Lawyers (A Morality Tale in 6 Acts)

ACT FOUR

Over time, the civil justice system changed. The changes were subtle at first, starting with changes in the lawyers. Then the changes made their way to the people.

The third lawyer continued to read fast, learn quickly, think well, and work efficiently. The rich and powerful still liked him because he gave them better results for less money. And that was the problem for the third lawyer – the “less money” part. His partners saw that he billed fewer hours and therefore brought in less money to the big firm than they did. They decided that if he billed fewer hours and brought in less money than they, then he should also make less money than they.

So they voted to reduce his compensation.

The first lawyer continued to work very hard. He worked long hours and worked late every day and kept working on Saturdays. The rich and powerful still liked him because he worked so hard and devoted himself to their cases. He began to think that his way was the only way to do things, and that his two partners should work as long and hard as he did. He began to check their offices at night and on Saturdays to see if they were working. Because they weren’t, he decided that they shouldn’t make as much money as he.

He thought the second lawyer should still make more than the third lawyer because he billed more hours and brought in more money to the firm. But since he didn’t believe the second lawyer actually worked all those hours, he should make a little less than the first lawyer.

The second lawyer continued to bill lots and lots of hours. He kept good records and wrote down lots of time. But the rich and powerful began to suspect that he wasn’t actually working all those hours. And he wasn’t – he had discovered golf. So he golfed on afternoons and on weekends, but he still wrote down lots of time.

The rich and powerful started to question his bills, and his two partners found themselves scrambling to justify charging the rich and powerful for all those unworked hours. But, by and large, the rich and powerful still paid most of the bills. So the first lawyer was happy as long as the money came in, but the third lawyer wasn’t happy. He thought his two partners were ignoring an ethical problem with the second lawyer.

The fourth lawyer continued to be a champion for the poor and lowly. He continued to get them money for their pain when they were hurt and continued to right wrongs when they were wronged, and to get them money for the wrongs. He continued to get money for the poor and lowly from the rich and powerful, and to get forty cents for himself for every dollar he got for them.

He learned that the worse he made their injuries sound, the more money he could get for them – and for himself. He also learned that they didn’t even have to be hurt if he could make it sound like they were. So he started advertising, trying to drum up more business that he could get money for. The big firm started calling him an “ambulance chaser” or, worse yet, a “TV Guide lawyer,” since he advertised in the TV Guide.

And God saw that it was not so good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT THREE

Things went well with the big firm for a while. The three lawyers got along famously.

The third lawyer was very smart. He read fast, learned quickly, thought well, and worked efficiently. In half the time, he could do the same amount of work as his two partners. The rich and powerful liked him because he was smart and efficient. With him, they got more work and better results for less money, so they sent him more business. His partners liked him because the rich and powerful sent him more business, and so they all made more money.

Everyone was happy with the third lawyer.

The first lawyer worked very hard. He didn’t mind working long hours, and so he worked late every day. He even worked on Saturdays. The rich and powerful liked him because he worked very hard and was not afraid to devote himself to their causes, so they sent him more business. His partners liked him because the rich and powerful sent him more business, and so they all made more money.

Everyone was happy with the first lawyer.

The second lawyer billed lots of hours. No one was sure when he actually worked those hours because they didn’t see him late at night or on Saturdays. But he kept good records and he wrote down lots of time. The rich and powerful liked him because when they looked at his bills, they saw that he was spending lots of time on their cases, so they sent him more business. His partners liked him because the rich and powerful sent him more business, and so they all made more money.

Everyone was happy with the second lawyer.

Things went well with the fourth lawyer for a while. When they were hurt, he got them money for their pain. When they were wronged, he got the wrongs righted – and got them money for the wrongs. The poor and lowly liked him because he got money for them from the rich and powerful, so they sent him more business. He liked the poor and lowly because, for every dollar he got for them, he got forty cents for himself.

The big firm liked him because when he sued the rich and powerful, the rich and powerful sent the cases to them, and that created more business for them, and so they all made more money.

Everyone was happy with the fourth lawyer.

Life went on in the big city. Justice replaced injustice.

The rich and powerful didn’t oppress the poor and lowly as much anymore because when they did, the plaintiff’s lawyer sued them and took some of their money. The poor and lowly didn’t scam the rich and powerful as much anymore because when they did, the big firm stepped in and saved the rich and powerful from the scams. A prayer of praise went up from the people, thanking God for giving them lawyers.

And God saw that it was good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT TWO

Two of the new lawyers banded together with the first lawyer to create a firm, and they lived in one of the tall buildings downtown. They decided that their mission from God was to help the rich and powerful get richer and more powerful – and by so doing, to help themselves become rich and powerful. The rich and powerful promised to pay them for every hour the three lawyers in the firm spent working for them, provided the lawyers kept track of their hours very carefully.

It was a match made in heaven, for the rich and powerful had lots of money to spend on hours, and the lawyers had lots of hours to sell – sometimes as many as twenty-four in a day; sometimes more.

The fourth lawyer decided to stay by himself, so he set up an office in an old house on the fringes of downtown, in the shadows of the tall buildings. He decided that his mission from God was to help the poor and lowly become rich and powerful – and by so doing, to help himself become rich and powerful. The poor and lowly had no money, so he devised a scheme whereby he would make the rich and powerful pay money to the poor and lowly, and they, in turn, would pay him forty percent of everything they got from the rich and powerful – and he wouldn’t have to keep track of his hours.

It was a match made in heaven, for the poor and lowly had lots of claims to make against the rich and powerful, and he had all the time in the world to devote to the poor and needy.

The fourth lawyer called the first three lawyers a “big firm.” The first three lawyers called the fourth lawyer a “plaintiff’s lawyer.” Together they formed the civil justice system.

And God saw that it was good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT ONE

Once upon a time in a big city with tall buildings downtown, the rich and powerful lived side-by-side with the poor and lowly. And injustice reigned.

The rich and powerful oppressed the poor and lowly.

The poor and lowly scammed the rich and powerful.

And a mighty cry for deliverance went out from the people, a prayer to God to save them from themselves.

God heard the cries of the people and had compassion. So God created a lawyer. The lawyer created a system of laws to govern the big city. He imposed that system of laws upon both the rich and powerful and upon the poor and lowly. And the injustice subsided.

And God saw that it was good.

But the rich and powerful soon saw a chance to use the system for their own ends. The lawyer needed money to live, so he agreed to sell his services to the highest bidder. The rich and powerful had money to pay, while the poor and lowly had none, so the rich and powerful hired the lawyer as their own.

Soon the rich and powerful again oppressed the poor and lowly, but this time under the weight of the law. So the poor and lowly cried out for deliverance from the rich and powerful and their lawyer. “There are too many people for one lawyer,” they cried. “Please give us more lawyers.”

God heard the cries of the poor and lowly, and had compassion. So God created three more lawyers.

And God saw that it was good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

HOW TO GET REJECTED

The road to publication, just like the road to hell, is paved with good intentions. Most writers don’t intend to shoot themselves in the feet, but somehow that gun just seems to go off when they least expect it. While the crippling shot may occur during the actual writing of the manuscript, it often occurs during the query or the submission stage. Either way, it can undermine the best of intentions and derail the publication train before it ever leaves the platform.

On the other hand, some writers seem deliberately determined to shortchange themselves and their chances, particularly when querying agents. They don’t accidentally shoot themselves in the feet; instead, they appear to intentionally pull the trigger and fire as many shots in rapid succession as possible. So, if you’re one of those writers who fears success – who wants your query letter to exuberantly leap into the large “rejection” pile instead of finding its way into the much smaller “please submit” pile – this article will give you helpful hints for achieving rejection.

Tell your potential agent or editor you’ve written a fiction novel. Even though a novel is fiction by definition, calling it a fiction novel allows you to destroy, up front, any confidence they might have that you know what you’re doing. Better yet, call it a fictional novel – that means your novel doesn’t actually exist and they can send a fictional rejection.

Tell your potential agent or editor too much about yourself. Sure, they’d like to know what writing experience you have and how your background gives you credibility for your subject, but I’m not talking about that kind of information. I’m talking about information like this from an actual query: “I’m 34, having trouble finding work & am living with my parents.” George Costanza, is that you?

Tell your potential agent or editor that your book is a surefire bestseller. Or tell them how much money you’ll make for them. “Send for my screenplay, read as much as you like, then when you see how great it is and how much money we’ll win, put it on your schedule to market it. I would like at least $800,000. (It’s that good.)” Most agents move e-mails like these into a special mailbox along with other “special” e-mails. Then, at the end of the day, they’ll sit back with a steaming cup of Kona coffee and read about winning the UK lottery, opportunities to help Nigerians invest money in the U.S., and the promise of untold wealth from commissions off your future bestseller. They’ve already got the money spent.

Badmouth yourself or your own work. This is the converse to the previous tip. I saw one query that said, “I never made it out of high school and have been in the army since the age of 17 so my actual writing skills may not be up to par with what you would be used to.” Another said, “My writing style needs a lot of assistance, please do not reject the story based upon my ability to tell it on paper.” Yet another said, “I do not consider myself a good writer, my key board [sic] skills are poor, my spelling is awful and I have forgotten most of what I learned about punctuation.” Need I point out the irony of these correspondents seeking representation as writers?

Misspell as many words as possible. Pretend your computer doesn’t have Spellcheck. Consider this actual e-query: “I have just complete my frist drama script of a series of twenty. I want an anget who can work with me until it gets to the move production house.” Or consider this: “I, am writeing ahorror story. Ti is about a teenage girl that is hoving dream,s about people walking to her with there arm,s out crying asking her to help them.” I pitty the pour riters who kan’t spel or punkchuate any better then that.

Conversely, rely too heavily on Spellcheck. A writer who was writing about the world of magic wrote: “My family holds patents on some elusions reviled in this novel. They were performed during their world wild acts.” I’m just guessing, but I think the writer meant “illusions revealed.” I’m open as to whether “world wild acts” is correct or should have been “worldwide acts.”

Don’t follow submission guidelines. One query started, “Yes, I know it was recommended that I not exceed one page. However, I do not believe the ‘four or five sentences’ of the ‘preferably one paragraph’ is enough to communicate what I am asking you to consider.” Just look at the genius of this statement: This writer went so far as to let the agent know he was intentionally disregarding the submission guidelines. That way the agent wouldn’t think he was simply making an innocent mistake. Genius, I tell you – pure genius.

Respond unprofessionally to rejection. Don’t just accept rejection with grace and dignity. No, instead fire off a reply that says something like “Your loss” or “Your mistake” or better yet, “You strike me as pathetic.” (So what does that make the writer? After all, he’s the one who got rejected by the pathetic.) Or perhaps best, “I’m a 69 year old retired man, who used to chew people like you up and spit them out for practice.” Yikes! I’m not ashamed to admit I actually trembled when I got that one. I still tremble today when I re-read it.

Be overanxious. If you haven’t gotten a response to your e-query within 48 hours, send something like this: “Is it that no one reads e-mail or you just don’t answer any? I find your agency to be totally lacking in business ethics – typical of an attorney who couldn’t make it in private practice.” What a low blow – attacking an attorney when he’s down. That one made me weep. Even today, my self-esteem is so low I can’t look myself in the mirror. Excuse me – I’m getting a little misty here.

Be partially incoherent: “I Am A Freelance Journalist and Columnist writes to YOURS from remote India REGARDING FOR HELP FROM YOURS LITERARY AGENCY HELP – FOR A BREAK TO MY FUTURE AND RECOGNITION FOR MY WORKS.” I think I know what this writer is asking. It’s in the subtext, you know. Plus there’s that subliminal thing of slipping the word HELP in there twice HELP. And don’t we all want a break to our futures and recognition for our works?

If being partially incoherent won’t get you rejected, try being totally incoherent: “Writers address learning, personal &fundamental issues. Some plagued by elusive,idealized understanding. Fears, doubts &mystery . . . Not able to find &use worthy self-venture set-void in endeavor often-obligated &omenous-pulled in,unsettling intent of a writer. In a difficult outstandingly, taught world.” No clue what this one means. Then again, I am a mere mortal and perhaps not on the same intellectual level as the writer. I particularly liked the creative spacing and punctuation. Are mind-altering drugs at work here, perhaps? Groovy, man!

This is by no means an exhaustive listing of ways to ensure rejection. After all, success isn’t for everyone.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

WHAT’S THE DIFFERENCE BETWEEN MEDICARE AND MEDICAID?

Generally, Medicare is a federal program which bases eligibility solely on age and/or disability. In terms of nursing home care, Medicare is limited to covering care in skilled nursing facilities, after a patient has been in the hospital for at least three days. Coverage is restricted to a finite period of time, up to 100 days, but in practice usually only about 10-20 days for rehabilitation.

Coverage through Medicaid, a joint federal and state program administered by the states, is quite a bit broader. Eligibility is based on age, disability, and/or income and financial resources. Medicaid will potentially cover long-term “custodial” nursing home care for eligible individuals. If Medicaid is invoked based on financial eligibility, a “look-back period” of 3-5 years will be used to see if any assets have been transferred for less than market value in an attempt to become eligible. If so, a penalty in the form of a period of denied eligibility may be enforced. The Deficit Reduction Act of 2005, passed by Senate in December of 2005, has tightened the regulations on this.

If you would like more information or would like to speak to an experienced lawyer please contact Tipton Jones.

Paul W. Tipton

(214) 890-09941

ptipton@tiptonjoneslaw.com

The "Ethics" of Contract Attorneys

More and more “solution-oriented” law firms use contract attorneys these days, which raises its own set of problems. How are these attorneys supposed to be treated for billing purposes? May a firm that uses contract lawyers pay those attorneys a set hourly fee, then mark up the fee in their own billing statements to clients?

Or, as the Professional Ethics Committee for the State Bar phrased the question: “May a law firm hire a lawyer who is not an associate, partner, or shareholder of the law firm to provide legal services for a client of the firm and then bill the client a higher fee for the work done by that lawyer than the amount to be paid to the lawyer by the firm?”

In true lawyerly fashion, the answer is that it depends. According to Ethics Opinion No. 577, it depends on whether the lawyer is “in” the firm or not. In determining whether a lawyer is “in” the firm, factors that may be considered include: receipt of firm communications; inclusion in firm events, work location, length and history of association with the firm; whether the firm and the lawyer identify or hold the lawyer out as being in the firm to clients and to the public; and the lawyer’s access to firm resources, including computer data and applications, client files, and confidential information. Examples include lawyers often referred to as of counsel, senior attorneys, and part-time lawyers. For lawyers “in” the firm, a firm may establish an hourly rate that is more than the firm pays those lawyers.

For lawyers not “in” the firm, the firm must bill the outside lawyer’s fees as an expense, without markup, or somehow make a clear presentation of the bill to the client showing no markup based on the attorney’s time. If the firm bills a client a different amount than what it pays the lawyer, that is considered an impermissible division of fees under Disciplinary Rule 1.04(f) unless these criteria are met: the fees are proportional to the services performed or there is joint responsibility for the representation, there is written client consent to the fee division, and the total fee is not unconscionable under Rule 1.04(a). Additionally, the firm may not incorporate the “non-firm” lawyer’s name, work, and time into its own bill unless it does so in a way that identifies the non-firm lawyer as a lawyer who is not in the firm.

Just when you thought it was safe to go back into the water . . .

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com