|Watch Me Take The Bar|
|This blog, originally started as a chronicle of my taking the bar, is now a look into the mind of an attorney in solo practice in Port Clinton, Ohio.|
Saturday, July 30, 2005
And Now, Some Friendly Advice For Proto Attorneys
For the past ten years, I've worked during the summers for my local prosecutor's office. (Yes, I started when I was in tenth grade as a volunteer because I couldn't be paid yet, okay?) The experience has been invaluable, because I've learned so much about the law they just don't teach you in law school.
This was brought home to me when I'd been there a few years and a newly-minted lawyer was working on something, and didn't understand what a judgment entry was. So, I (who was by that point about a senior in high school) explained it to him.
Please remember, there are all sorts of pratfalls and nooks and crannies to the law that they never got near in law school. If you are going to practice in several different courts, which most of you will, they will all have different ways of doing things.
But this judgment entry lesson came back to me today when I was reading the case of Long vs. Long out of the Sixth District Court of Appeals for Ohio. (Yes, I realize it's sickening I'm sitting here reading decisions less than forty-eight hours after the barzam, but this stuff interests me, what can I do?) It's a good reprise of the judgment entry lesson, as well as a lesson that YOU NEED TO GET JUDGES TO SIGN ANYTHING YOU WANT TO HAVE ENFORCEABLE MEANING.
Let's start with a judgment entry. (And, by the way, I apologize to those of you who are familiar with these terms and I do NOT want to sound patronizing; on the other hand, if someone doesn't know this and waits six months, it could be embarrassing for them and their clients.)
Let's pretend I'm not a proto-lawyer (thanks for the term, GG) but rather just a civilian who's hired you as a lawyer. Now, the people across the street own a dog who barks every morning between 4:45 and 5:30 AM, waking me up. We have a hearing; there are opening statements, I am called to the stand and, with bags under my eyes, testify to what the Hound from Hell has done to my sleep patterns; and the judge is suitably impressed that, from the bench, he orders the neighbors to muzzle their dog, and if they don't, I'll have the right to remove the little mongrel's vocal cords. (Note to everyone, I'm not this vicious generally but you try being woken up every morning at 5 and see how pleasant YOU are to the beast.)
OK, so, you're happy because you just won your first case, and I'm happy because I'm finally going to get some sleep. On the way out of the courthouse, you're even happier when I tell you the next evening I'm going to a cocktail party and I will recommend you to all my friends. You deposit my check in the appropriate account, and I go home.
That evening I go to sleep, only to be awoken at 5:00 in the morning by the barking dog. I walk over to the neighbor's house and begin to remove doggie's vocal cords. (Note, (a) this would never be relief granted; (b) I'd never do this; (c) I'd have no clue how; (d) this dog would probably have me dead. But it's a hypothetical!) My neighbors, who apparently love their dog and his melodious morning missives, call the police, who come and arrest me. As I am loaded into the back of the police cruiser, I say confidently, "I have nothing to fear! The judge told me I could!" I use my one phone call to call you, and you confirm this opinion and appear next to me at arraignment (before, of course, a different judge than the one who heard my case.) You say, "Judge, there's a perfectly good reason Mr. Bassett will be found not guilty, and that's because Judge Down The Hall ordered yesterday that he could do this." The judge at the arraignment looks down his nose and says, "Oh. Can you show me the judgment entry?"
You reply, "What's a judgment entry?" Amidst the laughter of the other practicing attorneys in the room, I barely hear the judge set my bond as I am taken back to the clink. Only once there, in talking to a jailhouse lawyer, do I learn that the court speaks ONLY through its judgment entries. An oral order is barely worth the paper it's printed on. YOU, as the victorious attorney, need to prepare a judgment entry.
How do you do this? Well, when you file a motion, you also compose a judgment entry for the judge. So, if you're moving to get me out of jail, you file your motion, and then you also write something up saying, "Because Michael's bond is excessive, the Court hereby orders it reduced to x amount and he is to be released upon payment of that amount." Basically, type out what you want the court to say and put a signature line under it.
You wish, as you walk slowly out of the arraignment courtroom, that you'd known this before. Because you know that right now I am paying off a guard at the jail to let me make one more phone call, to the hostess of that cocktail party I was going to tonight, to explain WHY I won't be there, and exactly WHOSE FAULT the mess I'm in is.
So, how does this all relate to Long vs. Long? Well, Mr. and Mrs. Long, in July of 1989, got a dissolution of their marriage. In the final decree, signed by the trial court, they discussed Mr. Long's pension, and reached an agreement on how that would be allocated...basically, he'd assign it to Mrs. Long. This also included a clause that "[e]xcept as provided herein and in the [order allocating the pension], each party releases any rights he or she may have in the vested pension rights of the other."
They send off the agreement on the pension (which is still unsigned) to the pension administrator, who writes back and says that, under Ohio law, public employee pension benefits are not assignable or subject to any other process of law, and hence, the judge does not sign the pension agreement. So, on November, 1989, Mr. and Mrs. Long sign an agreement, where they say Mrs. Long will get 1/2 of all of Mr. Long's pension benefits (both during and after the marriage.) They file this in court, but never have the judge sign it.
Fast-forward to February, 2003, when Mr. Long begins to receive his retirement benefits. Shockingly enough, he forgets to send Mrs. Long her half. Mrs. Long files a motion for contempt of court, to which Mr. Long (by and through counsel) replies, "Well, my ex is entitled to, at most, 1/2 of the benefits I racked up during the marriage, but nothing else." (So, in other words, Mrs. Long says she should get 1/2 of all benefits from 1981-2003, which is what the agreement provides for, while Mr. Long says she should get all the benefits from 1981 (when he started in the plan) through 1989 (when they divorced.))
The Common Pleas Court magistrate, and later the judge, says, "Mr. Long, you signed an agreement in November, 1989, saying you'd give her 1/2 of all your benefits, and that's what you're going to do." The Court orders that, to keep his agreement-breakin' butt out of jail, Mr. Long needs to pay her half of all his benefits and the amount he had thus far neglected to pay her.
Off we go to the Sixth District Court of Appeals. Mr. Long argues that he can't be held in contempt of court because the court had never ordered him to pay 1/2 of his whole pension to Mrs. Long; he simply signed an agreement with her to that effect, and all she's entitled to under Ohio law is 1/2 of that which he got during his marriage. In other words, it's the "I might be a sleaze, but I'm not a contemnor" defense. The Sixth District agreed with him. The court never ordered Mr. Long to pay Mrs. Long any amount of money, so it couldn't try to enforce an order that didn't exist.
So now what happens? Mr. and Mrs. Long go back to common pleas court, where Mrs. Long's attorney will argue Mrs. Long should get half of his pension benefits for the period of their marriage. The best case scenario for her now is that she only gets the amount from 1981-1989, while he keeps everything from 1990-2003.
Now, we can all have a discussion over whether or not she should get the other thirteen years, but that's not the point. The point, fellow proto attorneys, is this: She would have gotten those other thirteen years without a problem if her attorney at the time had had the judge sign off on the agreement. (Another friendly tip...watch out for judges who have their judgment entries rubber stamped; it can cause your clients incredible anguish.) By neglecting to get that signature, Mrs. Long (a) had to spend money to go back to common pleas court and then go to appeals court, and will now have to go back to common pleas court to fight for a part of something she already thought she had; and (b) lost out on thirteen years' worth of benefits.
What do you think Mrs. Long will be saying about her 1989 attorney? His best hope may be that it's at a cocktail party and not in a malpractice suit.
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WMTtB Domestic Violence Resources
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A Girl Walks Into A Bar (exam)
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