible to kidney stones. Soda is one of the triggers to the creation of the miniature bowel maces that wrenches your insides like a porcupine. If you have kidney stones once, and the doctor tells you to stop doing something, you listen. I was lucky enough to have the stones of death twice. Needless to say that I did as the doctor suggested.

Today was an occasion to enjoy oneself. I stopped at the beverage store, picked up some A&W, and drove home. When I got home, I grabbed my books, a blanket, some Jazz tunes and headed to the dock in back of my house with the dog to enjoy the sunshine and happiness. Of course, I sipped on my root beer.

It felt like home, especially when I was sipping the foam from my soda, as my parents let me do when they poured sodas when I was young. Memories of my pre-law days circled my mind. It was definitely nostalgia. Or, was it a flashback? Who cares?

It was a good Friday.

The Doctrine of Erie - April 17, 2008

The Erie Doctrine was finally bequeathed to us by our civil procedure professor. Law students and attorneys are most likely looking at the page with "googly-eyes" of wonderment, while the lay person is wondering why the astonished eyes are needed. The Erie case is one of the big cases taught to students during the first year of law school. These big cases are usually revealed during the first-semester. Among the big-name cases are the following:

1. Palsgraf v. Long Island Railroad (LIRR)
2. Celotex Corp. v. Catrett
3. U.S. v Bethlehem Steel Corp.
4. Campbell Soup v Wentz
5. Hawkins v McGee
6. World-Wide Volkswagen Corp. v. Woodson
7. Hanson v. Denkla
8. International Shoe Co. v. Washington
9. Pennoyer v. Neff
10. And others…

My civil procedure professor is not a go-with-the-grain-type professor. He likes to teach civil procedure backwards. Basically, he teaches second semester civil procedure during the first semester, and the first semester during the second. In his view, we then have a foundation on which to discuss the highly confusing jurisdiction topics. In reality, he allows us to watch the sheer confusion and terror experienced by our colleagues as they deal with the horrible topics we will be forced to endure.

Of the most important cases in civil procedure is Erie Railroad v. Tompkins. Just under three weeks from our final, this landmark case was revealed to us. This exciting day was marked with ye old Socratic method being used by our professor, as is usual in every class. The professor is among the most laid-back and easy-going professors a student can be assigned first semester.

The professor started class with his usual cliché greeting and called on a student to discuss the Erie case. The student looked up at the professor and said, "I did not read today."

A very astonished professor replied, "You did not read today? You skipped the Erie Doctrine? What a time to choose to skip." And, with that, he moved to the next student.

I would describe the Erie Doctrine, but I would be made fun of again for briefing cases in my spare time. Just know that it controls what law (state or federal) a state or federal court is bound to in certain cases.

Stupid class made me happy today. This very unlikely occurrence was prompted because, halfway through the two hours of boredom, the professor dismissed class. As it turns out, the only way stupid class can make me happy, is if stupid class ends early or is cancelled. Oh, the irony.

… and scene.

Halfway Day - April 16, 2008

Other than officially living through half of the week, there was nothing particularly interesting today. After my first class of the day, I had a meeting with the Law Fraternity Executive Board to discuss our vision and goals. We were all on the very same page, and agreed that the last year was a failure for the organization. It was obvious we need to do a lot of work.

After the meeting, I had stupid class. After the hour of annoyance had ceased, I went to relax in the student lounge. After sitting in the lounge for around ten minutes, the outgoing Student Bar Association Vice President walked into the lounge. He walked towards me and said, “H, you are Jewish, right?”

I replied in the affirmative. He asked if I had a few minutes to spare. Once again, I told him that I had extra time in my life. I was told that one more Jewish male was needed to complete a Minion. I obliged the request, and found myself a California Reform Jew enabling a very Orthodox New York group of men to take part in prayer.

I was very lost the great majority of time, as they were seemingly speed reading. The rapid rate of prayer allowed the Minion to occur and let the great majority of the guys make it to class on time.

After the Minion, I went back to studying and reading. I am not often upset or noticeably infuriated about the things I read in legal textbooks, as most of the findings and teachings are reasonable. One case was an exception. It ruined what was left of my day.

The case was: Hill v. Community of Damien of Molokai (for those of you in need of a citation, that is: 121 N.M. 353). The case, according to Lexis Nexis, was first heard in the District Court of Bernalillo County (New Mexico) where it was held that the use of certain property by defendant organization as a group home for individuals with Acquired Immune Deficiency Syndrome violated a housing development covenant, which limited the use of lots to single-family residences, and that enforcing the restrictive covenant did not violate the Federal Fair Housing Act (FHA), 42 U.S.C.S. §§ 3601-3631. The organization appealed.

The lower court found that the increased traffic due to the presence of the group home had detrimentally altered the character of the neighborhood and that plaintiff neighbors, who sought enforcement of the covenant, had no discriminatory intent. The Appeals Court reversed and held that the term "family" was ambiguous and that because the group home was designed to provide the individuals who lived there with a traditional family structure, setting, and atmosphere, the use complied with the covenant. The court noted that the strong governmental policy that encouraged locating group homes in single-family residential areas further justified an expansive interpretation of the term "family." The court held that even in the absence of discriminatory intent, enforcement of the covenant violated the FHA because it had a disparate impact upon the handicapped, who required congregate living arrangements in order to live in a residential community. Finally, the expansive interpretation of the covenants was a reasonable accommodation required by the FHA. However, the denial of attorney's fees to the organization was justified in light of the neighbors' nondiscriminatory intent.

Basically, the AIDS group home won the case. For this I was happy. There was an obvious element of discrimination involved. The actions of the neighbors were upsetting, but not grossly shocking.

At the end of the case, there are usually problems, explanations or notes. The very first note after this case described the unending harassment the neighbors commenced against the dying inhabitants of the group home. The note described harassment that went so far into the appalling that I had to take a break from reading. Once, as one of the AIDS-stricken tenants was being rushed to the hospital in an ambulance, one of the neighbors gathered their entire family on their front lawn, opened a bottle of champagne and toasted the ambulance as it drove by.

This was but one example of the constant barrage of harassment suffered by the tenants. It rose to a level where the group home moved to another location to get away from the neighbors.

It is hard to believe that people actually act like that.

And that was my day.

Caricatures – April 15, 2008

I need not reiterate the recurring theme of my life. However, to ensure completeness of the record, I shall do so anyway. Things do not go according to plan.

I have begun to shirk the responsibility of failed plans by placing them upon the law school, but it is not really fair to do so. Instead, I place said responsibility on the shoulders of the caricatures (little people with big heads) that run the institution of failure.

Today, at the stroke of midnight, registration opens for the entire first year class. Hundreds of people submitting course registration numbers on the same system, at the same time, spell intensity and doom. However, I get ahead of myself.

This morning was the big day for appellate advocacy. There are a lot of things at which I am relatively horrible, speaking, however, is not one of them. I am the lone student that people hate. I am the guy who would rather speak in public than die on an airplane. Yeah, I like oral advocacy (the legal kind).

Appellate arguments are a very special skill. Whereas trial lawyers speak in prose, and rarely argue or are attacked, appellate arguments take quite a different turn. There is no jury. Instead, there are judges. These judges can cut an attorney off as they see fit, and constantly attack the stance of the attorney. It is very much like the televised congressional hearings where the person testifying is under a constant barrage of unfriendly attacks. Basically, it is fun.

I loved my ten minutes of argument. Constantly dodging bullets, knowing the record and using statutes and caselaw in argument yields much joy for me. After each pair of attorneys went (M and I versus annoying guy and quiet girl), we received critiques from the judges and our professor. M, who thought she was going to bomb, did wonderfully, and it showed. I was very confident in my performance, so when they gave me my sole piece of criticism, I was shocked. This time, M was shocked right along with me.

The judges and professor said, “You were noticeably nervous.”

What! Noticeably nervous? Not something I hear on a regular basis.

I looked to my right and saw M hurriedly scribbling on her pad of paper, attempting hiding a smirk. Her note read “They obviously do not know you! Perhaps they mistook your intensity for nervousness!”

I will get over it, though.

Annoying Guy was not a person whose abilities could be pinpointed ahead of time. M and I believed that one of two things would occur. Either he would do as we envisioned he would, and bomb the oral argument, or he would surprise us all. Interestingly, our gut instinct was correct; Guy did not do very well. He was caught misquoted the record, and was lambasted for it. He did not handle the tough questioning well, and stumbled around. It was painful to watch.

After the argument I went to meet with Professor B, who had been a roadblock in the way of the founding of the competition organization. She is a keystone to our becoming a recognized organization, but felt what we considered to be (and could only imagine was) territorial, as she is the Head Advisor for the Moot Court Association.

The meeting, as with (seemingly) every meeting at the law school, was very adversarial from the get-go. We walked in calm and collected, with diplomacy on our minds. Our plans quickly disintegrated into an attempt to argue using reason. Reason, in law school, has been proven futile. We went back and forth, and sent volleys at each other until both our battleships were sunk.

Surprisingly, we walked away with a very decent agreement. It is a good thing negotiation is one of the three competitions in which we will field teams. Now we have to go back to the Office of Student Affairs. This is never a fun trip.

Before we left the office, we were surprised with an exchange between C – who, in the future, you will hear quite a bit regarding – me and Professor B. C is the reliable person who was elected Vice Justice (Vice President) of the Legal Fraternity, when I was elected Justice (President). He and I were both under the relatively confirmed assumption that Professor B, with whom we were battling, was our Advisor for the organization.

When we talked to her about our new positions, she was astonished to hear that we thought she was our Advisor. She said she held no such position (even though she is recorded as being such).

C turned to Professor B and proceeded to ask her if, in that case, she would be willing to be our Advisor.

We walked out of the room with a negotiated agreement and a new advisor. Surprise!

As C and I headed to class, we were quite happy with our performance, and sat through the next hour of class content.

As if the day was not long enough, registration required me – and every other student – to remain awake until the (literal) stroke of midnight. As stated previously, hundreds of people would attempt to get classes before anybody else could. Classes had already begun to fill up, and others were completely full.

It would be the first to click the submit button. I had all my classes laid-out and ready to go. I had backups prepared, and I counted down the ticks to midnight.

I had planned the following schedule:

T/Th	2:10-4pm	Criminal Procedure I
T, Th, F	12:10-2pm	Family Law (with Skills)
T/Th	(T) 4:10-6pm, (Th) 4:10-5pm	Constitutional Law I
M/W	(M) 6:10-8pm and (W) 8:10-10pm	Evidence
W	2:10-4pm	Juvenile Justice Seminar

But, I ended up with these classes:

Th	10:10am-12pm	Voting Rights and Election Law
T, Th, F	12:10-2pm	Family Law (with Skills)
T/Th	(T) 4:10-6pm, (Th) 4:10-5pm	Constitutional Law I
M/W	(M) 6:10-8pm and (W) 8:10-10pm	Evidence
T	6:10-9pm	Child, Abuse & Neglect

Obviously, plans failed. Many of the classes I wanted to take, and even some backups, filled up before I had a chance to register. This is just another sign that the caricatures are very out of touch. I do, however, have a decently nice schedule. I really hope I will enjoy taking night classes. Luckily, they get increasingly late as the week progresses. It builds of the impending craziness.

In blocked out form, my schedule looks like this:

	M	T	W	Th
10
11
12
1
2
3
4
5
6
7
8
9
10

This will give me the opportunity to engage in a part time judicial clerkship or just relax on Mondays, Wednesdays and every other Friday.

I had promised to place a follow-up call to the Judge in the prior conversation. After I spoke with my friend’s father (the Judge) I went to sleep. I was so drained from the long, exciting day that I was unconscious within seconds.