Getting Out of Prison: Ineffectiveness of Counsel Claims by Attorney David Grossack

Perhaps because the United States has more laws than any other country, it has a higher ratio of people in jail than any other nation.

Rather than an impartially-run, fair, level playing field, too often, criminal prosecutions are an assembly line. Judges and prosecutors frequently work together to make sure that criminal defense counsel is hamstrung, jurors are deceived, and helpful evidence kept out, while prejudicial testimony and outright perjury is accepted.

Where are the defense lawyers when this is going on?

All too often, they are unprepared, disorganized and not thinking clearly, and that can lead to a deprivation of a defendant’s rights.

In the author’s estimate, there are at least a hundred thousand people in jail (whether innocent, guilty or somewhere in-between) who are needlessly imprisoned because their lawyers were lazy, incompetent, or even intimidated by the government, and did not perform adequately.

The legal system describes the situation as “ineffective assistance of counsel,” and it is valid grounds for appeal.

To prevail on a claim of ineffectiveness of counsel, an appellant must show: (1) that the defense counsel’s performance was deficient, and (2) that the petitioner was prejudiced by the deficient performance.

Just what is it that lawyers do wrong?

Sadly, the list is endless.

The defense counsel must object (or move to strike) when an hostile witness says something that is speculative, irrelevant, has no basis in fact, or can be prejudicial more than probative (i.e. proving anything of substance).

Failure to make these objections is ineffective representation.

Defense counsel also has a duty to investigate in an attempt to locate evidence favorable to the defendant. If the defendant is in a financially difficult situation, a defense lawyer can petition the court for funds to hire a private investigator.

Even when a defendant has located helpful witnesses, the author knows of cases where lawyers don’t even bother to call them to the stand, causing great hardship to their clients.

Expert witnesses, state-of-the-art scene reconstruction, challenges to forensic evidence (even challenges to fingerprints) are now available more than ever before, and the burden is on defense lawyers to know what resources are out there to challenge prejudicial evidence.

There is case after case of wrongful convictions, and of lives wasted because lying policemen and shaky evidence went unchallenged.

Inadequate cross-examination, poor witness preparation, faulty legal research, failure to file necessary motions to exclude prejudicial testimony and so forth all make a difference and lead to disastrous results.

In one incredible case, an attorney fell asleep during the prosecutor’s cross-examination (Muniz v. Smith 647 F. 3d 619 (6th Cir. 2011). Another one appeared heavily intoxicated throughout the trial (People v. Garrison, 47 Cal. 3d 746 (1989). One was in very poor health or senile, Bellamy v. Cogdell, 974 F. 2d 302 (2d Cir. 1992). Perhaps an extreme case is an attorney who was a convicted felon, whose sentence included community service in the form of defending accused murderers, State v. Wille, 595 So. 2d 1149 (La. 1992). What’s more shocking is that even if a new trial occurs, in some of these cases, the courts still uphold the criminal convictions because “ineffective assistance of counsel” has not been properly proven.

You may have a case for ineffective assistance of counsel if your lawyer repeatedly files notices late, fails to show up for hearings, does not read or respond to correspondence, or fails to raise objections. But beware that you must prove that the unfair outcome of the trial was specifically due to the counsel’s ineffectiveness.

Nevertheless, proving “ineffective assistance of counsel” is often difficult. For example, in Moran v. Burbine 475 US 412 (1986), the respondent, after being apprehended by the police, confessed to murder and waived his right to counsel. Unbenknowst to him, a relative obtained him counsel, but the police ultimately failed to inform the accused or facilitate attorney/client communication. The court stated that the rights guaranteed by the Fifth and Sixth Amendments had not been violated in this case.

However, in Geders v. United States, U. S. 80 (1976), a petitioner was prevented from speaking to his counsel during the 17-hour overnight recess in the trial between his direct and cross-examination. In this case, the court ruled that the petitioner’s Sixth Amendment rights were indeed violated, because he has a right to have access to a lawyer.

The Sixth Amendment, which guarantees the right to counsel, guarantees the right to effective counsel. Like the rest of the Bill of Rights, the Sixth Amendment, as interpreted by our nation’s courts, is still evolving.

If you (or somebody you care about) is trapped in prison, reviewing defense counsel’s performance must be among your top priorities.

Attorney David Grossack is in private practice in Newton, Massachusetts. His phone number is 617-965-9300. Email: dgrossack@gmail.com.

Suing the Insurance Company by Attorney David Grossack

It is no secret that in every major city across this country the biggest buildings are invariably owned by an insurance company.

Nor is it any secret why they can afford these buildings. They operate what are essentially huge, sophisticated betting pools, taking your wager (which is essentially what a “premium” is) and hoping you’ll never be involved in a claim that they’ll be have to pay.

If they file a claim, they have an elaborate system for trying to welch on the bet, if they can get away with it, or paying as little as possible. Sometimes their conduct is illegal. “Adjusters” who work for insurers operate like detectives. 

First, they will determine if the incident is covered under the policy. This is not always clear. Sit down and read a business insurance policy sometime. I’ve always been proud of the “A+” I received in contract law, but some insurance policies will almost require a code-breaking machine. That is, of course, a deliberate strategy of creating ambiguity in the event of a dispute.

Occasionally, coverage responsibility gets litigated in court. 

In any event, the adjusters are usually extremely thorough when they decide to deny a claim. They keep an elaborate database, shared among all insurers, of the claims histories of tens of millions of Americans and often discriminate against people based on their claims history. They expect that juries don’t like people who make a lot of claims.

Insurance companies also unquestionably discriminate against immigrants. Our office successfully recovered a settlement on behalf of a Nigerian man whose policy was cancelled after an accident simply because he had other Nigerian friends who the company claimed were likely to commit a fraud.

If you speak with any personal injury lawyer, he or she will tell you that adjusters simply give a hard time to foreign-born accident victims.

Very often, some insurance companies assign claims made by immigrants to a special investigative team where it is made clear that the claimant is suspected of fraud, asked to give a statement under oath before a stenographer and inappropriately treated as a criminal suspect.

Insurance adjusters have numerous other methods they utilize to wear down a claimant.

They will delay settlement of a case if they know the claimant is financially strapped, hoping they will “starve out” the victim into accepting a lower settlement than is deserved.

They will pretend they believe the stories of biased witnesses who will take a hostile position against you. They will hire an “expert” witness whose opinion is bought and paid for, i.e. a “liar for hire” to say your case is weak or contrived.

They will demand receipts for goods damaged in a flood or fire, knowing full well that nobody holds on to receipts for furniture or clothing for years.

They will hire detectives to place you under surveillance if they have the slightest suspicion you may be faking disability.

They will hire physicians to examine the medical records of your entire life and minimize the impact of your claim, saying the damages resulted from an injury you received 20 years ago or had at birth.

If you are claiming against somebody else’s insurance policy, their first line of defense is to blame you. Of course, it was “all your fault.” Thankfully, the Massachusetts state legislature and the courts are fully aware that the insurance companies cannot always be counted on to do the right thing.

Massachusetts General Law Chapter 176D was enacted to require insurance companies to effectuate fair and prompt resolution of claims, and making it unlawful to force claimants to litigate unnecessarily.

Violation of this law is actionable under the Consumer Protection Act, G. L. Ch. 93A; triple damages and attorney’s fees are possible. So you can sue the insurance company for “unfair claims settlement practices.” Naturally, I have found this increases offers pretty quickly.

In the course of a claim against an insurance company, the insurance company can be required to produce documents for inspection by a claimant’s lawyer.

All of the notes and documents in the possession of the claims adjusters, the training manual used to train the adjuster, internal memorandum about your claim, supervisor’s notes, and similar documents can be requested.

Nobody on either side enjoys court cases. Unfortunately, the insurance companies often leave us no choice.

 

The author is a nationally prominent writer and civil litigator. He is the author of How to Win a Lawsuit Without Hiring a Lawyer and recipient of the Lawyer of the Year award from Massachusetts Lawyers Weekly. He serves as General Counsel for the National Writers Syndicate. Attorney Grossack consults with clients in Hull and Newton, Massachusetts. He can be reached by phone at 617-965-9300 or email at dgrossack@gmail.com.

Suing the Credit Reporting Agencies by Attorney David Grossack

When a large, remote and impersonal bureaucracy can make decisions about you that may affect major parts of your life, it clearly does not reflect well on our society. These decisions range from the ability to get a mortgage, an auto loan, a job or the interest you’ll pay on a credit card. But, as every adult knows, the giant credit reporting agencies have that kind of power. TransUnion, Experian and Equifax are the leaders of the industry.

What makes the situation more disgusting and aggravating is that on May 14, 2011, the New York Times (not exactly a scandal tabloid) reported that the credit rating bureaus have a two-track system for resolving errors. One for the rich, well connected and celebrities, and one for everybody else.

All these major agencies, Equifax, Experian, and TransUnion keep a “VIP” list that includes judges, politicians, and celebrities. These folks get special consideration in fixing mistakes on their credit reports. Their mistakes are corrected quickly. The rest of us can be sent to voicemail or a call center abroad.

Unfortunately for the credit bureaus, even for “everybody else” there is a legal requirement that the agencies do meaningful research and analysis, and it is almost never done.

That’s where lawyers and their clients can recover damages.

When a credit reporting company distributes false, derogatory information that damages you (after they have been asked to correct it and have failed to do so), it is time to speak to a lawyer. There is a good chance that you have a case and can recover damages.

A federal statute, the Fair Credit Reporting Act, Title 15 U. S. Code Section 1681 is the chief remedy for violations of consumer rights under this law. It can be litigated in state or federal court.  Actual damages (like financial loss or mental anguish) are allowed, as well as punitive damages and legal fees.

 

The author is a nationally prominent writer and civil litigator. He is the author of How to Win a Lawsuit Without Hiring a Lawyer and recipient of the Lawyer of the Year award from Massachusetts Lawyers Weekly. He serves as General Counsel for the National Writers Syndicate. Attorney Grossack consults with clients in Hull and Newton, Massachusetts. He can be reached by phone at 617-965-9300 or email at dgrossack@gmail.com.

What Lawyers Know and Clients Don’t Know About Divorce by Attorney David Grossack

Decades ago, years before I was a lawyer, I met a very distant relation by the name of Anita in Santa Monica, California. Anita lived in a kind of weird “human potential” community near the beach. I think we can safely call it a cult.

But this cult had one really clever idea. Their “marriages” were done on three year renewable contracts, so no divorce proceedings were needed. I am not sure that the marriages were legal, but the real point is that the contract spared hassle and expenses for the parties. I thought then and believe now it was a brilliant idea.

While religious doctrines and governments encourage marriage, well over half of all marriages end in divorce, wounding children emotionally for life, causing financial and psychological havoc for the parties, and enabling lawyers to pay their bills.

Divorces are often vicious arguments over sex and money, and cause parties to think emotionally rather than logically. This results in simply prolonging the battle and helping the lawyers pay more bills.

The best way to get divorced is to negotiate with your spouse, work out a draft settlement agreement and try your hardest to avoid fighting over things. The less there is to fight over, the less money you’ll be spending in divorce lawyers, hopefully.

If there are issues that cannot be worked out, anything can happen, whether fair or unfair, sensible or irrational or otherwise, because judges are human, fallible,  and subject to emotions and biases and can easily make mistakes.

Custody disputes in theory are supposed to be decided on only one factor. What is in the best interest of the child?

I have seen judges appoint very qualified experts, advise them on custody issues, and then totally and dangerously (for the child) completely ignore the report.

One disturbing case involved a mother who refused to read the labels on prescription bottles, deliberately exposed the child to lead paint and hassled the father over visits.

Despite an opinion otherwise by the G. A. L., this unqualified mother got custody, though a few years later she changed her mind.

The worst aftermath of a divorce is often financial. Instead of being responsible for one household, the parties are now responsible for two households, and the burden usually falls on the husband.

Men wind up living in cars, living in their parents’ basement, and frequently face a downhill spiral leading to substance abuse and other issues from the financial difficulties and frequent mother’s alienation of the children’s affections from the father, which the courts rarely act upon.

If the parties cannot agree on a division of marital property, judges have statutory guidelines (in Massachusetts G. L. Ch. 208 Section 34) to follow.

Most of the guidelines center around:

1.      Which party has contributed more to the marriage?

2.      How have the parties behaved during the marriage?

3.      What is each spouse’s prospects for future earnings and career advancement?

4.      What was the length of the marriage?

They can take into account the health, education, current occupation, age and related factors in making their decision.

Many more sophisticated parties will do things to avoid these issues in the beginning. They may hire an investigator to check the background of the prospective bridegroom or bride, to rule out a criminal or other questionable past, or to ensure the motives of the prospective spouse are not monetary.

There are, as is now well known, private investigators who will tempt a prospective spouse with a “pickup” by an attractive prospect to test the fidelity of the future (or present) bride or bridegroom.

These measures, though controversial, can help avoid a bit of heartache in the future.

Another cost saving and aggravation saving measure is the pre-nuptial agreement. This requires full disclosure of assets by each party and a carefully designed schedule of how the marital assets will be divided and alimony paid if the marriage breaks up, and the figures usually change depending on how long the marriage lasts.

While it is not exactly a romantic concept, and seems to reduce the marriage to a business deal, the reality is that when the marriage fails, money, not love, is litigated.

Do you always need a lawyer in a divorce?

The more you have at stake, and the less you can agree to, the more you need a lawyer.

Can you do it yourself?

If you cannot find a lawyer you can work with or can afford, the answer is often yes. For example, the Plymouth probate and family court has a website prompted in part by the author’s lobbying that provides a library of forms and information that helps unrepresented litigants handle divorce themselves.

In any event, if you are planning either a marriage or a divorce, do your research. You can save enormous amounts of money, time and aggravation with advance planning.

Attorney David Grossack has been litigating in divorce court for over 30 years. In 1999, he received national recognition including being named lawyer of the year by Massachusetts Lawyers Weekly for suing the judges of Massachusetts for discrimination against men. His videos “Grossack on divorce” appear free on youtube.com.

 See

http://www.youtube.com/watch?v=L6vfh8XuOxs

http://www.youtube.com/watch?v=9l5iJgIZWfM

http://www.youtube.com/watch?v=kIF3epzVZiY

Attorney Grossack sees clients in Newton and Hull. Call him at 617-965-9300 or email at dgrossack@gmail.com.

Using the FDCPA to Turn the Tables on Bill Collectors by Attorney David Grossack

For the past several year, my law practice has been increasingly focusing on using the Federal Fair Debt Collection Practices Act (FDCPA, Title U.S. Code § 1692) to help consumers whose lives are intruded into by ruthless companies seeking to squeeze every possible cent from them by means of all kinds of threats, badgering and other illegal conduct.

Abusive conduct in debt collection is unlawful and consumers have many rights that must be respected. Even technical violations of the law can bring consumers the opportunity to make claims against bill collectors.

For example, every time a debt collector makes any contact with a consumer/debtor (as opposed to a business debtor), he must give what is called a “mini-Miranda” warning, that is, notifying the debtor that the contact is an attempt to collect a debt, and that any information obtained will be used for that purpose.  So if you tell a bill collector where you work, the bill collector may well end up garnishing your paycheck.

You also have the right to have a validation of the debt upon the request within 30 days. This means that you are entitled to see evidence that you really owe the money.

The debt collector is forbidden to tell third parties that you owe money. This is often broken by debt collectors. One jerk even asked a client’s brother to pay his debt for him.

Nor are they permitted to threaten to tell third parties that you owe money. This kind of behavior can definitely precipitate lawsuits.

Excessive phone calls can also result in liability for debt collectors.

Some debt collectors have been known to pretend to be police officers or court officials, which of course is quite illegal.

Recently, our office was able to recover twice from the same collection law firm, when that law firm contacted our client on two different occasions while we were representing her.

Incredibly, the lawyers didn’t bother to tell their staff that the supposed debtor had a lawyer!

Communicating with a debtor when the debtor is known to have a lawyer is, of course, completely illegal, and if lawyers do it, it violates Bar rules as well.

This is just an overview of some of the many ways bill collectors can wind up having the tables turned on them.

Claims against bill collectors are almost always made on a contingent basis. That means the client pays no legal fees unless there is a court award or settlement.

Be certain to take the time to document when you are called, and ask who is calling you, what their address is, and take notes.

Request that you not be called again.

You can be certain that they will tape their conversation with you.

These recordings are revived when claims for abusive treatment come up for settlement negotiations.

Numerous regulating agencies such as the Federal Trade Commission, state Attorney General and others often become involved when collection agencies break the law. Bar officials will take an interest when collection lawyers overreach.

The author is in private practice in Newton and Hull, Massachusetts. Visit his website http://www.grossack.com. He can be reached at dgrossack@gmail.com or by phone at 617-965-9300.

How to Fight Back When Credit Card Companies Start Chasing You by Attorney David Grossack

Credit card companies have made themselves indispensable to most Americans, but they have also become a source of considerable aggravation, engaging in quite predatory behavior by charging high interest rates, over-limit fees, late fees and, of course, membership fees.

They engage in bullying tactics when you are late. They’ll repeatedly call your cell phone when you are driving, use automatic dialing machines, hire callers with voices like ghetto thugs, and use most vile collection agencies who have scruples. They’ll call you three times a day every day of the week to get your money.

People chased by credit card companies (or their lawyers, collection agencies, or debt buyers) are usually sickly, elderly, or lost a job or a business or just down on their luck.

They are allowed to charge high interest rates because states like Delaware and South Dakota permit interest rates to be anything the credit card company wants it to be, and have no usury laws that apply to credit cards. The U. S. Supreme Court has said that all other stases have to accept the rates charged by these companies.

One South Dakota company charges 79% interest.

Not long ago, a Superior Court judge in Salem, Massachusetts refused to uphold a Citibank claim for 54% interest, issuing an opinion that anything above 18% is unconscionable. Unfortunately, the state appeals court came to Citibank’s rescue and overturned the decision.

Nevertheless, I would urge readers to seek a jury trial every time a credit card company sues claiming an interest rate over 16%, and raise a defense of unconscionability.

But before it gets that far, first look for your credit card membership agreement when you finally decide that you don’t want to pay them anymore. That agreement gives you the address to write to when you have important business with them.

Send them a letter like this (mark it Exhibit “A”):

Dear  _______ Bank:

            I am writing to change the terms and conditions of my contract with you.

            From now on, my APR (annural percentage rate) is 0%.

            You agree to accept $10 a month from me to pay off the balance and to undertake no further collection action so long as I continue to send in $10 or more a month.

            You agree not to report me to a credit reporting agency.

            I enclose $50 towards my bill.

           Should you violate this new agreement, you agree to be liable for $15,000 for each violation.

                                                                                                            Sincerely,

                                                                                                            Douglas Debtor

Write on the back of the check “payee agrees to the terms and conditions attached as Exhibit “A.” Staple the check to the letter.

The credit card company will cash the check and ignore the letter. Be sure you have a copy or the check (both sides) and of the letter.

If past experience is any predictor, they will cash the check.

Now when they come to recover their bill, you have a defense and a counterclaim. You may not win, but if you plead and argue your case properly and demand a jury trial, the credit card company will either compromise or give up.

In one case, the author insisted on taking the deposition of the president of the credit card company.

The lawyers just dismissed the case. It was over.

When you are sued, you have the right to pose written questions called “interrogatories” to the other side.

There are some questions the credit card company just doesn’t want to answer. I have seen them dismiss cases rather than answer the questions.

Similarly, requesting certain documents has made them walk away.

Very often, credit card companies will refer your account to a collection agency or to collection lawyers who don’t know what they are doing.

Sometimes they’ll sue a consumer after the statute of limitations is over. They recently did that to one of my clients and because that violated numerous state and federal laws, I obtained a monetary settlement for my client.

Sometimes they’ll continue to contact a client who is represented by a lawyer. One law firm did that to the same client of mine twice in the same case. They ended up paying us twice.

Sometimes they’ll call too many times even after you ask them to stop. This has resulted in settlement for our clients, too.

It is also against the law to tell relatives and friends about the alleged debt. Nevertheless, they do it. This works out well for me and my clients.

Recently, a court decision came down in a federal court in Massachusetts when a debt buyer sued a woman in the wrong court. Under federal law, debt collection lawyers sue a consumer in the court closest to where she lives. They didn’t. She won money.

So you have rights, and there are strategies you can use to tame credit card companies and the bullies who work for them.

Don’t put up with them. Fight back.

The author is in private practice in Newton and Hull, Massachusetts. He is experienced in representing and advising credit card debtors as well as collection agencies. You can call him at (617) 965-9300.

From Small Claims Court to Jail!

It is not unusual for people to ignore court proceedings, especially small claims cases. There is a prevalent feeling that a small claims court has little power and that a decision from a small claims court has little, if any, teeth behind it.

Because many of the people who use the small claims court are non-lawyers who don’t have much familiarity with how things work in enforcing judgments, it is easy to see how this misunderstanding arose.

But when lawyers (or sophisticated users) of the small claims system seriously aim to recover their debt, they have options that can make a debtor very uncomfortable.

Let’s assume you are used by a debt buyer or credit card issuer in small claims court, and you don’t show up.

You’ll lose.

A judgment is issued against you quite automatically.

That judgment gives the company that sued you (the plaintiff) to request an Execution, a document giving a sheriff or constable the authority to seize your car or even auction off your home.

That document can also be used in many states to attach most of your paycheck.

While there are occasional protections (such as homestead or if you were canny enough to place your home in a trust) to foil these claims, it’s not always simple and bulletproof.

Let’s say the plaintiff can find no assets to seize or paycheck to attach.

Then, the plaintiff can bring what is called in Massachusetts “supplementary process,” or an action on the judgment. In some states, is called a “poor debtor examination.” In any event, you will get a summons to appear to explain why you haven’t paid the judgment.

Blowing off this summons is a bit risky. Not appearing is considered a contempt of court.

When you fail to appear, a document called a “capias” is awarded to the plaintiff.

The plaintiff can bring the capias (which is, essentially, an arrest warrant) to a constable and have you placed in jail.

Then, the judge has discretion to decide to let you out after payment of all or part of the debt. This is a position in which you definitely do not want to be.

Therefore, it is wise to learn how to avoid it by confronting the case as soon as you first learn about it.

Every credit card case can be whittled down to a fraction, if you know how to play the game. The game is to make the case such a nuisance for the credit card company, (or debt buyer’s lawyer) that they want to get rid of it, and will let you out cheap.

There are a dozen strategies and methods to use in challenging credit card debt. The interest rate is unconscionable. Many debt buyers cannot prove their case. And there’s more. File an answer and learn the procedural rules by asking the court clerk for them as soon as you get notice that you have been sued. Then, try to switch the case into a civil action where ordinary court rules apply, so you can demand documents in your opponents’ possession and insist on a jury trial. But that is another set of lessons.

By all means, read my book, “The Plasticators’ Workbook,” which is available at citizensjustice.com. It tells you my strategies for dealing with credit card companies.