Appointment Cancellations: Equity is Always the Exception

Any professionals (read:  mainly doctors) who charge cancellation fees with no exceptions are just ridiculous.

People sometimes cancel their appointments or fail to even show up at all; it is just part of doing business with the general public.  Things happen: cars break down, people run out of gas, your boss won't let you off work. Fellow lawyers--who hasn't had a hearing set by the judge at the same time you were supposed to be somewhere else? Court wins almost every time because that is your livelihood.

For chronic cancellations or no shows, I fire the client.  Otherwise, I do not see the wisdom in punishing the vast majority of my clients because of those rare inconsiderate people.  If you do not respect my time, then I have none for you. All others get the benefit of the doubt, and on the occasion when I'm late because life happened, or outside factors, I expect to get it in return. 

I've never even considered charging a cancellation fee and I've never heard of any other attorneys doing so. Has anyone out there ever been charged a cancellation fee by a lawyer? Tell me about it in the comments. 

On the issue of respecting my time, an hour wait at the doctor's office is ridiculous and completely disrespectful of a patient's time.  Life happens, and if it is not a chronic problem, I try to be understanding as the patient.  Emergencies (personal and professional) happen to doctors too.  Who hasn't waited extra long at the OBGYN to find out that the cause was an emergency delivery or some other much more important situation? If the wait is always an hour after my appointment time, then I start looking for a new doctor.  The doctor clearly does not value my time as highly as he or she values their own and that is unacceptable.

Which brings me back to the cancellation fee.  Recently I waited an hour past my appointment time to see a pediatrician.  No apology or explanation was given.  The next week I had to cancel an appointment at the last minute because of outside factors beyond my control. Same doctor sent me a bill for $25. Clearly, we have a different way of looking at things, and she will get her $25 but also never see any of my family again. So she made her co-pay for that allotted time, but she loses all the future co-pays and more importantly my good will.  Yes, I've already had one of those "catch up" conversations in the grocery store parking lot with a fellow mom looking to move pediatricians and I thoroughly trashed this doctor's office policies.

I hated ethics class in law school because the professor was a west coast philosophy major who had never stepped foot in the real world to practice law and the course was in no way geared to prepare us for the MPRE.  In fairness to the professor, this was my last year and I was totally over it. 

I have to give that professor credit though, because she taught me a concept that has never steered me wrong:  Equity is always the exception.

This doctor with the cancellation fee not only needs to think harder about her business model but about fairness in general.  She has lost two new patients in less than 3 weeks, all for $25 because I guess my cancellation messed up her one hour ahead overbooking policy.  

I hope she buys a coke and a smile with it.



JAS

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Thoughts on Women Attorneys and the Conundrum of Appearance

I was sworn in by the late Judge Clinton Foster in September 1994.  My husband, Bob, was two years ahead of me in law school and was working as an assistant public defender.  Bob's entire case load was on Judge Foster's docket so Bob asked Judge Foster to do the honors when I got my bar exam results.

After the pictures and congratulations he told me to "make an appointment with my girl and come talk to me. I'd like to give you the benefit of my 40 years of practicing law."  So I did.  Judge Foster had a lot of good advice that day, but the one thing he said that has stuck with me for 19 years is this:

"Let me tell you how I feel.  

The thing I hate to see the most is a

 woman attorney trying to act like a man."

You are probably thinking that this was an awful thing for him to say and it was (I'm sorry Judge Foster!):  it is sexist, for starters.  But don't beat up Judge Foster too much.*  For all the faults to be parceled from what he said, this bit of our conversation remains to this day to be one of the best lessons I have ever learned about the practice of law.

Whenever I have a conversation with a new woman attorney, I always tell this story.  Why?  Because it illustrates the main concept that influences how I present myself every day as an attorney.

Dress for your audience.

As an attorney, it doesn't matter how you feel about how you look for court.  How you feel is totally irrelevant.   You are there to do a job:  if you are in the courtroom or chambers it is to convince the judge to do what your client wants or needs.  If it is in trial, it is to convince the jury to see the facts your way and the judge to see the law the way that best benefits your client.  In the negotiation room, it can be any of a number of goals depending on the particular dynamic.  Meeting with clients? You want to develop a good rapport and impress them without being unapproachable.

Does it matter how you look when you are doing your job?  I'm sorry but yes, it does.  That is life. Everyone is influenced by the appearance of the people around them. I cringe when I hear younger women attorneys talk about how they are going to dress like they want and force everyone to deal with it.  That's a nice sentiment.  I guess.  But this isn't Utopia, and our jobs as attorneys is to persuade. We teach our children that they shouldn't judge a book by its cover but the truth is that we all do it to some extent.  Maybe not "judging" but we are influenced by how we perceive other's appearance.  My goal with my appearance is always to wring the maximum benefit out of it in any given situation.  If you are not doing that, for whatever reason, are you really doing your job well?  I don't think so.  I think you are letting a major advantage pass you by, and maybe hurting your client in the process.

Early in my career someone told me that the late Judge Bower's father was a "holiness" preacher.  I don't know if that is true, but from that point on I wore only demure "Sunday" dresses or the rare dress and blazer combination in his courtroom. Same goes for Judge Foster.  Both of our recently retired female judges were very sharp dressers, so I always made sure that my look was totally on point when I had court with Judge Costello or Judge Pittman. A law school classmate of mine was recently appointed to the circuit court. When I eventually have court before Judge Gay you may rest assured I will be wearing my best and that it will also be my most fashion forward because Shonna Gay knows her clothes and shoes.  I know a private criminal defense attorney who once made her fabulous hot pink high heels the centerpiece of her closing argument.  She won because she has skills not because the jury liked her shoes, but the point remains that she made an argument using the shoes on her feet to persuade the jury to come back not guilty.

This is not a concept that only works for (or against) women.  Men do it too, it is just easier for them. Basically, all men need to do is wear a suit and tie, get a good hair cut, keep up their basic personal hygiene.  Beyond that, throw away the clown ties (personal pet peeve) and buy some decent shoes. Depending on the situation, tone it down. If you work for the public defender, maybe don't wear a $1,000 suit.  Simple things, really.

My advice to women attorneys is ignore all the "how to dress" type articles out there. Don't even read them, all I ever do is get mad when I do. Invariably, another woman has made a list which consists of: Wear a skirt.  Put your hair up.  Don't wear pants. Wear hosiery.  Wear makeup, but not too much (you'll look aggressive/slutty/frivolous/stupid) or too little (you'll look dowdy and no one likes a sexless spinster).  Wear enough make up so you look "put together" or "polished" and above all else, "natural."  Wear heels, but not too high because that's slutty and not too short because that's dowdy. Look attractive and soft but not too soft because you have to look serious and above all, don't look "manly" because the death of your career is some man thinking you are too aggressive.  Make sure you look "feminine." Don't look trendy but don't dress dowdy either.

Who has time for that?  Not me.

For women attorneys, there's a lot more to consider with respect to our appearance, and there is no one foolproof suit we can wear that works for any situation.  So, I start every day with a review of who I'm going to interact with and how.  When in doubt, I go for the more conservative clothes, hair and makeup.  For shoes (my favorite part), in addition to the above considerations, I think about comfort and whether or not I can wear them all day if that is on the agenda.

In the end, I think women attorneys have an advantage here, however subtle.

My advice is this:  use it.

Julie

*I loved Judge Foster to pieces and the point of this post is not to run him down in any way.  He was a great jurist and attorney, and a good, decent human being. So please do not judge him by this one anecdote.  He always did what he thought was the right thing, even when it wasn't popular or easy. He once found a couple suffering from AIDS guilty of cultivating marijuana (which back then was used to alleviate the side effects of the medications) and rejected their defense of medical necessity.  He withheld adjudication, and sentenced them to one year of unsupervised probation and 500 hours of community service only to be discharged by rendering "care, comfort and concern to each other."  The sum of Judge Foster's character was made of way more than this one off the cuff comment he made to me in the Fall of 1994.

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story Redux

Back in March, I told the story of my old client Faye in three parts:  Part One, Part Two, and Part Three.

The critical moment in Faye's story was when at the eleventh hour on the eve of the bench trial on the issue of whether or not Faye's brothers would be heirs of their mother's intestate estate, Faye and the private investigator both located copies of the Final Judgment of Adoption.  When we disclosed to the brothers' attorney that we had located the document, the brothers dropped their claim.  So we never had to go to court and prove the fact of the brothers' adoption, which was essential to Faye's case.

My next post will go through how I had planned to get the key pieces of evidence admitted into evidence at the bench trial.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Homestead, Will Contests, and Car Titles: The Last of Smokey Susan

Last month, I shared the sordid tale of one of my least favorite clients, Smokey Susan.  Susan's case involved numerous aspects of Florida probate law, some of which I addressed in this post, here, and here.

In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.

The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac.  For more information about how to transfer a title to a car after the owner dies without probate, check out this post.

Lastly, Susan's case involved a will contest.  The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.

A short epilogue to Smokey Susan's story:

Whatever happened to Joe's remains?  Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house.  Susan did pay for Joe's funeral.  But don't give her too much credit for that sole act of decency;  she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.

Like I said, Susan was a real piece of work.


Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Statutory Interest Rate in Florida: October 1, 2013 Adjustment

In May 2012, I told you about the new model for statutory or judgment interest in Florida here.  The October 1, 2013 adjustment is out, and it is basically a non-adjustment.

Judgment interest remains 4.75% per year, with a daily percentage rate of .0130137%.  You can see the adjustments, starting with the first one under the new law in July 2012 at MyFloridaCFO.

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

A Struggle of Wills: How to force the Custodian of a Will in Florida to Provide a Copy

Just as in the case of Smokey Susan, I encounter many clients initially because someone else claims to have the last Will of a recently deceased which the client believes impacts their interests one way or the other.  Under Florida law, if you are the custodian of the original Will of an individual, you are required to deposit the original Will with the clerk of the court in the county where the deceased last resided, within 10 days of your notice of the death.  Note that the time is measured from notice of the death to the custodian, not from the date of death.

Most people are totally unaware that this law exists.  Many people choose to ignore the law, not always for nefarious purposes.  I have many clients who choose not to deposit their deceased's Will because we have determined that there is no need for probate and not filing the Will keeps the terms totally private.  The only downside to this course of action is if the Will is lost and a subsequent probate is needed then we are either left with the expensive task of proving a copy of the Will or in the worst case scenario, a decedent who is rendered intestate.  Most people are willing to take that risk, either for privacy concerns or out of sentimentality.

Some people refuse to provide a copy of the Will, or deposit the original with the clerk for the wrong reasons.  Most of the justifications for not depositing the Will with the clerk are just rationalizations which can be summed up in one word:  Greed.  Unfortunately, the old estate planning adage that "blood is thicker than water, but money is thicker than blood" is true.

When a party having the original Will refuses to deposit it with the clerk, or even provide a copy to my client, I make a demand for compliance with the statute by letter and serve it by certified mail, return receipt requested.  I usually set a 10 day deadline, tracking the notice provision of the statute.  Strictly speaking, the 10 day time period is not required nor is the demand letter.  But in practical terms, you need to show the court that you gave the custodian a chance to comply with the statute.  Otherwise, the first thing the custodian will claim is "I didn't know about the death" or "I didn't know about the statute."

The statute authorizes an action to compel production of the Will and after notice, for an award of attorney's fees and costs and damages associated with the failure to produce the Will.  Another reason to make the formal demand first is that even though the statute only requires petition and notice, in my experience in almost every situation like this, the court wants to see that this isn't the first opportunity the opposing party had to comply.  So, I would never walk into court after the opposing party produced the Will and expect an automatic award of attorney's fees and costs unless I could show the "pre-suit" demand had been made.  Only in a situation where my client is going to suffer immediate harm due to a failure to produce the Will would I even consider foregoing the pre-suit demand.  Even then, I would try to give at least a 24 hour demand first.   As far as damages go, there are no reported cases on the topic and I would not expect to receive such an award absent really egregious circumstances, or some very clear cut and unattenuated damages.

The way this really works is I send the letter and 99% of the time, the person takes the Will to the courthouse and files it with the clerk from whom I then obtain a certified copy.  In 19 years, I've only once had to actually file an action to compel production of the Will and I did it by filing a petition for administration as if the decedent was intestate and adding allegations regarding our demand and her failure to act.  Then I filed a separate motion in the probate to compel her to produce the Will. Unbelievably, she still failed to produce the Will. The court entered a second order, held her in contempt, and assessed attorney's fees and costs against her. Only then did she produce the Will.

The litigant in that probate tried every shady tactic out there to cut her nephew out of his one-half share of the estate.  She even tried to argue that jurisdiction was in Alabama, and that's why she did not have to produce the Will while at the same time alleging that the deceased was the owner of homestead property in Florida.  Since you cannot own a homestead in Florida and be a non-resident, this was the most ridiculous argument of all.

So, the take away from this post should be that if you have possession of a Florida resident's original Will, after they die and you know about it, you need to take it to the courthouse in the county in which they resided.  If you do not know about their death, once you receive a formal demand under the statute to produce the Will, produce it! No harm, no foul.  If you fail to act after notice and demand, eventually, you are going to have to pay someone's attorney's fees for taking you to court and that never ends well.  There is even the possibility of a damage award so the best course of action is to file the Will as soon as you know the testator/testatrix has died.

If you are on the other end of the equation, ask nicely first, then make a formal demand, then file the probate and a motion to compel.  If there are extenuating circumstances where you will suffer specific harm due to the failure to act, make those known to the custodian at every opportunity in order to strengthen your case for damages down the road.

Cheers everyone, it's the Weekend!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Cariou v. Prince: A Long Overdue Update

One of my very first posts to this blog was supposed to be about a Louis Vuitton bag, but ended up being about a huge copyright case concerning appropriation art and the fair use doctrine.  The Cariou v. Prince case has made its way from the trial court (Southern District of New York) to the appellate court (Second Circuit), and is now back with the trial court.  The Second Circuit reversed the district court, and remanded the case as to five works for further consideration under the standards set forth in the Second Circuit's opinion.

For a detailed discussion of the Second Circuit's opinion, look to these articles:  Art in America Magazine, Hyperallergic (my favorite), NY Times, or the Gallerist.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved