Don’t Write On The Originals!

Sometimes potential clients will come to me with documents already prepared.  Many times they will have yellow highlights, written notes, comments, thoughts, cross-referencing to other documents and other “blemishes.”  Is this a good idea?  While some attorneys might disagree with me, I both love it and hate it.  What?  Why do I say that?

I hate it when clients write on the originals.  Then they are of limited use as exhibits at trial etc.  I need the original without your thoughts and opinions which are meant for your lawyer.  So please DON’T WRITE ON THE ORIGINALS.

DO write on copies.  I love it when you write on copies because then I have your thoughts and opinions and can tell what is important to you.  It also lets me see how analytical you are, how reasonable you will be, and how clearly you think and write.  That helps me understand if we would be a good team for your litigation.


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Doing My Best

I care about every case and every client.  They come to me for help.  I try my damndest for them.  But sometimes I lose.  God I hate that.  It hurts to lose.  But there are some clients (a very few) where I watch the impact on them and it hurts even more.  I don’t know why.  I’ll move on.  I’ll have more cases and more wins and losses. But they won’t. And it hurts me to see that.

There’s a reason I don’t do criminal law any more or divorces.  It just hurts too much when I lose those cases.It’s one thing to tell client that they need to pay money, even a lot of money; but it’s another thing to tell them they’re losing their child or going to have to go to prison or jail.

Litigation is a lot like playing cornerback in football—a bad short-term memory (so the losses don’t keep you from doing your best next time out) and a good long-term memory so I am always learning.  There’s a reason they call it the “practice” of law:  you can always do better.  So I just always do my best.  No excuses, no exceptions.

People ask me sometimes what my win-loss record is.  To be frank, I really don’t know.  Part of the problem is figuring out what a “win” really is.  A good settlement?  A win in court where the client doesn’t get all they want?  I have the same problem figuring out what a “loss” is.  Sometimes what I call a “win” the client calls a “loss” and vice versa.

Litigation is not for the brittle.

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Yes, Kaufman Law does do consultations before being hired.  In fact, we require these consultations to be sure that a) your legal problem is a problem that we are interested in and competent to handle and b) that we can work together as a team to resolve your legal problem.  Generally these consultations are 60-90 minutes long but sometimes are longer.  But, these consultations are not free.  Instead, there is a fixed fee charged for the consultation, one which is significantly less than Kaufman’s hourly rate.  If you decide not to go forward with Kaufman Law, that is all you will have to pay.  If you do decide to hire Kaufman Law, you will receive a credit on your first invoice equal to the consultation charge, rendering the consultation “free.”

One thing more to note:  when you make an appointment we will ask you for your credit card.  If you do not appear for your appointment and do not cancel it, you will be charged the full consultation fee.  If you cancel the appointment more than 48 hours in advance, there will be no charge at all.  If you cancel with more than 24, but less than 48, hours notice, you will be charged half the consultation fee.  Any cancellation with less than 24 hours notice will be treated as if you failed to cancel and you will be charged the full consultation fee.  We regret having to do this but recently there have been many inquiries and appointments made with the potential client simply not appearing.  This behavior costs Kaufman Law and its clients because preparing for a meeting with a potential new client takes time-time which could be better used taking care of our existing clients.

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What is Pro Bono Work/Why Won’t An Attorney Take My Case For Free?

A potential client was very upset and offended today when I told him I would not handle his case “pro bono.”  While I felt bad about the predicament the client was in, the case was not one where pro bono service was appropriate.

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Do I Tell A Client S/he Has “No Case”?

Rarely.  Usually the client has been wronged but it would be very costly to litigate the case and the recoverable damages are low relative to the cost of the litigation.  So Ms Client, if you hear a lawyer tell you that you have “no case” ask questions.  Like:

  •  Are you telling me it would cost too much to pursue?  Why are you saying that?
  • Are you telling me that it’s a bad fit for your office?  Why?
  • Might other lawyers be interested in this case?  Do you now any of them?
  • Are you telling me that there are problems of proof in the case?

I do sometimes do commercial litigation on a contingency fee. But, also, I do tell potential clients that I’d be happy to take their case if they paid an hourly fee, but that the damages are not high enough, or liability is too speculative, or the defendant is insufficiently credit-worthy for me to take it on a contingency.

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Mistakes of Do It Yourselfers

Not too long ago a few attorneys & I got together and created the following list of mistakes Do It Yourselfers make.

  • Not funding the trust
  • Not signing any of the documents
  • Incorrectly executing or signing the documents
  • Failure to get a HIPAA release
  • Omitting key provisions (e.g.,naming executor or guardian for children, no residuary clause)
  • attempting to devise property that passes by law
  • not taking into account statutory allowances or homestead provisions;
  • including “boilerplate” A/B trust provisions, without understanding what they mean
  • making retirement benefits payable to a trust that does not qualify as a ‘designated beneficiary’
  • having the will witnessed, but not self-proved (not fatal, but a PITA)
  • Failure to plan for special needs beneficiaries;
  • Amending the documents improperly
  • Not enough witnesses on documents.
  • Documents don’t contain proper attestation or notary clauses
  • Documents witnessed by impermissable persons.
  • Will witnessed by beneficiary ( whoops, Will is OK but you don’t get anything).
  • Not distributing copies appropriately
  • Making irrevocable decisions which completely kill medicaid eligibility,without having LTCI or an appropriate plan
  • Never funding a Trust
  • Never sending Crummey letters

Other major issues:

  • thinking a Will will avoid probate or taxes
  • thinking that naming a guardian for children will prevent their other biological parent from getting custody
  • thinking a revocable living trust protects assets from the grantor’s creditors
  • Not updating the trust for decades.
  • Not updating the estate plan when major life changes occur
  • Never understanding why you need a Trust
  • Never asking questions so you understand what you have, why you need it, and how to properly implement it.  If you aren’t sure, ask again.
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Mistakes of Do It Yourselfers – Incorporation/LLC

Not too long ago a few attorneys and I got together and created the following list of mistakes Do It Yourselfers make.


    1.       Not doing a name check or reservation (website is not real time)

    2.       No organizational meeting & minutes

    3.       Not keeping up with annual meeting minutes and resolutions

    4.       Not filing 25102(f) securities exemption (when necessary)

    5.       Not filing Statement of Information on a timely basis (very minor filing, very major consequences)

    6.       Not maintaining active corporate statute

    7.       No treating the Company as a separate entity (commingling funds, etc.)

    8.       Never issuing stock certificates (much less making the appropriate filings).

    9.       Borrowing money from shareholders without issuing a promissory note or drafting appropriate corporate resolutions.

    10.   Not assigning intangible assets to the entity.

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What Do You Do If Husband And Wife Both Retain You?

What do you do if husband and wife both retain you, pay a nice deposit and then separate, file for divorce and demand the money back?

Well, most people would tell me to give the money back.  OK.  But to whom? They are not together any more.  So I should split the retainer 50/50?  Not necessarily.  The liquid asset in my Trust Account is now an asset that has to be divided by the Court in the divorce proceeding.  I don’t do family law but I’ve learned that a) I now have a conflict of interest between 2 clients; b) there may be a Court Order controlling this that I don’t know about; and c) they could change their minds at any time.

My solution:  deposit the money with the Clerk of the Court for the Divorce Court to divide as it sees fit.  Alternatively, after depositing the money with the Court, I would file what is called an “Interpleader” and ask the court to tell me what to do with the money and how much, if any, I can be paid.

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Do Cops Get It Wrong?

Absolutely.  I won’t go into all the conscious and unconscious biases cops have.  (But if you Google “witness lineup issues” or read Balko’s blog in the Washington Post you can see a lot of it.)  But what about when there is an after-the fact investigation and a police report prepared?

Mounted policeman at Jefferson Memorial

(Photo credit:

First off, since the cop did not witness the incident, s/he will have to rely upon witness’s statements and/or other physical evidence at the scene.  Sometimes the officer will make a drawing or take photographs, but not every case gets the full CSI/NCIS treatment.  And sometimes there is no “Abby” to figure out that they got it wrong.

So how do you know if the cop got it wrong?  Look at the elements of your case, consider all other factors, and how the facts would support your claims.  What other witnesses are there?  Are there alternative explanations?  What incentives/motivations of the various witnesses are there that could explain the witness statements.  Check into external factors (cell phone usage, alcohol/drugs, other distractions, etc.).

Don’t forget to examine the improbable.  I had a case once in DC where there was an accident in which both drivers SWORE they had a green light.  I *knew* they both couldn’t be correct.  But ….  It turns out that one of the lights had been hit by a car a few days earlier and rotated 90 degrees.  So it *looked* like both had a green light.  Everyone, including the police, *knew* that they couldn’t both be right but they were.

Good case for me too against the city.

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Are Laws Limiting Magazine Capacity To 10 Rounds Constitutional?

A federal district court has refused to issue a preliminary injunction blocking Sunnyvale, California’s ban on magazines with more than 10 rounds. (Fyock v. City of Sunnyvale (N.D. Cal. Mar. 5, 2014).) A large part of the court’s rationale was that “a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,” and I think that’s both correct and legally relevant.

The full article is here:

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