Archives for 2007

The Wisdom of Staying Home during a Blizzard

Well, I’m kind of a “damn the torpedoes, full speed ahead” kind of guy. It’s hard for me to admit limitations. But I just finished a round of phone calls to my children and my Mother-in-Law (age 87, but acts like 57) cancelling tonight’s planned holiday family event.

We’ve had a tradition that some time during the holidays we all get together and head to downtown Minneapolis to go through the display formerly known as the Dayton’s display, now the Macy’s display. Upstairs in the old Dayton’s department store building, since time immemorial going back to at least the 1960s, there has been a wonderful, entertaining and sometimes inspiring display. This year the theme apparently is the Nutcracker.

Earlier in the day during the first round of phone conversations the consensus seemed to be: screw the weather, let’s go anyway. Since then the snow has gotten worse. Then my son reported that his car was covered with snow with ice underneath the snow. When he tried to clear it, he broke off a windshield wiper. After that I found out that one of my daughters is at her boyfriend’s place – which is in Eagan, further away from my place here in Minnetonka than I had figured.

So on with public TV’s version of the weather channel – which at my place is Channel 13. Quite a graphic depiction of the weather radar showed the weather pattern doing a circular thing where there was no sign of it passing by. Looks more like it intends to stick around quite a while.

The storm should be over by Christmas Day. At that time we’ll discuss maybe trying to go to Macy’s another day before the display ends; apparently it runs until New years‘ Eve. I’m disappointed, however, over not being the conquering hero who figured out how to do the event in the face of the nasty adverse conditions. In my business life I have often been that hero, pulling miracle rabbits out of my hat or out of various other places. But upon having given up on the idea of going out in this storm, I am feeling relief.

There’s a whole body of literature on the subject of how if one feels relief after making a decision, that’s a good sign that it was the right decision.

Merry Christmas and Happy Holidays to you all. If you have taken the time to read all this, let me suggest that you turn off the computer now and get face to face with either a family member or a friend. If you can’t get face to face, at least try making use of that quaint and ancient device – the telephone.

Crackdown in Hennepin County suburbs starting December 9th

Today’s Minnetonka Memo has a little item on the last page entitled “December traffic enforcement planned.” It says that during the week of December 9th the Minnetonka Police Department with the support of 19 surrounding law enforcement agencies will engage in a “major traffic enforcement detail” to reduce vehicle crashes through the removal of speeders and impaired drivers from the roadways.

Participating agencies include police departments from Bloomington, Brooklyn Park, Crystal, Deephaven, Eden Prairie, Edina, Golden Valley, Hopkins, Maple Grove, New Hope, Plymouth, St. Louis Park and Wayzata, as well as the Hennepin County Sheriff’s office.

Consider yourself warned and please be careful.

In Elk River Most of Today

I have court early this afternoon in Elk River. Given all this snow this morning, I’ll be leaving the office in a few minutes. I may be hard to get a hold of for most of the rest of this day.

Getting a Pardon from the Queen of England for a Minnesota DWI

Well, maybe not exactly the Queen; but at least the government of Canada.

I’m no expert in international law, and my license to practice law only extends to the borders of Minnesota. However, I keep hearing stories about people who have received DWIs in Minnesota and who then have trouble getting across the Canadian border. It seems to be especially difficult if one wants to bring a gun and go hunting.

Apparently a DWI which we classify as a misdemeanor is considered to be a felony in Canada. Canadian law will keep a person from being able to enter that country for at least five years from the date of the conviction. After the five years expires, a Minnesotan can apply for “criminal rehabilitation” through a detailed and difficult process that looks to me to be a lot like applying for a pardon. One basically has to prove that probation is over, all fines are paid, all sentences served, and there’s a good reason to believe it won’t ever happen again. Hiring a Canadian lawyer for help with this would probably be a good idea. I understand there are law offices in Winnipeg that do quite a business in this sort of thing.

For a $200 fee the folks at the border station can issue a temporary pass even though the DWI is on the record, but this is up to the border officer’s discretion. There’s no way to know until you get there whether or not you will be allowed to cross the border. Again, I have heard stories about the border agent saying that entering the country was OK, but not with a gun; and don’t plan on hunting or carrying a weapon while on the Canadian side of the border. This can be really bad news for someone who pays big bucks for a fancy hunting trip deep into the Canadian wilderness.

The fact that this problem is out there is yet another reason why nobody in this state should go anywhere near a courthouse without a lawyer. If there is a DWI charge, but it is reduced to Careless Driving, crossing the border isn’t a problem. It’s only if it’s a straight DWI and not reduced to a lesser charge that this problem might arise. So if you should happen to get a DWI in Minnesota, and you are a person who regularly travels to Canada for work or recreation, make sure your lawyer knows about that part of your life – and of course make sure you have a lawyer.

Bankruptcy "Abuse" Wasn’t There; Today’s Falling Stock Market

I am looking this afternoon at an October 15th article in the Duluth News Tribune. A bankruptcy lawyer I know has posted it on a local bankruptcy list serve to which I subscribe. The headline, “Bankruptcy filings are on the rise” is not really news to me. But one of the sub-headings in the article really caught my eye: “ABUSE WASN’T THERE”

The article rehashes how the credit and banking industry had lobbied for passage of the 2005 new legislation on the theory that a large number of people had been “abusing” the bankruptcy system. But then it takes a closer look at the filings under the new law, especially the ratio between Chapter 7s – which is where most of the abuse was supposed to have been happening – and Chapter 13s – which are preferred by the banking industry. They note that the ratio between 7s and 13s is the same now as it was in 1999. That ratio together with quotes from a credit counselor at Lutheran Social Services seems to support the proposition that the perceived “abuse” never actually existed.

In fact, judging by the whipping that some of the banks and credit card companies seem to be taking in the stock market today, it seems clear to me that a great deal of irresponsible behavior – abuse if you want to call it that – was engaged in by the bankers and lenders themselves. At the time of this writing, the Dow is down 192 points; and it’s been dropping for several days in a row. It is my hope that our economy can absorb the shock that is being expressed in today’s market, but I’m not at all sure that we won’t wind up in a recession. If it happens, I don’t think it will be the consumers who will be to blame.

Lawyer buddies and what’s "Of Counsel"?

There are three or four other lawyers with whom I consult more or less constantly. Actually maybe it’s five other lawyers. Two are guys I office with, and the others are people I speak with a lot, usually by phone. I’m reluctant to name them because I don’t want them held responsible in any way for anything that I’ve done; but there are days when I have been temped to ask one or two of them if they would mind if I listed them as “of counsel” on my letterhead and web site.

That “of counsel” designation is something you will run into now and then as you are reading about or looking up lawyers. The meaning as I understand it is a bit vague, but it usually refers to a lawyer who is not an associate or partner, but who is in the same building or general vicinity, and with whom one consults a lot.

My Black’s Law Dictionary defines the term as a lawyer “employed to assist in the preparation or management of a cause, or its presentation on appeal, but who is not the principal attorney of record …” The usage of the term in my experience is much broader and would include lawyers who are around – that is physically present or close by – and with whom one consults; but I wouldn’t expect them to be actually “employed,” since generally there is no money changing hands. Today I ask one of them a question about something, tomorrow one of them may ask me. It’s a fair exchange usually, but not a monetary one.

OK. I’ll admit it. Sometimes it’s not exactly a fair exchange. Sometimes I monopolize the time of my friends to the point that it’s unfair to them and an embarrassment to me. On the other hand, I have done a few things for some of them that could be considered beyond the call of duty; so I think or like to think that in the end it does balance out.

I don’t think I could ever practice law and operate out of an office entirely by myself. It would never work for me. I need other lawyers around; people with whom I can chew over, mull around, run up flagpoles, dispute and otherwise try out ideas.

Boo!

It’s a quiet day at my office. Lots of people are calling with questions, but nobody wants to actually come see me. Every other day this week, I have lots of appointments. There must be something about Halloween where people think it’s a bad day to see a lawyer.

I certainly know a few lawyers who I felt may have been vampires, and others who seemed at least borderline demonic. It might be also that lawyers as a profession are more nocturnal than those engaged in many lines of work. A few years ago the wags on KS95 were making a point of telling lawyer jokes around 6 am on the theory that the lawyers would not be up yet at that time, which for the most part I believe was true.

I just received a call from a gentleman in the State of Tennessee. He had a bankruptcy question, but I recommended that he find a lawyer from his own state to ask. Bankruptcy law is federal, but the application of it still varies widely from state to state. There are many questions of interpretation of the new law where the individual courts disagree widely. Asset exemptions are set by state law, and that can make a dramatic difference in the outcome concerning what a debtor may be allowed to keep.

Yesterday a gentleman called who had moved within the past two years from Texas to Wisconsin to Minnesota. He wants to file a bankruptcy here. There are provisions of the new law which are intended to discourage shopping for favorable exemptions by moving from state to state. Under those provisions, if this gentleman wanted to file here right now he would probably have to claim the exemptions provided for under Texas law. What a mess! I have never practiced law in Texas, but all of a sudden I may need to know something about their exemption laws. The last time that happened I made a point of consulting with a lawyer from the state in question. Every now and then I get a call from a lawyer in some other state with a similar question about Minnesota exemption laws.

This has been quite a ramble, if you have managed to keep reading to this point. All I meant to say was HAPPY HALLOWEEN.!

Change of Internet Servers in Progress Now

I hope nobody is having trouble getting email through to me today, or having trouble finding my web sites. For the next 24 hours or so there will be new settings propagating across the Internet which will be redirecting traffic for all my stuff to a new server. While this goes on, I might be missing some of your email; and it might appear that one of my sites, or some part of my sites, are down or among the missing.

Having this goes on drives me nuts, and I hope the transfer is completed soon and smoothly. Meanwhile, all I can say is that I apologize for any inconvenience.

While the transition is taking place, please use the following alternative email address to reach me: kellylawoffice@mail.popp.net.

What I tried to explain last night.

Early this morning at about 1:00 am I received a call from a gentleman who had been arrested for DWI. He was not stopped because he was driving poorly, but only because of an equipment violation. One legal right in Minnesota when arrested for DWI is the right to speak with a lawyer by phone, prior to making a decision as to whether to take the breath test.

I explained to this gentleman that one choice was to refuse the test, but this is now a crime, a gross misdemeanor, and would result in a six month suspension of his driver’s license. Thus I advised against refusing the test. So after speaking with me for as long as the police would allow (about 20 minutes), my advice was to take a breath test.

He was surprised that he was being asked to take a breath test, because he had already taken the preliminary breath test that the officers give by the side of the road. In most cases that preliminary test is a screening device only, and cannot be used in court. There’s another test they offer at the police station on a larger machine called the Intoxilizer 5000. The result from that machine is the one that counts and that can be used in court.

I also suggested that if he failed the test on the Intoxilzer 5000, then he should ask the police to let him make a call to arrange an additional blood test. At my First Arrest First Aid page, there is a phone number for an outfit called Additional Testing, Inc. They dispatch medical professionals who will draw a blood sample and bring it back to their lab for testing. There are some experts who claim that the Intoxilizer 5000 has an error rate of plus or minus .02%. This makes it rather important to not have the additional test until one knows for sure that one has failed the breath test, since the breath test is just as likely to be reading low as it is to be reading high. You wouldn’t want the blood test to come in higher than the breath test. Or at least it should not be risked unless you are sure that you have come in above the legal limit on the breath test.

By the time I got through my attempt to explain all these things, the police were insisting that the gentleman get off the phone and take the test. Since then, I have not heard how it came out, and perhaps I never will. My hope is that he came in below the .08% legal limit, that he was released without being charged, and that he therefore has no need for my services.

Would Somebody Please Educate These Kids?

I will admit to finding myself a bit agitated after receiving and answering the following question on Law Guru:

“Subject: how long is a minor on your record?
Body:
i got a minor consumption over 3 years ago is it still on my record?”

My answer is long, but to summarize it’s “probably forever.” I have received similar questions repeatedly, in my office, on the phone and on line. There seems to be a BIG FANTASY among our younger people that criminal offenses will just go away after a period of time. If it’s a non-driving offense for a person who is under 18, that could be true. Otherwise, every criminal violation a person has tends to follow them their entire life.

So if this person was over 18, which I consider very likely, it will still probably be there when he or she is 81. I just don’t get why I have to keep explaining this over and over, and it is almost always some kind of big surprise.

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