CHAPTER 1

The Law, Lawyers,and You

There is an old adage—and if there isn't,there should be—that says, "There are somethings so complicated they are not worthgetting involved with."—BFB

The law has been spoken about with irreverence, sarcasm,contempt, disdain, and rebuke. Conversely, on other sideof these positions most would agree that the law should beidealized as a symbol for order, discipline, and control of certainrelationships in society. The law represents the maintenanceand enforcement of some structure that provides for definedrelationships between people and things affecting ownership,freedom, and the rights of the individual in an organizedsociety. Once you recognize that the "law" is a mere structurefor promoting conformity and compliance in a civilly organizedsociety, there is much less sting in the pain of one's criticism.The "law" represents what should be the rules of society to lead,guide, and direct behavior between the individuals of a societyin their personal lives and the life of a society. These laws arepromulgated by those in positions of power, charged with theresponsibility for deciding what the law should be.

The "law" standing without the benefit of interpretationwould be mute and would carry no meaning. We derive meaningout of life in all its aspects from the interpretation of the languageconveyed. Our judicial system has evolved over many years, andhas been concerned about the interpretation of language. You arefamiliar with some of these words: "freedom of speech," "freedomof religion," "due process," "civil rights," and on and on.

This process of interpretation is a daily struggle in the life ofa judicial system. As a sophisticated society, we have grown veryconcerned with what is being thought by those in positions ofjudicial power about what certain things should mean. However,in reality, there is a practical balance of opinion on almostevery public issue that accounts for a stalemate in the weightof any one favored direction. So, everything eventually tendsto equal out in the position between extremism and the state ofbeing conservative in our society as a part of the social process.Irrespective of this balance in the societal arena, there is still acontinuing squabble over those who have the power to influencethe swing of the pendulum in the judicial process. Ideally, thejudicial process should mirror the profile of the society in whichit operates.

The more direct and immediate impact affecting theascertainment of the values considered essential and importantin any society is the vastness of diversity in its morals, dogma,and culture.

In the society of which you are a part, there is one idea, oneunderlying process, one persistent driver, and one non-erodingquest that remains a steadfast, insidious goal of many of itsmembers. This goal is the discussion of this book.

Noteworthy and obviously noticeable, this one word has beenintentionally omitted from the previous paragraphs. This wordhas caused more problems in the history of mankind than anyother word. Even though this word is a part of freedom, it is also apart of bondage and slavery. There has been a continuing fight tomaintain this word's influence in our life and in our society. Thisword represents and means responsibility and what's necessaryfor stabilizing a reasonable balance between polarized forces thatgrind toward making new ways and new ideas in our society.On the other hand, a vigilant lamp is always lit to impede theoverzealousness of manipulation to assure that there is neveran irresolvable barrier in the direction of anyone's destiny. Thisword that has been the biggest catalyst for changes in the life ofmankind and the world is "control."

Control inevitably is one of the major components in life.There are those who seek to control and there are those who resistcontrol. There are those more in control and there are those in lesscontrol. There is an underlying belief in any civilized society thatlawyers are in control of many things influencing the society'sfreedom, liberty, peace of mind, well-being, and the security of itsproperty. Lawyers have played a decisive role in the developmentof a modern way of life in this world.

Control Is Everything When Moderated

The major involvement in the development of a moderncivilized society is how "control" is going to be balanced for themutual benefit of all the interested parties involved. When youstudy the United States Constitution, you realize the documentcreates a central government of "enumerated" powers. Regardlessof what culture you emerge from, "power" has always beenequated with the "capacity to control." Control, as noted above,is the quality that a government must have in order to fulfill itsmission to its citizenry.

When you trace the history of the development of powerbetween any government and its citizens, you will eventuallydiscover an evolving struggle between the two. This is an ongoingprocess and should never be expected to terminate. Aside fromthe long process of how a national government has evolved to itsposition of exercising its powers, states likewise were vested withthe power to control their own survival and the relationship ofpeaceful civility between their citizens. The establishment of bothnational (Federal) laws and state laws is the essential means by whichthe governmental systems, both state and Federal, survive. Statesallocate authority to counties within the states to exercise power inthe form of establishing laws to promote, protect, and provide fortheir citizens. Then, municipalities are further given authority topass their own laws to regulate civil life in the community.

So, we all have to recognize and acknowledge that laws areubiquitous. Without laws, there would be no organized control ofour society. Without the necessary structured efforts being madeto promote civility in our society, there would be only a low qualityof life without safety, security, peaceful enjoyment, tranquility,or peace of mind. Whether you like it or not, control throughexecution and enforcement of the law is absolutely essential tocontinue in the style and quality of life we have so progressivelyacquired. This has not been attained without conflict, difficulty,struggle, and consternation. Mankind has fundamentally resistedmost efforts to control his basic behavior from the earlier time ofhomo erectus up to the current time of the latest celebrity resistinga charge of D.U.I. When you think about it, the entire history ofmankind has been a struggle over "control"—from religion topolitics to the institution of marriage.

When you stop and realize that, overall, the law represents aform of control, you should instantly recognize that the internaleffects of control and its aftermath must cause conflict.

Lawyers Are Bridges Between You and the Law

The lawyer is perceived as one in society who has a uniquerelationship with the law. Most of us don't think much aboutthe fact that the law is so inherently interwoven into the heartand fabric of our lives. The law is an essential part of all of ourlives to a real extent. Some people are luckier than others inthat they may go through life without ever having to consulta lawyer. Others become very familiar with lawyers and theirrole in society as having the means and ability to help you avoidconflict, minimize conflict, and minimize the damaging effectswhen conflict arises.

Lawyers have learned how to deal with power. If you hadthe ability to deal with power and conflict, you would not need alawyer. The point is that lawyers are essential to the preservationof life and society. Some even reflect that the legal profession andits lawyers are a necessary evil. However, lawyers are "conflict"specialists. They deal with power on a daily basis to assist theirclients in restoring the status quo in their lives.

There are many treatises on the shelves of bookstoresblasting lawyers as thorns and weeds in the garden of life,thieves with a license to steal, betrayers of the justice system,diabolical perpetrators of injustice, out to destroy the family andpromote moral decay. The list could even go on. The truth is thatsome of this is true but most of it is not. These broad sweepinggeneralizations really aid no one. No system is perfect. Doctors,engineers, preachers, and even salespeople have similar problemsbecause they are in service businesses where people enter intothe relationships with different expectations and perceiveperformance beyond what is often considered reasonable andappropriate.

When You Need a Lawyer, You Need a Lawyer

There are also many books loaded on the shelves of bookstoreswhich attempt to broadly and generally advise you on variouslegal matters. These books serve a good general purpose but mostoffer the proviso and admonition that such a book should neverbe construed as a replacement for a lawyer. When you need alawyer, you need a lawyer. There is no attempt here to advise youof the general principles of law. Most of us are surprised abouthow much is known in society about child custody, accidents,contracts, bankruptcy, divorce, employment rights, malpractice,real estate, corporations, insurance, patents, copyrights, wills,workmen's compensation, product liability, and even estates.You likely read newspapers and magazines and watch TV justlike everyone else. You probably know a little bit about all theseareas.

The point is that if you are not a lawyer when you have a legalproblem, you need a lawyer. Then, on the other hand, when youare a lawyer and have a personal legal problem, you still needa lawyer. Someone wisely stated that the lawyer who acts as hisown lawyer has a fool for a client.

You can read all the books from the bookshelves and maynot be able to advise yourself if you actually do need a lawyer.To be able to render competent legal advice, a lawyer must notonly know the basic principles of law involved but must alsounderstand the practicalities of pursuing a remedy or solutionin terms of the overall benefit for the client. These are questionswhich are not answered merely by reading Everyday Law MadeSimple. Legal advice is more than just knowing the right answer, asyou'll discover ahead. Don't let this admonishment be a downer.Go buy all the legal encyclopedias and law guides you want, butnever ever think, even in the slightest of moments, that you candecide if you can handle your own legal problem. If you thinkyou have a legal problem before you try to advise yourself, restassured, you will after you take your own advice. Giving yourselfadvice is often on the order of a self-induced lethal injection.

The market is plentiful with "do-it-yourself" kits coveringeverything from setting up your own corporation to craftingyour own divorce settlement, estate plan, and will to filing yourown personal injury suit. These initially inexpensive shortcutsare green pastures for lawyers. Lawyers love for you to "do ityourself."

Can you do it? Sure, you can, but you don't know what you aredoing. All you are doing is filling in the blanks. It's like learningto fly a plane by passing the written test or like learning brainsurgery by reading the surgical procedure book. Knowledgeshould always be accompanied by common sense. Commonsense dictates that just because you have a surge of "feeling youroats," you don't go and try to do your own thing. If you do, it justmay take two lawyers to get you out of the jam you put yourselfin when you were dreading seeing just one lawyer. Now followthis to the next chapter and be glad that you decided not to doyourself in by acting as your own lawyer. You are worth savingfrom yourself and your lawyer.

Watch for Mr. or Ms. Lawyer "Know-It-All"

One final note here: when you finish reading this book you'llreally appreciate the complexities of the legal profession andthe difficulties all lawyers have with it. If the lawyer you havechosen after reading Chapter 3 tells you that he or she has neverhad any problems understanding the law and its application,thank him or her and then get out of that office immediately.You would probably be well advised not to even take the time toretrieve your hat and coat. Competence, training, and educationare very important but they are not absolutes and no one seemsto have ever cornered the market in knowing all things anddoing all things to the full satisfaction of everyone. Arrogancecan be rampant in the legal profession. Better luck on your nextshopping trip ...

CHAPTER 2

Do You ReallyNeed a Lawyer?

There is an old adage which says,"People are afraid of what they don'tknow." This needs some modificationto a new adage which allows that, "Mostpeople are afraid of what they don'tknow only if they realize that theydon't know."—BFB

Do you really need a lawyer? At times, this question isnot easily answered. Sometimes it is obvious. Everytime, it should be carefully analyzed, studied, andevaluated from a number of perspectives which we will attemptto examine. There are those who avoid lawyers when only alawyer could possibly solve their problem. There are others whocall their lawyer at every slight incongruity in life that might notmeet their exact expectations. This latter group is better labeledas "P.I.T.A.s" which is an acronym for "pain in the anatomy."In some circles the last word in the description is substitutedwith another. P.I.T.A.s are difficult people to work with since thislawyer is steadfastly attempting, at least initially, to maintaingood public relations with all of those who would darken hisdoor seeking representation. Lawyers want clients who will placeconfidence and trust in his legal abilities to thwart any of life'saggravations which could be soothed by application of goodrepresentation in the legal process.

You Will Not Have a Problem Getting to Talk to aLawyer

A lawyer, most often, will talk to a potential client aboutalmost anything regardless of the subject's level of stupidity,ignorance, or even irrelevance. However, you are not requiredto use much of your imagination to appreciate that lawyers arelooking for a legal problem that not only has some substantiveissues which can appropriately be dealt with using their skills,but a problem that also is of some gravity and import worthy ofengagement. When the case is of such significance, the lawyer canthen be justified in applying their system of receiving fees for hisor her services. Otherwise, the case problem is one of a nuisancewhich will net little satisfaction for the client and only a small fee,if any, for the lawyer. You'll discover that the smaller case is oftenas difficult to solve as the larger one, and more often than not ismore difficult for the client since no lawyer wants it and the clientdoes not know how to go about getting it solved.

Let's Talk About a Potential Legal Problem

An example might be if you own a home in a subdivisionwhere the yards are separated by a common fence. However,there is a tree in your neighbor's yard that is leaning over towardyour house. If the tree is blown down because of a strong stormthe tree would fall across your house. You have asked but theneighbor refuses to cut the tree down even though you havecontinued to lose sleep over your anguish. You want to sue tomake the neighbor cut the tree and for money damages for theresulting mental suffering you have endured because of yourneighbor deliberately refusing to cut the tree. When a lawyer ispresented with the psychiatrist's bills along with prescriptioncosts, it is difficult to deny that the client is serious about theirlegal position. A lawyer's dilemma here is whether this caserepresents one within his skills, ability, and training, whetherhe believes the case has any merit for which a reasonable legalsolution may be acquired, and whether the case is worthwhile forthe lawyer and the client. Don't scoff at these facts! People everyday in life are burdened about situations for which they have noapparent solution. This brings us to the point of this chapter.

Will "Common Sense" Do the Trick of Solving MyProblem?

The question in every potential client's mind is whether alawyer should be consulted, or can I, as a reasonably intelligentable-bodied human being, make application to my own reservoirof common sense to solve the problem? The question of "commonsense" is a tough one. The most difficult problem for the layperson is to compile an inventory of reasonable approaches basedon education, training, and experience to assist him in solving hisparticular problem. This not only takes considerable experiencein life but some rudimentary familiarity with legal principlesand procedures. Even a little knowledge can be a most desirableand useful asset in a life problem/solution. However, there is a"catch-22" here because the old adage about a little knowledgebeing a dangerous thing looms heavily, just waiting for its chanceof application. Most of those who know more than a scintillaabout their legal rights and the practicality of pursuing them havehad some experience in the legal arena and base their reasoning—rightor wrong—on what they have observed. Where do we gofrom here in evaluating whether or not you need a lawyer?