All posts by Chris Buckley

Indiana Conservative Camps Make Strange Bedfellows

I have obviously been thinking a lot about the recent Indiana Supreme Court Decisions, and they bother me a great deal to say the least. I think this guy has the right idea, but is probably overstating the more thoughtful position.

I definitely abhor the recent shots at liberty over the past couple of weeks (by three (3) of the (5) “elected” Indiana Supreme Court justices) but I would stop short of saying that police are now going to use the precedents to be dramatically more ravenous than before. First, I’m not sure that the average Hoosier is even aware or understands the Court’s action. Second, I’m not sure that the police officers do, either. What practical effect these decisions may have is irrelevant, however, when the principle goes too far to erode the Fourth Amendment (as well as Indiana Constitution Article 1, Section 11).

Politically, these decisions draw an interesting line. Namely, a line between those who call themselves “conservatives”. Indiana is a highly “conservative” state, whatever that means. Within that vague, broad umbrella, however, are those who are pro-law enforcement and crime-tough, and those who are jealous protectors of the rights our Forefathers fought and bled for . There is no question whether these are mutually exclusive positions in my mind; it is impossible to both jealously protect rights and prevent every possible foreseeable harm to the public. The two are directly in tension with one another.

Labels aren’t really all that important to me, but for the sake of convenience I would call the former category “neo conservatives” and the latter category “constitutionalists”. I would say that a majority of “conservatives” in this State are apparently in the “neo” camp. If not, at least a majority of the Indiana Supreme Court justices are…

The “Tea Party Movement”, on the other hand, is highly opposed to tyranny by the government, whether that means using the laws (and judicial precedent) to rule the lives of individual citizens by eroding their libert(ies), or through excessive taxation. This is one issue that I strongly agree with the Tea Party. No matter the practical effect of the issue, we cannot take steps–albeit even baby steps–away from the unadulterated, inalienable rights our Fathers endured great hardship to establish. To take such steps, no matter how gradual, creates a slippery slope that undermines the very reason our Fathers came here in the first place–individual liberties. John Stuart Mill wrote volumes on what liberty means, and how the state is best to determine where one’s liberty ends and another’s begins. Admittedly, this is a very delicate balance; but the public’s interest in potentially preventing some harm (presumably, but not demonstrably, by excessive, unwarranted searches) is far outweighed by the sanctity and sacredness of one’s castle.

Police officers SHOULD have to think twice before entering someone’s dwelling, even if that second thought is the officer’s own safety and well being. The act of searching a citizen’s dwelling is an undertaking our Fathers scrutinized heavily against–in fact, to the point they would have preferred death. Whether the officer’s safety is in jeopardy begs the question of whether he should enter the dwelling in the first place. No warrant, no dire emergency, no consent = no search.

I wish we had more brave souls willing and able to flood the newspapers with letters to the editor like this.

Porter County Magistrate James Johnson Retires from Bench

This morning in the Northwest Indiana Times as well as the Post-Tribune, it was announced that Magistrate James Johnson, after more than twenty (20) years of service to Porter County, will retire effective August 1, 2011. (See Northwest Indiana Times article, “Porter County Magistrate Resigns Amid Case Backlog”, and Post-Tribune Article, “Porter County Magistrate Stepping Down”).

According to the articles, the Magistrate’s health and age are the main factors underlying his decision to step down. Johnson has been under significant pressure to resolve the considerable backlog of cases in his court, as one (1) of two (2) full-time magistrates handling all probate and adult family cases in Porter County. The Magistrate will cease taking on new cases as of this Friday, May 27, 2011, and will begin retirement August 1.

I am one of many attorneys who will miss Magistrate Johnson on the bench. In my short experience representing clients in his courtroom, I will say that the Magistrate was always respectful, even-handed, mild-mannered, and extremely fair. His respect for litigants–and especially for veterans–earned him my personal respect. I always looked forward to appearing before him, because I knew that a fair outcome would inevitably result. I appreciate Magistrate Johnson’s service in the military and as a Porter County Magistrate, and I hope that his replacement will be as courteous and patient as he was in dealing with cases that aren’t always the most desirable.

I hope the Magistrate will still attend our monthly Inns of Court meetings and make himself available in the community. I look forward to continuing to learn from his many years of experience.

Police: “Rest Assured, Rulings Will Have No Effect”

In an EzlerLaw Blog Entry last week, “Indiana Supreme Court Errs Heavily in Favor of Law Enforcement This Week in a Pair of Surprising Decisions”, I wrote about the controversial decisions the Indiana Supreme Court reached early last week. In response to these decisions, two (2) editorials were written by the Northwest Indiana Times and Post-Tribune, respectively entitled, “Controversial Court Ruling Produces More Questions than Answers,” 21 May 2011 and, “Police Downplay Impact of Court Ruling on Home Entry,” 23 May 2011.

I suppose if the La Porte County Sherriff doesn’t remember ever entering a dwelling illegally in his long career, the controversy should end there. As we all know, police officers always exercise the best judgment on whether to enter a residence.

In reality, there are three (3) and only three (3) reasons an officer may enter a dwelling: 1) warrant, 2) consent, and 3) exigent circumstances.

I listed these three (3) justifications in the order I did because they are in the order of legal standing. When an officer has a search or arrest warrant, the premises may be searched. A warrant is constitutionally only issued upon probable cause presented to an officer of the court. Assuming this was done correctly, an arrest or search warrant is the least controversial way an officer can gain entry to your home.

The second means by which an officer can legally gain entry to your home is by consent. This is more controversial than the warrant, because the standard of proof for consent is subjective. In other words, it is within the officer’s discretion whether you consented to the entry. As well, officers are known for coaxing or coercing consent to enter and search residences. (If you need support for this, just watch the TV show, “COPS” for 10 minutes and you’ll see what I’m referring to.)

The third and questionably the most controversial way for police to gain entry to your home is by exigent circumstances. Again, this prong relies heavily upon the discretion of the police officer in determining just what qualifies as an “exigent circumstance”. The legal standard is supposed to be if the police believe that there is a substantial threat of death or serious bodily injury to someone within the structure, they may enter to prevent the threatened harm. But here’s the catch: even if no exigent circumstances are discovered at the conclusion of the entry (and let’s be honest, in most cases a subsequent search for contraband), as long as the officers had a “reasonable belief” that exigent circumstances existed at the time of the entry, the entry is justified (as well as any evidence recovered along the way).

I went to this length to explain exactly what these recent decisions do. So, even where none of these fairly ambiguous and arbitrary justifications cannot be met, police–and not the citizens–have the discretion to determine whether entry upon someone’s residence is legal or illegal. THIS is the reason that people are outraged at the decision; it places the final determination whether to enter a persons dwelling–something that our Forefathers believed was sacred and deserved the highest and greatest protection–in the hands of the officers.

Now I agree with the editorials here that we do need to safeguard officers’ safety. Of course we do. They are our first responders and our first line of defense. I have the utmost of respect for police officers and what they do; but they are not lawyers, and they are not judges. We should not place within their discretion decisions that civilian professionals should make.

The real danger is the entry in the first place. If police don’t enter, violence, by definition, cannot occur. If we turn down the notch of zealousness of our police officers just a notch, perhaps officer safety would be less of an issue. What safety does maximizing the number of residential entries promote?

The articles also explain that the defendant’s sole remedy lies in the civil justice system. Obviously, those featured in the article, as well as our Indiana Supreme Court justices, have never filed a civil action against a municipality. There are many, many challenges and obstacles that make this remedy available in very few of all cases where illegal entry has been made. First, there is no possibility of success without first retaining an attorney; more practically, a seasoned attorney with many years of experience in civil rights litigation. This is not cheap, by any stretch of the imagination. Next, you have to give Tort Claims Notice. This is a formal requirement that even many seasoned lawyers screw up. You have to give notice to every “affected agency” and within very stringent timelines. If you fail to do so, you have forever lost your opportunity to pursue a legal remedy. If you succeed, there are a whole litany of steps that you must take–to exceed what must be done in a “normal” lawsuit–in order to prevail against a municipality or government. If you pass this phase, you must prove you were damaged by the illegal entry and be able to demonstrate such damages. This may sound simple, but here is an example: if an officer illegally comes into your home and sees, for instance, your wife’s lingerie laying on the couch, were you damaged? How much? Can you prove it? Do you see the problem here!?

As far as getting any evidence recovered as a result of an illegal entry, it’s a crap shoot. Most of the time the court will get it right. That is, that when illegal searches are made, the evidence obtained from the search is suppressed. But at this point, the defendant has spent countless hours and dollars fighting the state’s action in suppressing evidence the state should not have obtained in the first place. Is a dismissal of a criminal action against you really a remedy at all? Does it make you whole from the illegal search? Not hardly, in my opinion. And, that’s not to say, what if the court gets it wrong and admits evidence obtained illegally against you!? It happens…

Lastly, do you think the average citizen will behave differently in light of an Indiana Supreme Court decision. Will it make any difference to the average Hoosier whether the common law doctrine of a right to reasonably resist an illegal search is overturned? Some lawyers aren’t even paying attention to these decisions. Will this decision prevent citizens from battering police officers trying to obtain illegal entry into their homes simply because the Supreme Court wrote an eleven page legal opinion? Again, not hardly.

When the Attorney General–the advocate whose job it is to prosecute and uphold the conviction–says that the court went too far, it should be an indication that the Court is far overstepping its constitutional bounds. Hopefully, the Court comes to its senses on rehearing. If not, the Federal courts will get a shot at getting it right.

Indiana Supreme Court Errs Heavily in Favor of Law Enforcement this Week in a Pair of Surprising Decisions

In two surprising legal opinions, Cornelius Tyrone Lacey, Sr. v. State of Indiana and Richard L. Barnes v. State of Indiana, the Indiana Supreme Court is arguably whittling down your rights against search and seizure. See Northwest Indiana Times Article, “Court: Police Serving Warrant May Enter Without Knocking if Circumstances Justify It”, 10 May 2011; Northwest Indiana Times Article, “Court: No Right to Resist Illegal Cop Entry into Home” 12 May 2011.

The Fourth Amendment of the U.S. Constitution as well as Article I, Section 11 of the Indiana Constitution protect citizens from unreasonable searches and seizures. The identical respective provisions read as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. ” U.S. Const. 4th Amend. (1792); Ind. Const. Art. I Sec. 11.

In the first case, Cornelius Tyrone Lacey, Sr. v. State of Indiana, Lacey challenged the trial court’s denial of his motion to suppress evidence obtained from the execution of a search warrant by police forcing their way into his residence without first knocking and announcing their presence, which was the law up until this precedent. According to the Court, the Indiana Constitution does not require prior judicial authorization for the execution of a warrant without knocking and announcing when justified by exigent circumstances known by police when the warrant was obtained.

In the second case, Richard L. Barnes v. State of Indiana, the Court overturned the longstanding common law right to reasonably resist unlawful entry by police officers, citing public policy concerns as the compelling reason for doing so. In other words, the Court is saying here that practicality requires that we soften our rights against search and seizure. The Court is also saying that a citizen’s sole remedy against unreasonable searches–a backward looking remedy–is in the civil justice system, as well as through the courts to suppress such evidence. In the case at bar here, the issue before the Court was whether “reasonable resistance” can be used as a defense to battery upon a police officer. The answer to this question is an obvious, clear, and resounding NO. In this case, physical evidence was not recovered from the apartment in order to convict Barnes. Such evidence should, theoretically, have been excluded in a suppression hearing if it were illegally obtained, but there is no absolute guarantee.

What the Court appears to be saying here is, “self-help” is not available to enforce one’s Fourth Amendment and Article I, Section 11 rights, but rather, one must move to suppress the evidence and/or file a civil suit to protect those rights if they are violated; after the fact, that is.

Have your civil rights been violated? Do you need a lawyer to represent you in a criminal matter? Contact SFT Lawyers by calling (219) 841-5683 TODAY to get the representation that you need and deserve.

Bipartisan Smoking Ban Defeated 8-1 by Committee in Indiana House

After a very short lifespan and amidst all of the buzz on both sides of the issue, the statewide smoking ban banning smoking in all public places except bars, casinos, private clubs, tobacco shops and nursing homes–is now dead in the Indiana House; that is, at least for now. See Northwest Indiana Times article,“Senate Leader Declares Smoking Ban Dead for Year” 18 Apr. 2011.

The Article suggests that this may be due to the American Cancer Society taking an absolutist position of no compromise, opposing any and all exceptions to the Bill. The influence wielded by the American Cancer Society is considerable in Indianapolis, indeed, but perhaps 1) the issue is not quite ripe enough for review, 2) it may not be as popular as proponents claim, and 3) the American Cancer Society should perhaps approach its agenda by making baby steps rather than no progress at all.

Lobbyists should all take heed to this lesson: sometimes a “win” consists of many field goals instead of a single touchdown.

Either way, it seems that Hoosiers are pumped up on both sides of the issue. Opponents of the measure insist that smoking is a liberty that should inherently be free from government intrusion and regulation. They believe that if the will of the people is strong enough, pure economics will encourage businesses to adopt policies that will maximize profits. After all, tobacco is older than the Republic itself, and had a huge role in the foundation of our economy. Our young Nation may not have made it through its infancy without this key cash crop, or it may have looked much different today, at any rate.

Eighteenth Century history, however, isn’t a very good argument for defeating the health concerns and liberties of those who wish not to smoke, and wish to be free from tobacco smoke in public places. As a nonsmoker, I see both sides of the issue. Both sides have arguments definitely worth merit. Perhaps this is why the Indiana General Assembly is having such a difficult time with it.

The City of Valparaiso is ahead of–or behind–the power curve, depending how you look at it. Here in Valpo, smoking is banned in all public places except for bars who do not admit persons under the age of twenty one (21).

Underage Drinking in Porter County – A ‘Crime’?

This may sound like common sense, but I would like to take a moment to write an article for our younger readers on a topic that is near and dear to their hearts–alcohol.

Obviously, I am writing this even though my practice benefits from the (zealous) enforcement of this statute. Despite the fact that I stand to gain a significant profit here, I have a strong opinion to the contrary.

I will stick to the key demographic of 18-21, since this is the age group with the greatest concentration. I can go on and on about the arguments in favor of letting these young people be. I can start with the anomaly that they are old enough to serve in the military and die for their country, but not old enough to decide whether to consume alcohol. They are also old enough to drive cars and assume all (potentially deadly) responsibilities therewith, but not old enough to consume alcohol. They are old enough to be tried as adults in the criminal justice system, but not old enough to be considered adults when it comes to the choice as to whether to consume alcohol. So we pass a statute making it illegal for persons under the age of twenty one (21) years to possess or consume alcohol, because the Bible–or some other abstract authority–has told them so.

I mean, really, these kids (assuming they were busted at a party) are being comparatively responsible. These kids could be driving around in vehicles while intoxicated, putting property and other people’s lives at risk. Aren’t they doing the right thing by staying at a party? Wouldn’t you want your child at a party versus cruising the streets while intoxicated?

What normally happens in these circumstances is that the kid(s) end up with an alcohol awareness or treatment, and a day or two of community service–that is–if they hire an attorney to represent them. If they don’t, the criminal charge will likely end up on their permanent record, and the subject of every background search by every employer, for every job they apply for for their entire lives. Is this really necessary?

This is not to mention the fact that their parents have paid fees and costs and possibly the cost of hiring legal counsel, for something that seemingly all teens and early twenty-somethings engage in. Maybe if it wasn’t illegal, it would lose some of its appeal in being taboo, and the kids would act relatively more responsible–like their European counterparts. Who knows.

When it comes down to it, this statutory violation is on the books because police officers want discretion in breaking up these potentially riotous parties. If it weren’t illegal for a 20 year, 11 month old to drink, the police would be left powerless, and may have to make repeated trips to a house or apartment simply to ask partygoers to turn the music down. That would be no fun, and besides, the state would miss out on a major opportunity to collect revenue; let’s be honest.

So young adults between 18 and 21: I cannot advise you on how to break the law, and I don’t encourage you to do so. I would strongly encourage you to wait until age 21 to consume or possess alcohol. But, you do have rights, and it is important that you protect them. Here are a few pointers to make sure that your rights are not violated:

1. Keep the music down.

2. Don’t invite too many people to any single party.

3. If the police are called, designate a representative to speak with them.

4. Immediately turn the music down or off, and quiet all party guests.

5. The designated person should always step outside the apartment or house to speak with the police.

6. The designated person should always securely close the door behind him/her when he or she steps out to speak with the authorities.

7. The designated person should be aware that police officers do not have a right to inspect the apartment or residence.

8. The designated person should be aware that police officers will persistently attempt to enter or search the apartment or residence, often using a combination of intimidation or persuasion to get inside–but again–they have no legal right to do so.

9. The designated person should be aware that he or she has the right to refuse any and all searches of the residence or apartment.

10. Always be courteous and polite to law enforcement, and follow all instructions.

Well, I sincerely hope that, first of all, persons under the age of 21 have the discipline not to drink until they are they appropriate and legal age. I also hope that this information guides you and preserves your legal rights. If you do, however, find yourself in a legal situation resulting from the underage consumption of alcohol, the Porter County attorneys at SFT Lawyers can help.

LEGISLATIVE WATCH – Indiana Township Government

In the short span of two weeks, hope of reform for Indiana’s system of township government has gone from brightly optimistic to likely dead. Post Tribune, “Trustee Makes Plea for Township Government,” 8 Feb 2011, and Northwest Indiana Times, “Legislation to Abolish Township Boards Appears Dead at Capitol,” 28 Feb 2011.

More than a dozen bills were introduced this session to accomplish the same task, but it appears none will make it out of the Indiana House. Thanks to the walk-out by the Indiana House Democrats over a litany of bills the caucus disagreed with at the end of the session, any hope of reforming township government may not see the light of day–that is–unless Governor Mitch Daniels utilizes his constitutional authority to hold the session open. If the session is allowed to close, bills introduced to reform township government will end up on this lengthy list of POW’s captured by the Democrats.

Although it may be futile at this point, here is a summary of the bills that have been introduced addressing township government reform in the current session:

SB0380 – To continue operating as a unit of government after 2015, a township must contain at least one (1) high school building of a school corporation, all or part of at least one (1) municipality, and at least one (1) fire station. Townships not meeting minimum requirements shall be merged into other townships within the county until minimum requirements are met. Introduced by Sen. Jim Buck-R, Hamilton Co. 1st Reading, referred to Committee on Local Government.

SB0405 – Provides that county fiscal and legislative body will serve in place of township boards. Sets “excessive” levies and maximum revenue in certain township funds. Makes public any and all expenditures by township personnel, including trustee. Introduced by Sen. Connie Lawson-R, Hendricks Co.; Sen. Doug Eckerty-R, Delaware, Madison.

SB0386 – Requires a fiscal impact analysis to be submitted to Department of Local Government Finance (DLGF) before a public question. Requires referendum for abolishment of township government. Township trustees may retain some authority under enabling ordinances passed by the county legislative body. Introduced by Sen. Brent Waltz-R, Marion, Johnson; Sen. Connie Lawson-R, Hendricks, Putnam. PASSED Senate 2/22/11, Referred to House, Sponsored by Woody Burton-R, Johnson; Dave Frizzell-R, Johnson, Marion.

HB1434 – Township containing one (1) or more municipalities in 2013 will govern only unincorporated areas of the respective township. Trustee continues as executive body over unincorporated area(s). Offices of individual township assessors abolished. Townships containing two (2) or more municipalities will be governed by fiscal bodies and executives of the municipalities, including unincorporated areas. Introduced by Rep. Davis-R, Jay, Randolph, Delaware. 1st Reading, referred to Committee on Government and Regulatory Reform.

SB0385 – Townships and municipalities may voluntarily reorganize if all legislative bodies of respective municipalities and the township act by a two-thirds (2/3) majority before mandatory reorganization occurs and where seventy percent (70%) of the township population resides in the municipality without a referendum. Terms of the reorganization are controlled by the Plan of Reorganization between the township and municipalit(ies). Authored by Sen. Ed Charbonneau, Porter. PASSED Senate 2/22/11. Referred to House, sponsored by Rep. Ed Soliday-R, Porter; Rep. Chet Dobis-D, Lake; Rep. Tom Dermody-R, LaPorte.

HB1469 – All legislative and fiscal authority transferred to county fiscal and legislative body. Trustee and township assessor, if applicable, shall be determined by a referendum November 2012. Authored by Rep. Jerry Torr-R, Carmel; Rep. Hinkle-R, Marion. 1st Reading, referred to Committee on Government Regulatory Reform.

HB1534 – All legislative and fiscal functions to be performed by the county legislative and fiscal bodies. All township employees have automatically resigned where they have run for political office in any political subdivision. Provides for the establishment of a board of trustees at the county level, consisting of elected township trustees. Introduced by Rep. Foley-R, Martinsville. 1st Reading, referred to Committee on Government and Regulatory Reform.

HB1526 – Townships may voluntarily change, alter, or transfer duties and responsibilities by referendum. Introduced by Rep. Dan Stevenson-D, Lake. 1st Reading, referred to Committee on Government and Regulatory Reform.

HB1376 – Abolishes township boards, effective January 1, 2012. Township boards may be retained by referendum November 2012. Introduced by Rep. Hinkle-R, Marion. 1st Reading, referred to Committee on Government and Regulatory Reform.

HB1395 – Limits township government in townships that include municipalities having greater than ten thousand (10,000) in population to unincorporated areas only. Authored by Tim Wesco-R, St. Joseph, Elkhart. DEFEATED.

The two (2) bills worth note here are the bills that passed the Indiana Senate, namely SB0385 and SB0386, the weaker of the above-listed proposals. SB0385 allows for the voluntary reorganization of townships, and SB0386 allows for abolishment of township government by referendum. Neither are legislative enactments to force township government into consolidation with county or municipal government or to abolish township government altogether. It will be interesting to note whether–or how long–Governor Mitch Daniels keeps the legislature in Indianapolis to vote on these and other important pending legislative matters.

I will keep you informed of progress. Stay tuned…

Judicial Committee Recommends Major Overhaul for Indiana Trial Courts

The Indiana Judicial Conference has made a recommendation to make major changes to Indiana’s existing trial court system. Post-Tribune, 29 November 2010, “Courts Likely to Help Each Other with Civil Caseloads”

According to the article, The Indiana Judicial Conference has proposed a new system whereby superior, circuit, and town courts would not function on a county-by-county basis, but on a district system, to allow judges to more evenly distribute caseloads among the 92 counties. For instance, the judges in more rural areas who have lower caseloads would have cases from overburdened courts, and/or travel to the respective counties where the suits originated. This change would create little to no extra cost, while increasing efficiency and productivity.

The system would have to be formally approved by the Indiana Supreme Court, and then proceed to the floor of the Indiana General Assembly. Is this truly as efficient as lawmakers such as Shewmaker claim?

Major Victory for Gun Lovers: Supreme Court Weighs in on Second Amendment Issue

In a bold and unexpected move this morning, the United States Supreme Court issued an opinion today incorporating the Second Amendment Right to Bear Arms into those Rights which are applied to the states. What this means for the City of Chicago is that its attempt to ban handguns is now invalid. (For detailed background, see NWI Lawyer article, “UPDATE: Supreme Court Hears Oral Arguments on Chicago Gun Ban” “U.S. Supreme Court to Hear Second Amendment Oral Arguments Tomorrow: Fate for Chicago Gun Law Uncertain”) (READ THE FULL TEXT OF THE OPINION HERE)

In order to decide whether the Fourteenth Amendment’s Due Process Clause applies the Second Amendment Right to Bear Arms to the States, the Court had to consider whether the right to keep and bear arms is “fundamental to our scheme of ordered liberty.” In support of its conclusion that the Right to Bear Arms IS incorporated into the Bill of Rights, and therefore, that it SHOULD apply to the states, the Court reasoned, inter alia:

Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and…self-defense is “the central component” of the Second Amendment right.

“[T]he need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family…”

[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.

In conclusion, the Court reversed the decision of the Seventh Circuit Court of Appeals stating that Chicago’s gun ban did not violate the Constitution and struck down the law. It also remanded the case back down to the trial court to decide the issues based on the new interpretation. One thing is clear: cities cannot outright ban handguns. What is less clear is what they are able to do around the margins. Thoughts, Northwest Indiana?

Five Reasons You Should Consider Hiring a Young Lawyer

Business development in the legal profession is about one word: TRUST. Potential clients believe that when looking for representation, a lawyer can never have too much experience. Lately I have run into this misconception head-on, and I find it very troubling. The most challenging task for me as a young lawyer is to gain the trust of potential clients with their legal pursuits. While I cannot undervalue the benefits of hiring an experienced professional for very large, specialized, or overly-complex legal issues that take decades to master, I would like the reader to consider some less obvious advantages of hiring a younger lawyer to fulfill your day-to-day legal needs.

While hiring a young lawyer to represent you may have its disadvantages, you should consider these five attributes of a young lawyer before making a decision about who you want to represent you or your business.

1. Cost. Obviously, a young lawyer will not bill you at the rate he would with twenty years of experience. As well, a young lawyer is less likely to have minimums–such as billing you 1/4 hour for a 3-minute phone conversation. Recently, I have had opposing counsel whose rate is nearly twice the rate I bill my clients–and with no greater outcome than I achieved for my client. Just like finding a great $10 bottle of wine, you don’t always get what you pay for; don’t always assume that you are getting a better lawyer because you are paying more. In an economy where demand approaches marginal cost, shrinking profit margins require consumers and small business owners alike to look over their business and personal budgets, line by line. Cutting legal costs can significantly reduce overhead and make your product more competitive in a time when you need it most.

2. Communication. A young lawyer has the time to devote to you or your business–the personalized, one-on-one attention that you deserve. A more seasoned lawyer is often overwhelmed with a portfolio of clients he or she has built over his/her career. Often times, what suffers is client communication. Have you ever had a lawyer who could take up to two weeks to return your phone call or email? While there are always exceptions, hiring a younger lawyer usually reduces response time. At this point in my career, I am generally able to return communications within 24 hours; in my experience contacting other lawyers, 24 hours is the absolute earliest you could expect to hear back. For most clients, this makes the difference between a lawyer they hire once, or a lawyer who they retain for their legal needs over the course of a lifetime.

3. Availability. As mentioned above, a younger lawyer generally has fewer clients. For you, this means that he or she can dedicate more time to solving your legal problem, and has fewer distractions from other clients. A good example comes from criminal law. A successful, seasoned criminal defense lawyer often has his or her own entire court call–an entire morning or afternoon spread over a vast list of his or her criminal defendants. As well, in his or her plea meeting with the prosecutor, he or she is not discussing individual plea agreements–he or she is more likely discussing them by the batch. Because of this, it is more challenging to remember the details of each and every case, and is less likely to treat each case with the devoted attention it should receive.

4. Aggressiveness. A young lawyer is looking to make a name for him/herself. He or she is not connected to the existing “good ‘ol boys” network, and many older lawyers often have animosity toward new members of their profession. While all lawyers should be professional, amicable, and civil at all times, a young lawyer is less likely to compromise because of an existing relationship with the other side. A younger lawyer is generally more connected to each cause he or she advocates, because he or she has not been desensitized by the high volume of cases of a seasoned lawyer. Because of this, a younger lawyer is more likely to zealously advocate on your behalf.

5. Innovation. A young lawyer will often surprise you with his or her expertise and the creative ability to find new solutions to old problems. As well, he or she is closer to his or her legal education. This allows young lawyers to “think outside the box” and draw upon a greater legal imagination when looking to support your position. For example, recently I represented a homeowner defending against a claim by his home improvement contractor. While most of general contract law provides a recovery when there was no written contract between the parties, the Indiana Legislature passed a statute in 2005 placing the burden on contractors to produce such a writing in order to recover, even where the work has been performed. Because I came across this recently in my pursuit of the Bar Exam, I was vaguely familiar with the statute, and began here in solving my client’s problem. Of course this does not guarantee any particular outcome, but my client would not have had a single argument to rely upon had I not had the intuition in my recent memory. Hiring a fresh set of eyes may result in new and innovative arguments that in some cases could lead to a more favorable outcome.

All this being said, just like shopping for a bottle of wine, each winery and vintage has its own distinct qualities and value. Just because a wine is younger, older, more expensive, less expensive, or from a particular region, does not necessarily predict your satisfaction when the final glass is poured from the bottle. Each lawyer has his or her distinct personality and style, and each has his or her strengths and weaknesses. I do not intend here to undermine the value of hiring an experienced lawyer; experience should be a significant factor in shopping for legal representation. But–it should not be the determining factor alone. I encourage potential clients to make a well-informed decision when hiring a lawyer–and to evaluate each candidate on his or her individual merit.