Lawyer Speak Must Be Translated To Common Words

Even if a legal professional may be lucky enough to speak with a client in the native language of the client, the attorney tends to use a special set of words unique to the profession.

Experienced professionals who have grown comfortable using the words of the profession might want to think about whether they are using words not commonly used by non-professionals.

For example, a real estate attorney might use specific real estate words, easement, etc. unfamiliar to many. Patent attorneys speak a rather unusual language even though it is English. They use words like "prosecution". Most clients unfamiliar with patents, think of prosecution as what a prosecutor does but no, in the patent specialty arena, it refers to the events that occur between filing and issuing a patent application between the government agency and the patent attorney.

The first step in building a good relationship with a client is recognizing that the professional, particularly an experienced one, uses words that are quite often unfamiliar to their client. The second step is to translate those words into words the client is comfortable with using, without misrepresenting any facts, timelines, or details that are materially important to serving the client.

Recognizing the special language spoken by the attorney, and tuning that vocabulary to communicate on the same level as the client, is critical to the success of the attorney/client relationship. By recognizing differences in vocabulary the attorney can build from a common basis with a client. That common basis is fundamental to building a trust relationship that can last for decades.

The following are examples of lawyer speak translated to common vernacular:

Synthetic Drug Use and Accidents: A "Moving Target” of Ever-Changing Substances

Synthetic drug use continues to be a major hazard causing traffic accidents. Last month, in Wisconsin, a truck driver was charged with two felonies for allegedly smoking synthetic marijuana before causing a fiery nighttime crash that killed a central Minnesota truck driver on Interstate 94 in western Wisconsin.

Recently in Northwest Louisiana, 24,000 grams of synthetic marijuana was confiscated and several people arrested as part of an in-depth investigation that began in April of Caddo Parish area businesses.

The seizure came as the result of an in-depth investigation initiated in April of 2012 as a response to allegations of the distribution of illegal narcotics at area businesses. Based on information and evidence gathered during that investigation, agents served search warrants at several businesses, as well as at residences, storage buildings, safety deposit boxes and bank accounts connected to the investigation.

The DEA and other law enforcement agencies started raiding smoke shops and other sellers of synthetic marijuana and other synthetic drugs -- like bath salts -- in about 100 cities nationwide.

Synthetic drugs, initially marketed as "legal" alternatives to such drugs as cocaine and marijuana, have been linked to more than 20 deaths nationwide. Drug agents and health professionals have been warning these new designer drugs, including synthetic marijuana products sold as incense and bath salts, haven't been tested or approved for human consumption and can mimic the effects of cocaine and LSD.

Besides being cheap and easily obtained, they do not show up in common drug tests.The products are often packaged as incense or bath salts and can be obtained for as little as $10 at many head shops. As more people experiment with them, the results are becoming evident at hospitals: a sharp spike in the number of users who show up with problems ranging from labored breathing and rapid heartbeats to extreme paranoia and delusions. The symptoms can persist for days.

Testing for Sythetic Drug Use?

This is new territory for the  forensic and crime lab community,” said Mike O’Connell, communications director for the Missouri Department of Public Safety, the administrative agency over the Missouri Highway Patrol. In Greene County, drug charges are only filed after the highway patrol crime lab confirms that substances seized by police are in fact illegal.

“The testing of controlled substances used to be a black and white issue,” O’Connell said. For synthetics though, prosecutors need labs to make a call on whether or not a chemical structure is “substantially similar” to a specifically outlawed chemical.

“That is an excruciatingly difficult proposition,” O’Connell said. “A lot of this stuff falls outside of the expertise of the highway patrol crime lab.” And most other labs, for that matter.

Battlefield Blunders As Decisive As Brilliant Tactics: New Ideas to Defend the Trucker

Battlefield blunders can be as decisive as brilliant tactics.The battlefields of history are littered with losers who failed  to recognize and develop new strategies.

Burnside at Fredericksburg: The Battle of Fredericksburg was a humiliating meat-grinder of a defeat for the Union Army, and the fault lies squarely with General Ambrose Burnside.  The man would be forgotten today but for the fact that he lent his name to excessive cheek hair.

Custer at the Little Bighorn: Why Custer thought he could go hey-diddle-diddle-right-up-the-middle into a swarm of angry Indians remains a mystery. The Plains Indians were among the finest cavalrymen ever.  When the repeating rifle came into their hands, they weaponized a Spanish import: the horse.

I  consider every  case as a potential battle, or least a skirmish, that must be carefully executed. We cannot follow the fate of the unprepared or misinformed in defending our client, particularly trucking clients.

We must not be like the ego-centric Custer and wallow in the war stories of past glory,  while ignoring new means and methods of defending against actions. We must constantly look for new methods of proof.

We must continuously consider and develop new means of persuasion. I would welcome your unique ideas on how to better represent the trucking industry.

The following is a brief overview of some of the tactics that have been successfully employed.            

1. VIDEO CAMERAS

Upon arrival at the accident scene, immediately check for video cameras-public or private.

Sure, it's a long shot that any are present or even longer that the accident was caught on film, but you must act immediately to have any chance of preserving any possible capturing of the accident on video. Even a snippet of information can corroborate speeds.

Recently, I told a client that I had wished we had obtained the surveillance information immediately following the accident. He was somewhat perturbed for making this suggestion. I was not implying that he or his scene investigator had  done anything wrong, but I knew this area and I knew that there were cameras all around the truck stop. Had we received this information sooner, we may have learned that the plaintiff had been driving at a high speed and could have avoided our driver who was making a left turn from the  truck stop.

Video cameras can be both public and private. From municipal intersection cams to business security cameras, the myriad of possibilities constantly increases. Although it is rare that municipal or cameras on the highway, preserve the information, a  security camera outside a business captured the landing of the airliner on the Hudson River. My investigation of this particular area revealed that there was  convenience store surveillance camera that would have  captured the vantage point of the plaintiff. There was also a surveillance camera at a fast food restaurant that was directly pointing at where our driver would have been pulling out.

If you want this stuff, you need to get our there quickly and preserve it. Rarely does the private company keep this data more than a few days. Wouldn't it be great to have unbiased documentation of your driver's version in an intersection accident.

Lucky? Luck is  the by-product of anticipation and preparation.

2. EARLY SURVEILLANCE

If you do traditional surveillance, do it early, immediately after the accident. Frequently this is far more productive than later when claimants are warned by an attorney or guarded for the sake of litigation.

3. CHEAP SURVEILLANCE: SOCIAL MEDIA

Social media is everywhere.  Younger generations live there, but even the  older generations engage it regularly. People constantly post their activities and photos. Those who do so before or after they assert a claim against our companies are handing us a gift.

A few years ago, I was defending an alleged closed-head brain injury claim. The plaintiff stated there were numerous activities, she was unable to do, including being in crowds. Oddly, she posted on Facebook, movie scenes in which she played an extra.

We cannot waste this resource of cheap surveillance. Act fast because personal injury lawyers know we are asking for this information now. Facebook has limited the access to this information, but good discovery questions can ensure this information is made available to you.

Check available public sources immediately upon the accident, before it can be taken down. All to often, by the time a lawsuit is filed, the information has been privatized or deleted. When your hire an attorney to oversee the investigation of an accident, you should also have him check public access to social media.

Neither you nor your lawyer can befriend someone, but often social media is not privatized, at first. Download and preserve photos and videos. Then follow up regularly. You can often save the expense of iffy surveillance by capitalizing on "self surveillance".

There are ways to request this information in discovery, but it's more difficult to get. Better to get it early and preserve that information for use later.

Legal Ethics in Social Media: Legal Blogs, Firm Web Sites and Marketing Sites

This comic strip portrays the view that many of us have about ethics: the rules only apply to someone else.

I am as guilty as the next guy in seeing my world through my own prism of what I want to do. On the big issues, I have no problems. I would never steal a client's money or get involved in a conflict of interest. Marketing the firm is a problem for me. I want to do it ethically, but I also want clients and potential clients to be aware that we are available. 

The Internet is wide open market, perhaps to open.

It may not be the best place to market to a specific client, but in reality, we are not supposed to directly solicit clients by any means, right? We all know of  personal injury lawyers who make direct solicitation of people who have been injured by requesting the accident report. Fortunately, many states have curtailed that practice.

However, what about the insurance defense lawyer who makes a contact with potential client over a new lawsuit? That is just as clear a violation. Even if the company is a member of association you are a member, be careful how you make the company aware of the claim.  

The general information on websites is a bit more problematic because you may not be directly soliciting, but are you still in violation of ethical rules?

The following information was presented for publication in The Transportation Lawyer, a publication of the Transportation Lawyer's Association; however, for those who are not members of the TLA, I am offering my thoughts on the subject here.

Like many other attorneys, I have website and blog. I strive to educate clients and potential clients about issues that may result in their calling on me to assist them in the future. When I make relationships, I stay in touch with the client in the event that they need my services. In the zeal of keeping clients informed or making new relationships, I must be ever mindful of ethical rules.

 

Even if you have a national client, you are still subject the ethical rules in every state you are licensed. The Internet may be global, but your State Bar Association dictates the  ethical rules  for YOU. In an effort to give some guidance on this subject, I have outlined some basic rules to keep in mind regarding “social media.”

 

Beware.  These are just basic guidelines. You should consult the guidelines of every state you are licensed to ensure that you comply.

1. MAKE NO FALSE OR MISLEADING STATEMENTS

Bottom line:

Do not misrepresent yourself, your services or your capabilities.

ABA Model Rule 7.1 prohibits false or misleading communications. Social media creates a quick and powerful form of marketing, but do not mislead the public.

For example, we should all review and regularly monitor client lists. If a client is no longer in business, has changed its name or no longer uses your firm, you must remove them from a list of representative clients.  On the other hand, just because an institutional client has not used your services in a while, shouldn’t require you to remove them as representative clients. Names that you KNOW are no longer using your firm, should be removed.

Also, in the enthusiasm to build a practice, lawyers should be cautious not to overstate their capabilities and experience.

 2. NEVER  BETRAY CLIENT CONFIDENCES

I read recently where a former Illinois assistant public defender had her law license suspended for 60 days because her blog postings exposed client confidences. She thought that she was blogging about her clients anonymously; however,  Bar authorities concluded that she provided sufficient detail in some posts to allow specific clients to be identified.

Best Advice: Never blog about your own clients or cases, except as to details that have unequivocally become public. There is a great deal else for you to blog about.

3. AVOID FORMING ATTORNEY-CLIENT RELATIONSHIPS

Many lawyers don't answer Q&A forums on sites for fear of forming an attorney-client relationship. However, the  Ethics 20/20 Commission suggests that this danger exists only when the lawyer gives the prospective client a "reasonable expectation" that he or she is willing to form an attorney-client relationship.

A lawyer can participate in these forums but also disavow any "reasonable expectation" by expressly using cautionary language and disclaimers in an answer.

Responses should be general and avoid responding to specific facts. Clearly state that your  answer should not be considered legal advice.

4. BE WARY OF THE UNAUTHORIZED PRACTICE

If you are admitted only in one state, you cannot give legal advice in another state.

Be advised against giving fact-specific advice online. Include disclaimers in any answers to specific questions. There is a big difference between educating and advising, but you can be caught in a trap if you don’t keep the difference in mind.