Handel Was Wrong! (And might have screwed up someone's life.)

Like anyone, I occasionally have to drive places, and like anyone, I occasionally get tired of listening to sports talk radio and see what else might be on. That's how, this past Sunday, I came to be listening to "Handle On The Law," an am-talk radio show that airs at a variety of times on stations.

And that's how I came to hear Handel give a major piece of misinformation -- or potential misinformation-- to a caller who asked a question I deal with every day: Is a short sale or foreclosure better?

The called called up, got Handel on the phone, and asked just that: "Is a short sale or foreclosure better?" Handel then mentioned some possible tax issues with a short sale but decided that a short sale was better than foreclosure.

That's what he told her.

And it literally took less time for that call than for me to type it up.

Here's the problem with what happened as I listened in surprise:

First, Handel had no information. NONE. Not a single bit of information. He didn't know what type of property it was, how long the woman had held it, who else lived in it, whether she had tenants or if it was a residence... nothing. Nada. Zip. Zilch. (With me so far?)

He didn't know what state she lived in. He didn't know what her income situation was. He didn't know what her credit situation was. He didn't know anything.

Second, Handel purports to give advice -- he says so himself, right on his website:

Bill definitely knows his way around our wacky American legal system, and with a quick wit and razor sharp tongue, offers up advice to countless callers on a weekly basis... [Says Bill]:
"Handel on the Law began broadcasting in 1985. I enjoy it more today than the day I started. Abusing callers, giving marginal legal advice and telling callers where to go is still probably the most enjoyable thing I do other than having intimate moments with my wife...No...It is the most enjoyable thing I do."

Calling it "marginal" doesn't make it okay, and I'm not aware of a single state that lets you practice law in that state without being admitted to the bar. Some states make giving legal advice without being admitted to the bar a criminal matter. Handel doesn't claim he's providing entertainment, or some such: He specifically says that he gives advice to people.

So he gave that woman advice on her legal issue without knowing anything about her, and without knowing whether he could legally practice law in that state.

Third, what are Handel's qualifications to advise anyone on short sale vs. foreclosure? His website says that he was #1 in the morning drive-time radio... and that he "provided legal counsel for several hundred cases of third party reproduction." He has also, according to his site, gotten a law degree and "been an adjunct professor of Law at Whittier College School of Law where he taught "Legal Aspects of Reproduction Technology."

All of which doesn't tell you anything about his knowledge of foreclosures vs. short sale, and he may have greatly, greatly harmed that woman who called in: A short sale, getting the lender to agree to accept as full satisfaction of a debt whatever amount a buyer is offering, might have serious tax consequences for the woman. A short sale might force the woman to pay a commission or closing costs, reducing the amount of money the lender will get and thereby increasing the tax consequences. Agreeing to a short sale might also deprive the woman of any legal or equitable defenses to a foreclosure that she might have, defenses that can limit or defeat a foreclosure entirely. She would get to live in or use the property pending foreclosures in some cases. And that's all not considering whether she would be eligible for one of the federal programs to help modify loans, or any comparable in-house or state programs.

Handel doesn't purport to offer entertainment; he claims to offer advice, and his advice in this situation was negligent and may well have been malpractice.

If you want to listen the radio, try Dan Patrick. If you want legal advice, call a real lawyer, not some radio huckster who'll screw up your case and play it for laughs.

payments that the lender will get

Even grandfather clocks can go high-tech.

That is a grandfather clock.

Incredible, isn't it? We've got a grandfather clock in our house, one that needs to be repaired, and I was looking around for someplace that could fix up our old one when I stumbled across the grandfather clocks for sale at 1-800-4clocks -- clocks that include the one above, the "Howard Miller Tempo Grandfather Clock."

I like clocks - -interesting ones, at least, and I've always had a special love of grandfather clocks, since I was a kid and our family bought one. I like the way they look, I like the chimes, I like the complexity and grandeur.

But more than that, I love the way that Tempo clock looks -- completely different than a traditional grandfather clock, something that takes the old idea of counterweights and chimes and moves it into a design that wouldn't look out of place in an office... or a space station.

A grandfather clock can be a centerpiece of your living room -- as ours is -- or a focal point for your office waiting room, like that Tempo clock would be, or an addition to the study you're putting into that extra room downstairs. They can even be great wedding or housewarming gifts (as the 1-800-4clocks blog pointed out) -- and as that blog noted can be engraved or personalized with the names and dates of the wedding

That's because they're interesting,and special and unique -- the perfect accoutrement to any room, or occasion.

I've abandoned my plans to fix up our old clock, now: I want that Tempo clock. And not for the office, either: I'm going to replace our old living room grandfather clock with that one and really jazz up the ol' house.

Can you UNcause something to happen?

Lawyers aren't always entitled to believe their clients.

That's the thought I had after reading Brophy v. Mei, a Milwaukee County case recently decided by the Court of Appeals.

In Brophy, the plaintiff, Timothy Brophy, was a landlord sued by his tenants in a class-action suit. After trying to hire several lawyers, he hit on Daniel Mei and Mei & Associates, meeting with them on May 17, 2006 to hire them to defend the lawsuit.

At that meeting, Brophy said he told his lawyers he'd been served about thirty days before the meeting but couldn't recall the exact date. The lawyers, though, said that Brophy had given them the exact date and that based on the exact date, an answer was due on May 24, 2006 -- so that's when they filed the answer.

In reality, Brophy had been served April 4, 2006, making his answer likely due on April 24 (but certainly no later than May 18). The untimely answer meant that Brophy was in default, and a motion for default judgment was filed against him.

Brophy claimed later that Mei & Associates didn't try to defend that default judgment at all, but that doesn't seem to be true; court records show that they at least argued the case. The default as to liability left only class certification and damages as issues in the case.

The Mei firm then withdrew from representing Brophy, and Brophy hired a new attorney. Somewhere along the way, Brophy was served with requests for admission, but he never answered those, so damages were now fixed, too, and Brophy opted ultimately to settle with the class-action plaintiffs. (The underlying lawsuit dealt with issues of security deposits and building code violations.)

Brophy then sued Mei & Associates for malpractice. Mei defended the case and on summary judgment, argued that Brophy needed an expert witness to prove they did something wrong.

The trial court, and the Court of Appeals, agreed: Brophy had not hired an expert witness, and because of that, he couldn't prove that Mei had committed malpractice.

Brophy's argument was simple: Mei, he said, missed a deadline, and in Brophy's view, missing a deadline doesn't require any expertise to analyze. Since expert testimony is only required when a layperson wouldn't be able to understand the issues, Brophy felt he shouldn't have to have an expert witness say Mei committed malpractice by not filing an answer in a timely manner.

As I said, the courts disagreed, and found the issue to be not whether Mei had messed up by filing a late answer, but instead, what a reasonable lawyer would have done when confronted with an unclear date of service.

That's kind of a crucial point in this case, one that gets glossed over: Brophy's testimony was that he'd told the firm he'd been served about 30 days before their meeting. The firm testified that Brophy gave them an exact date.

The Court of Appeals found that discrepancy in facts to be unimportant (or, in the Court's unique phrasing, "lack[ing] the element of genuineness.") Instead, the Court said the issue is "what a reasonable attorney would do when faced with a client's representation as to the timing of service."

The Court seems to have decided, by phrasing the issue that way, one of two things: Having said that the discrepancy in facts was not genuine (a novel standard for this kind of case), the Court must then had construed (as summary judgment requires) the facts in Brophy's favor -- which means that the Court must have decided that Brophy testified that he'd been served about thirty days before the meeting with Mei.

Which, in turn, means that the Court should have held something other than what it did. If Brophy was served thirty days before meeting with Mei, he was either already 10 days late on his answer, or he had fifteen days left to answer. It's more likely that the time had expired: Section 802.06 gives either 20 days, or 45 days, to answer. A defendant only gets 45 days if a defendant is an insurance company, which wasn't the situation in the case against Brophy. (But Brophy may have had 45 days; I routinely give 45 days to answer in the summonses I file.)

If Brophy was already late, then the almost the only thing Mei could do is file a motion to enlarge the time to file an answer: filing an answer alone would probably be insufficient (although, I'll say, I've done that on occasion for a client who got to me too late: I've filed an answer and waited to see if the other side challenged it before filing the motion to enlarge time. If they don't challenge it, they may be waiving their right to do so.)

If Brophy wasn't late yet -- if the summons gave him 45 days, then Mei filed an answer in a timely manner, doing so on May 24, which would be within 45 days of when Brophy recalled being served.

The Court of Appeals didn't say that one or the other version of events was accurate-- that's an issue of fact not determinable on summary judgment. Instead, the Court set up the issue as "determining what lawyers do when their information about the timing of service."

(The complaint's notation as to the date of service was illegible, something that occurs more often than you'd expect.)

I can tell you what I do in such a case: I file an answer that day. But that's not what every lawyer does. That's just what I do. If you are a client of mine and you call me and you tell me that you got served but you're not sure what day you got served, I'm going to file an answer that very day, just to be on the safe side.




That's not my only option: I could call the opposing party and find out when the client was served... if they know. If you call my office, I probably won't know when your client was served, without going and getting the file and looking. I calendar when answers are due, but not the date of service, as a general rule. I also may not be able to take your call right away.

You could try to call the process server... if you know who it is, and if you can get a hold of them and they have the information available.

But taking extra steps to determine when a client was served means that you don't know when a client was served -- that either your client doesn't remember and you've got no records to look at, or you don't believe your client for some reason.

And that's not what Mei said in this case: Mei said they did know when the client was served. Mei's testimony was (apparently) that based on what Brophy told them, they did know when the client was served and calculated an answer date of May 24 and filed their answer that day.

The Court of Appeals then set up the question based on that -- saying that a reasonable attorney could do more than one thing when a client gives them a date certain as to the date of service. "at issue is Mei & Associates' reliance on Brophy's recollection as to service."

In other words, was it malpractice for Mei to believe their client? The Court of Appeals didn't decide that: that was the question, but the question couldn't be answered because Brophy didn't have an expert to say whether it was reasonable for Mei to believe his client.

That won't surprise any lawyers reading this, either: Clients are often not reliable sources for information that may be critical to the case -- because they're not writing down dates and they don't know what's important when it's happening to them. When a sheriff comes to the door and serves them papers, clients don't know, at that point, that who is serving them, the date they're served, and the way they're served (as well as how many times someone's tried to serve them) might be important. What they know is they've just been sued.

So any experienced lawyer measures what his or her client tells him or her against other evidence and information available: looking at the calendar to determine whether the day a client says he was served was a reasonable day to be served, looking at the filing date of the complaint (I once had a client tell me she was served on a date that turned out to be two days before the complaint was actually filed), checking with opposing counsel, if there's time, and taking other steps to make sure that the date your client believes something happened is the date that something actually happened.

The Court of Appeals, and the Circuit Court, were right to require an expert witness to say what Mei should have done, given that Brophy's recollection had him in default already, while their own recollection said they were well within the limits. Without having sat through that client interview, I can't say what I would have done -- so no juror could have said that Mei screwed up.

That decision should probably have been the end of the case -- but the Court went on to decide that Brophy couldn't have won anyway because, it said, he didn't prove causation.

Malpractice is only malpractice if it causes the damages; no matter how badly a lawyer might mess up, if the client would have lost anyway, there's no malpractice there. In Brophy's case, assuming that Mei did mess up in the answer deadline, that still left damages to be assessed, and apparently Brophy could have greatly reduced (or possibly eliminated) the total damages claimed against him: so he might have been found to have violated the law, but not owe any money.

Only Brophy didn't answer those requests for admissions -- so damages were assessed against him and he was forced to settle. Brophy claimed that the requests were moot by the fact that he hadn't answered (with Mei claiming that the answer, to be factually correct, would have had to admit at least some liability [on that note, I had to chuckle -- I can't recall a time I've seen an answer admit some liability, even when the answer should do so. I've seen, in fact, answers that deny everything up to and including the identities of the plaintiff. So I chuckled, and I wondered if the answer that Mei filed actually did admit some liability. I'm guessing -- guessing -- that it didn't]

That failure to answer doomed his claim against Mei, because Brophy couldn't prove Mei caused the damages, the Court of Appeals said.

I think the Court got it half-right, in that analysis: The Court was probably right, but didn't get to that answer the proper way, and the proper way probably required a trial.

The Court's analysis of whether Brophy could win against Mei after failing to answer the requests wasn't a question of causation at all. Mei had filed an answer untimely, resulting in a default on liability and setting the stage for a hearing on damages. Brophy correctly pointed out that losing some legal rights is harm in and of itself.

So the question becomes what harm did Mei's act actually cause (if any). The Court said that Brophy couldn't prove Mei's act harmed him, at all, because Brophy had failed to answer the requests for admission, thereby admitting the amount of damages and giving up the fight.

That analysis doesn't quite jibe, because Brophy wouldn't have to prove that Mei's actions were the only cause of his damages, but just a substantial cause of his damages.


Instead, the Courts should have analyzed the case in one of two other ways.

One way to look at Brophy's failure to answer the requests was to ask whether that was really a kind of superceding cause. A superceding cause -- or intervening act -- can relieve a party of the consequences of negligence. Stewart v. Wulf, 85 Wis.2d 461, 475, 271 N.W.2d 79, 85 (1978). To qualify as such, the intervening act must actively cause harm after the first negligence. There are some qualifications to the protection an intervening act can provide -- for instance, if the act is one that the original tortfeasor could have foreseen, it won't eliminate liability -- but otherwise, an intervening negligent act is one that eliminates liability from the first negligent actor and puts it all on the second negligent actor.

Intervening act isn't a perfect analysis in this case -- because it's not a third party acting, but Brophy -- but it's one way to look at Brophy v. Mei, a way to look at it that the Courts didn't seem to use.

The other way to look at Brophy v. Mei is comparative negligence, a simple analysis that asks whether Brophy, or Mei, was more negligent in producing any harm to Brophy. If Brophy is more negligent than Mei, then Brophy can't collect any damages (even if Mei was negligent.)

The trouble with both of those approaches is they probably require a trial, not summary judgment: comparative negligence is almost impossible to determine on affidavits, and the intervening act analysis is pretty fact-intensive.

Instead of remanding to determine whether Mei had demonstrated that Brophy's failure to answer was an intervening act absolving any prior negligence, or to hold a trial on who was more negligent here, the Court simply held that Brophy's failure to answer requests meant, as a matter of law, that Mei hadn't caused any harm -- that all the harm was caused by Brophy.

Which doesn't make any sense: I mean no disservice to Mei (I don't actually think they did anything wrong here, for a variety of reasons) but if Mei answered late, then, under Wisconsin law, Mei per se cost his client some rights, and under Hennekens v. Hoerl, 160 Wis.2d 144, that's damage: So Mei caused damage to his client. Was that damage uncaused by Brophy's failure to answer the requests? Uncausation isn't a legal theory I've ever heard of (and something that can't happen, absent Superman reversing the Earth's spin) -- just as I've never heard of genuineness being a standard on summary judgment.

Intervening act and comparative negligence are rules that are well-recognized in Wisconsin, as is the maxim that Courts shouldn't decide issues that aren't necessary in the case. Having (correctly) determined that Brophy needed an expert witness to prove his case, the Court should have stopped there. But if they were determined to go on, they should have at least gone on in a way Wisconsin recognized, instead of carving out a (thankfully unpublished) exception to the rule of causation.

Don't take chances with mesothelioma.

Mesothelioma is a scary word, and for a good reason: Mesothelioma is a scary disease.

Mesothelioma is a rare cancer that affects the lining of your internal organs, mostly the lungs but also on the heart or other organs. It's almost always caused by exposure to asbestos, generally from people who have been exposed directly to asbestos on the job site, or indirectly to asbestos from being around someone who works on a job site (some people think that just washing clothes with asbestos dust on them can be enough exposure to put someone at risk.)

Mesothelioma can begin with shortness of breath or chest pain, go on to cause weight loss, and end up getting more and more serious-- fatigue, and coughing up blood are common -- and treatment doesn't do a lot. The prognosis for survival of mesothelioma is extremely poor.

Because of how it's caused, mesothelioma may affect people in the lower earning bracket, having a devastating effect on the person and their family: many sufferers may not have health insurance or life insurance and may not have much in the way of savings or retirement funds if they die.

Those economic issues make it important that anyone suffering from mesothelioma, or anyone who may have been exposed to asbestos, consult a physician and an experienced lawyer right away: the doctor can help detect any problems and attack them early on, and the lawyer can help get compensation to avoid economic ruin.

Whether you're looking for a Florida Mesothelioma Lawyer or other experienced counsel in other states, make sure that you act now, before it's too late.

Wisconsin's Department Of Consumer Protection Was Probably Too Busy Regulating Chicken McNuggets To Piggyback Onto This Suit.

In the news today, Lifelock has agreed to settle claims brought by the Federal Trade Commission and 34 state attorneys general. The feds and states alleged that Lifelock misrepresented its ability to protect your credit, in particular because Lifelock's services (the suit said) couldn't help prevent fraud on existing accounts. (Lifelock also was alleged to not handle customer information in the way it promised, possibly placing your private information at risk.)

Lifelock agreed to pay $12 million to settle the case. You probably won't get any of that: $11 million goes to the FTC, and $1 million will be split among the states.

Wisconsin didn't bother going after Lifelock -- possibly because the agency (DATCP) and legislators who oversee it are openly dismissive of consumer protection -- so you Wisconsinites wouldn't have gotten any money anyway. (I don't know why Wisconsin didn't join in to the suit; they could've just copied the pleadings, jumped in there like the other states, and gotten some money from Lifelock for doing very little work. Isn't that the definition of government?)

If you did buy into Lifelock, you may still have a remedy: Section 100.18, one of my personal favorite statutes, would let you bring a claim if Lifelock falsely represented what they could do, and you'd be entitled to get your money back plus your attorney's fees. While nothing's guaranteed in this life (other than the guarantee that DATCP won't do much to help you as an individual), it seems likely you'd win, given that deceptive practices are exactly what the feds, and 34 states -- but not Wisconsin -- have alleged Lifelock did.

In fact, beyond the section 100.18 remedy, you may even be able to sue for three times your losses (plus attorney's fees), as Wisconsin provides a triple-damages remedy for victims of certain kinds of identity theft or mishandling of personally-identifiable information (via section 895.446, Wis. Stats.)

Equally important: Why did you buy Lifelock in the first place? They wouldn't do anything you couldn't do, for free, by accessing your free credit reports annually at annualcreditreport.com.

Annualcreditreport.com is the government run website that lets you access a free credit report, once a year, from each of the major credit bureaus. All you have to do is go get one every four months, and you'll be constantly monitoring your credit for nothing. So go today and get Trans Union's report. Then, in July, get Equifax's, for free. Then, in November, get Experian's. Then, next March, start over with Trans Union's.

There you go: In one blog entry, I've given you two different remedies for identity theft, and a way to avoid having it happen in the first place, all for free.

If wasting time and energy is your thing, you're probably a teenager in my house.

Coming this summer, in Wisconsin, you'll need to have auto insurance. Pretty soon, if ObamaCare passes, you'll be required to have health insurance. And, of course, you want homeowners' or renter's insurance, and you probably need business insurance, too, so you'd better get on the ball and start calling different insurance companies and agents, giving them all your information, waiting to hear back from them, and then comparing their quotes and coverages and making a final decision on what policy to buy.

That'll take you a couple of hours, or days, to get the work done, if not months, so get cracking!

Or, do it the easy way, using one of the online services like Netquote.com, where all you have to do is enter some basic information and you get referrals and quotes instantly.

Say you want some Mississippi insurance. You go to Netquote.com, type in your zip code, answer some basic questions, and within a minute you've got names, addresses, and even click-through links to find the insurance you need at a good price.

So I'd say use one of those -- but don't let me dissuade you from making all those phone calls, if wasting time and energy is your thing.

What's my case worth? Debt Collection Edition

First, an aside -- I got a call from Mr. Michaud, of the Rsidue Michaud, but I miscopied down the number you left; would you give me a call again, Mr. Michaud? I'd like to talk with you.

Now, on to the bigger stuff. What's the best way to get a six-figure jury verdict in your favor on an FDCPA case? Don't have the other side show up. As Homer Simpson said: "The two sweetest words in the English language: De-fault."

A Dallas jury in the case of Midland Funding v. Crystal Snow was asked to determine damages on a counterclaim in which Ms. Snow claimed that Midland had caused her phone to ring repeatedly, tried to collect a debt which wasn't owed, and otherwise harassed her in violation of the FDCPA. It seems Midland didn't bother showing up at trial, and the jury awarded:

$250 for actual damages other than mental anguish.

$100,000 for mental anguish.

and

"8.0 million dollars" in punitive damages.

I'm trying to find more facts on this case -- but you can read what is apparently the jury's "charge" (special verdict) here.