Double Vision--Seeing What Really Matters

Double Vision—Seeing What Really Matters

If you had to identify some of life’s greatest gifts, other than your faith, what would they be?

Two different stories, with two different people, and two very different circumstances, give us a big clue.

One of the organizations in our area which deals with the aging population does so with such kindness, and special insight too.  It deals with seniors suffering through the ravages of dementia in all of its forms.  But it sees past the loss of a mind that once was to what remains in the core of us all.  A sort of double vision which sees the character of every life.

An old gentleman who had a successful career had severe dementia.  His up-from-nothing story was built on a core of hard work, but without that double vision the blank stare and jumbled words he spoke would not have shown you more.

This organization had a day care set up where families could bring a loved one for a few hours a day to give the family members time to deal with the rest of life beyond the care of their loved one.  The gentleman would come in for a few days a week, and he was given a job to do, which he did with as much effort as he could bring to bear.  It clearly mattered to him that as someone who had known nothing but hard work he was doing something, although that something was only hazily understood.

When he left for the day, he was given a $10 bill and he was thanked for what he had done, and the value of what he had rendered to the organization. 

When he returned the next time, his care giver, unknown to him, returned that $10 bill to the care center after this senior had begun his assigned task.  And life’s most important transaction, the validation of another human being, began anew.

My wife and I attended a funeral recently.  The loved one, my wife’s aunt, had passed away. She and her husband, who had died years before, had lived on a farm.  One of the pallbearers was a nephew, who had gotten an education and moved away from that sweet, country place.  When the nephew was a very young boy, he would come to the farm and visit.  His kindly uncle would dote on the nephew, telling him he couldn’t milk the cows and look after the place without him.  He would talk to him on the phone from time to time to ask him when he was coming because he needed him to keep up the place. All the while building up his good sense of himself.

That kind farmer, not sophisticated in the ways of the world, had double vision too.  And when the life stories are told about this wonderful farmer, this story is always one of them.

We spend an awful lot of time in our careers chasing the people we think matter most in what we perceive is the pecking order of life.  There is not much we are going to do about that.

But what we should do better is value all people, even the ones who do not advance our careers. 

William James, the noted psychologist, said: “The deepest principle of Human Nature is the craving to be appreciated”.

As a young lawyer, I observed that the most successful courthouse lawyers were the ones who authentically engaged everyone.  From the lowliest clerk and courtroom deputy to the servers at the restaurant across the street from the courthouse where the courthouse lawyers gathered.  They knew their names and their stories, too.

What I’ve learned about life on the way to the courthouse is this:  Value everyone, and recognize that the sense of being wanted and valued is at the very core of every human being.  Learn to have that double vision that sees past the facts of a particular situation and find the sight line to the dignity in us all.

POSTSCRIPT  Allen Joines, our mayor and head of the Alliance, and Gayle Anderson, head of the Chamber of Commerce, wrote a letter to the editor recently that summarized many of the exciting objective signs of progress in our community in 2011.  Please check it out.  Very encouraging.   

http://www2.journalnow.com/news/opinion/2011/dec/13/wsopin01-the-readers-forum-tuesday-letters-ar-1706394/

Mike Wells 

What is a Prayer For Judgment Continued?

One of the frequent questions I get on my public service legal call-in show on Tuesday mornings, and in my frequent lectures on the law, is the mystical sounding Prayer For Judgment Continued, or PJC.  What, exactly, is a PJC? 

A prayer for judgment continued, sometimes called a PJC, is an entry granted by the Judge, it is not a decision made by the Prosecutor.  “What is it, exactly?”

 A PJC is a resolution sometimes granted by a judge to resolve a matter. It is most often used for motor vehicle offenses. It is a disposition, but it is not a final judgment (unless there is a fine levied as well), with no insurance or driver’s license implications, except under limited circumstances.  The Judge uses his or her discretion to grant a PJC and there are usually mitigating circumstances where the defendant is deserving of a break.

PJC's are not allowed in certain excessive motor vehicle violations such as speeding well in excess of the posted speed limit or passing a stopped school bus.

There is no insurance premium surcharge, nor any assessment of points, for one PJC during a three year period, per insurance household.

If someone receives another PJC within the 3 year period after the PJC provision has been used, it may help regarding driver’s license implications but not for insurance implications.

Traffic laws are on the books to protect you, your family, and others. Speeding in excess of posted limits is the single greatest cause of personal injury and death on our highways. Being a fast driver and wearing it as a badge of honor is no honor at all, and you put every citizen in your path at risk when you violate the law. Obey the law and you will never have to worry about PJC’s.

This information is provided as a public service and it should not be relied upon without first consulting your attorney.  No attorney-client privilege is established with Wells Jenkins by the furnishing of this information.

Keeping Old Tax Records

How long should you keep old tax records?  Some CPAs suggest you keep tax returns forever, but you should keep the backup records until seven years after you have disposed of an asset. For example, you may buy real estate. You should keep your records until sevel years after you sell it.

This information is provided as a public service.  It should not be relied upon without first consulting with your tax professional or your attorney.  No attorney-client relationship is created by the furnishing of this information.

What is your duty of care to people who come on your property?

What is your duty of care to people who come on your property?  What if someone gets hurt while on your property?

It depends on how they got on your property in the first place.

Generally, you have a duty as a homeowner to exercise reasonable care in the maintenance of your property for the protection of lawful visitors.  If you know you have a loose brick on the steps leading to your front door which may not be obvious to another person, and a lawful visitor turns their ankle because the brick pops out, you could be held liable. 

There are a number of rules and issues with variations of this general framework: slip and fall and trip and fall cases, dog attacks, and others. The standards of care, set forth in case law and statutes, vary and really depend on a number of factors.

A common situation is when a person who is not a trespasser has a lawful reason to come to your home and they fall on ice.  Generally, you do not have a duty to warn a lawful visitor of an obviously unsafe condition, or an unsafe condition of which a lawful visitor has as much knowledge as you do.

Another common fact pattern involves someone who slips and falls and is injured at your business.  Not only does the injured party have to show you are at fault, but the injured party cannot be guilty of contributory negligence.  Put another way, if you are at fault, generally, and the injured party is at fault, too, you are not liable.

North Carolina is one of only a few states that still have a contributory negligence, not a comparative negligence, standard for injured parties. Wherever those injuries occur, although there are some limited exceptions.

What about our duty to trespassers?  The laws on this changed on October 1, 2011.

Generally, if you are in lawful possession of land, either as an owner, a tenant, or otherwise, you do not owe a duty of care to a trespasser. There are three main exceptions.

1. You are guilty of willful or wanton conduct, or you intentionally caused harm to a trespasser, except that you may use reasonable force to repel a trespasser who has entered the land or a building with the intent to commit a crime.

2. You knew children were likely to trespass at the location where there was a dangerous condition, you knew or should have known the children would be at an unreasonable risk of serious injury or death, the children did not discover the condition, you could have eliminated the danger easily, you did not do so, and a child gets hurt as a result.

3. If you discovered the trespasser in a position of peril or helplessness on the property and you failed to exercise ordinary care not to injure the trespasser.

There are various other definitions and rules in North Carolina General Statute Chapter 38B-1, and following.

Years ago I had a client who knew kids were racing their four wheelers down an old logging road on his property.  The owner got mad and put up a chain across the road which could not be seen at night.  A teenager got hurt when his four wheeler hit the chain and it threw him.  This was a problem, even under the old law.

When in doubt, assume the higher duty of care. Talk about potential problems with your insurance company and your lawyer. And consider purchasing an all-risk umbrella policy, in case you have a very serious injury on your property.

NOTE; This information is provided as a public service.  It is not legal advice.  Any legal questions should be discussed with your lawyer.  No attorney-client relationship is created with anyone as a result of this information.

Interesting information about Expungement rules in North Carolina

I get a lot of calls about expungement on You and the Law, my public service legal call-in show on Tuesday mornings on WSJS, 600 AM.

Here is a quick summary of the law.

The law governing expungement is completely  statutory, which is found in Chapter 15A of the North Carolina General Statutes, largely covered in GS 15A-145 and 146. These statutory provisions are provided by most library branches around the state.

You cannot generally get an expungement for a felony conviction, unless that felony has been later dismissed or you receive a pardon.  If you have been indicted on a felony charge and that charge is dismissed or you are found not guilty, you can get the charge expunged from the record, if you have not had another matter expunged.

The expungement laws mainly cover misdemeanors other than traffic violations.  There are various specific provisions for young offenders, certain drug offienses, and others.  Generally, you are limited to one expungement.

There are a number of technical and substantive requirements, including being of otherwise good behavior for two years, among others.

If a charge or conviction is expunged, it effectively takes the misdemeanor or charge off the public record, except for certain law enforcement personnel and the court.

If a matter is expunged, you can state honestly, as the statute specifically recites, that you have not been charged or convicted. Only in rare circumstances must you disclose the charge, such as when you apply to take the bar examination to become a North Carolina lawyer.

Expungement law is very technical and complicated, and any attempt to have a charge expunged should be handled by an attorney.

This general summary of expungement law is just that: a general summary of the main provisions.  There are lots of specific exceptions.  So this summary should not be taken as legal advice on which you can relay.  And no attorney-client relationship is established by providing this general information as a public service.

Interesting laws to you and your family

I receive a lot of interesting calls on my public-service legal call-in show, "You and the Law," on WSJS 600 AM on Tuesday mornings from 9:00 am until 10:00 am.  One recent call concerned matters important to many of us.

What is your duty to someone who comes onto your property?

As homeowners we have a duty to exercise reaonsable care in the maintenance of our property for the protection of lawful visitors.

If you know you have a loose brick on the steps to your front door, and a visitor turns their ankle because the brick pops out, you could be held liable.

What about someone entering your property without your knowledge?

A landowner need only refrain from the willful or wanton infliction of injury towards a trespasser.

What if you did not invite anyone to your property, but you know they are using it?

You can give implied permission to be on the land.  This may raise your standard of care to the reasonable care standard, rather than the "willful or wanton action" standard.

Years ago I had a client who knew kids were racing their four wheelers down an old logging road.  The owner got mad and put up a chain across the road which could not be seen at night.  A teenager got hurt when his four wheeler hit the chain and threw him.  This was a problem.

When in doubt, assume the higher duty of care. Talk about potential problems with your insuance company and your lawyer. And consider purchasing an all-risk umbrella policy.

This information is provided as a public service and should not be taken as legal advice upon which you should act without consulting your attorney.  No attorney-client relationship is created by providing this information.

Grads Sue New York Law School and Cooley Law, Saying They Inflated Job and Salary Stats - News - ABA Journal

Grads Sue New York Law School and Cooley Law, Saying They Inflated Job and Salary Stats - News - ABA Journal

11th Circuit Strikes Down Insurance Mandate in Health Care Law, Creating Circuit Split - News - ABA Journal

11th Circuit Strikes Down Insurance Mandate in Health Care Law, Creating Circuit Split - News - ABA Journal

'The Lincoln Lawyer' to be Adapted for Television - News - ABA Journal

'The Lincoln Lawyer' to be Adapted for Television - News - ABA Journal

Some interesting calls about the law from Attorney Mike Wells

      As the host of a weekly public service legal call-in show, I get a lot of questions about a lot of things.

      Here are a few from the last couple of weeks of matters which may be of interest to you:

      1. If you are an employer, do you have to pay overtime to your employees if they        work over 40 hours?  Generally, yes.  If you are a supervisor, or you have a special category carved out, such as for long haul truck drivers, the rules are different.

       2. Do you get points on your license in North Carolina if you are found responsible for a seat belt violation?  Generally, no, unless you are a provisional licensee (under 18).

3. If someone calls you and says you have won something, and to send them money for them to help you collect it, it is a scam.  No exceptions.

4. If you live in a development, you have a homeowners association, and some common maintenance items are not being cared for, take a look at your bylaws.  You likely have some legal clout to make something happen.

5. Rights of way which allow you to go over someone else’s property to get  to the public road?  Get it in writing.  Owners change, and so may permission to use that right of way.  Protect yourself.

If you have questions, call WSJS at 336 777-1600 from 9-10 am on Tuesday morning for You and the Law.  Or, go to our website at www.wellsjenkins.com and e-mail your question.

I hope you find this information helpful!

Cowboy Law: Playing to your strengths and away from your weaknesses

COWBOY LAW—Learning how to play to your strengths and away from your weaknesses.

It seemed doable to me.

My wife and I were building a small deck on the back of our house.  Our builder was a client with that easy country grace that is not valued as it should be. But with country frankness, too, that sometimes stung when it hit the mark.

Before I left for the office one early morning during the construction, I had outlined my idea of what the deck could look like, and what I hoped was possible. But my knowledge of what was possible was limited because I had virtually no skill at building anything with my hands. 

After I was gone, our builder friend said to my wife, in his courtly way: “Miss Janet, Mike Wells is the finest guy in the world, but he “cain’t” do nothing.”

Our entire family has laughed about this story for years.  It captured so fully our friend, and his distinctive way of saying things.  But mainly it hit a bull’s eye about me.

Will Rogers, who had an uncommon common sense, said: “We are all ignorant, just about different things.”

Part of the maturing process of life is recognizing there are a whole lot of things we do not know how to do well, or how to do at all.  Things we wish we could do, and things which many of our friends and contemporaries can do well, and sometimes very well. (And which bothers us, truth be told, more than we really like to admit.) 

But in time we learn the smart money bet is to define our lives by what we can do, and to worry little about what we cannot do well, even if we really worked at it. We should limit the impact of our weaknesses as we can, but let’s keep our eye on our advantages and not our disadvantages.

We are going to run into people to whom this truism does not seem to apply.  They are smart, witty, they are good at many things we usually value in society, they look good, and they seem to have a lot of success.

But the truth is, there are very few people like this, so don’t put them up on a pedestal.  Having it all together as you live your life is not always an advantage, anyway, and sometimes, ironically, it is a disadvantage.

Starting out as a young lawyer, I knew a lawyer a year older than me who seemed to every advantage.  He had played sports at a local college, he had a commanding physical presence, he was smart, and he had a nice way about him. People, and clients, seemed to be drawn to him. The hard path to building a good practice seemed much easier for him.

But he did not work very hard, and he did not prepare as he should have.

I had been co-counsel with him on a couple of matters. After a particularly tough hearing went well for our side, due to some hard background work and preparation, he got credit, even though he had nothing to do with it.  That was the trumping power of being a successful college athlete.

That charismatic lawyer faded out in time. In a very real sense, his strong persona, without a lot of apparent weaknesses, did him in, because he failed to value effort and hard work as he should have. 

As an old, old story tells us: does the tortoise really beat the hare in life?  All the time.  All the time.

What I’ve learned about life on the way to the courthouse is this:  we are all ignorant about an awful lot of things.  We have so many things we cannot do, or do well.  But what we all have in the same amount is: time, our potential to work hard, and our ability to play to our considerable strengths.  And that is the law that matters most of all. Our ignorance, and weaknesses, notwithstanding. 

Mike Wells

A Lawyer's Creation Story

He was just another young lawyer in a small firm in a small, tough, mountain town.  At least, that’s the way it started.

In time, however, he became a lawyer of great distinction nationally.  Over the broad reach of his distinguished career, he was revered by even his most ardent opponents as a lawyer’s lawyer.

John W. Davis was a lawyer who rose from obscurity and his small town roots in Clarksburg, West Virginia, to be the Solicitor General of the United States, a Democratic Nominee for President of the United States, an Ambassador to the Court of St. James’s, and, at one time, the lawyer who had argued more cases in the Supreme Court of the United States than nearly any lawyer in history.  The firm he built in New York 70 years ago, Davis Polk, still bears his name.

One might think a lawyer of this success must have had a brilliant mind.  But actually, he did not. The lawyers he defeated were often the most brilliant lawyers of his generation, but he bested them by more predictive, if pedestrian, values: hard work, a commitment to clarity, brevity (clarity’s first cousin), close reasoning, and a respect for all people. He had learned one of life’s greatest treasures which people of intelligence and strong pedigrees sometimes overlook:  you have a lot more success in life if people like you.

As a fierce advocate, one would think he was a man of fierce emotion, and that he could ignite the passion of those in the audience whom he sought to sway.  But his passion was of another kind.

In the rough and tumble days around the turn of the 20^th Century, Clarksburg, West Virginia, was a burgeoning industrial center of coal, oil, and gas interests.  Passions often flew, and John W. Davis was one who let them fly. He was once held in contempt for striking his opposing attorney in court.  On another occasion, he threw an ink well at his opposition.

Davis learned very early in his career that he was not going to succeed as he hoped to succeed if he did not learn to control his emotions.  His work ethic, his personal charm, his attention to detail, and his advocacy skills, a considerable skill set for any lawyer, were compromised by this weakness.

In time, Davis learned to curb his outward, emotional passion, and he became a lawyer of dispassionate focus. But it took great personal discipline.  In a sweet irony, it became his abiding strength that he kept his head when others around him lost theirs, to borrow Kipling’s happy phrase.

“The best way to predict your future is to create it,” said another backwoods lawyer, Abraham Lincoln, who rose from obscurity because of his similar commitment to dispassionate, clear, concise, and labor-intensive argument.

The distance between a hard-fighting rural practice in Clarksburg, West Virginia, to the boardrooms that controlled the economic power of the nation, was not as great as one might think.  And revealingly, the journey came not through the doorways of elite Ivy League schools, entrenched wealth, or superior intellect, but through the doorways of those old fashioned values we learned from our parents and grandparents, including one’s disciplined shoring up of a compromising weakness.  In the close hand-to-hand combat among the nation’s most elite leadership in the turmoil of the Great Depression, where emotions often ran high, it was the self-disciplined and now even tempered John W. Davis, who beat the demon temper at its own game, who would dispel the hard emotions in the room with the gentle word.  At which he became the master of his age.  

In a very real sense, he created his future, as Abraham Lincoln had predicted a lawyer could do, by shoring up his greatest weakness. Which really allowed his considerable strengths to flourish fully, trumping more often than not the intellectual brilliance of others.

What I’ve learned about life on the way to the courthouse is this: the best way to achieve success in life is to create your own way.  When you face your most compromising weakness honestly and you shore it up adequately, your strengths, more defining than you realize, can literally change the trajectory of your career.

A lesson we can learn from a lawyer who started out on the bottom rung, much like you and me.

Mike Wells

What I Learned From the Dog and the Skunk

What I Learned from the Dog and the Skunk

One of the most valuable lessons I learned about being a lawyer I learned before I started law school.

I worked as a runner for a law firm in college. The firm was a prominent, old line firm with a good book of business, and it had some high powered lawyers to take

care of that business.

One of the lawyers was particularly bright, and well regarded for his intellect.  He had graduated number one in his class at a top ten law school.  And he had the ego to go along with it.

The lawyer was known to take things out on the staff, which could do little or nothing about it, of course.  He had a troubling procrastination habit, and when he was making up lost ground on a matter, it was all the staff’s fault.

He was not well liked by the staff at all, and for good reason.  His considerable skill set and intellect generally caused clients to overlook some of his abrupt and dismissive ways. But towards the end of my time with the firm the word was some key clients had come to the end of the road of understanding about his nasty habit of talking down to people.

Sometimes you are in a position of authority or respect and you can get by with talking down to a person who does not have the standing or intellect to take you on. Or sometimes you are having one of those days, your emotional trigger gets tripped, and a burst of condescension comes roaring out. 

But if you are a person of education and intelligence, the most important skill you have may be to learn when not to press the advantage, just because you can. And to learn that condescension, however unintended and situational, is condescension all the same.

Years ago we had a client who blamed everybody else for their problems.  We had charted out a course that would have taken the client beyond the reach of those problems, but the client simply failed to follow through. We had spent a considerable amount of time and effort, and done some pretty good lawyering, too.  All of which was going to be lost, including any chance we were going to be paid for our efforts.

Despite my strong belief that a harsh attitude towards others is not acceptable behavior, the confluence of these events tripped my trigger.  And I violated my own fundamental rule.

We had a session which started out with the client’s normal litany of excuses about how everyone else was at fault.  Rather than focusing on a solution, I took the occasion to address the client’s attitude.  Which was appropriate to a degree.  But I should have avoided the sharpness of my comments.

In the end, everything I said was correct.  But I sure could have handled it better.  As a client with a modest education who was intimidated by lawyers anyway, the client listened, but it would have been obvious to anyone (except me) that what I said was not well received, to put it mildly. The substance, but more than that, the way I said it.

We sent the client on their way. The client was never going to do what the client needed to do.  But with reflection, I came to believe that all of my good lawyer judgment had been trumped by my poor people judgment.

We all know the old saw that for every satisfied client who tells one other person something good about you, the unsatisfied client will tell ten people something bad about you.  Whether what they say is true or not is really immaterial.  You are not there to defend yourself, and your thrashing is likely taken as the truth.

There is no telling how many thrashings I have gotten from that former client over the years.  And I could have avoided them if I had not pressed my advantage upon the client in a dismissive fashion.

“A dog can whip a skunk, but it’s not worth it,” says some old country wisdom from where I grew up.  Just because you can press an advantage in a relationship does not mean you should.

When you are a person of education, intelligence, or authority, or you possess some other distinct advantage of status in a situation, as you will often have, you really have to stay on your guard not to press that advantage in a way that denigrates or diminishes another person. The fact it comes in a quick flash of emotion and it is not in your normal nature does not really change the result, does it?

My wise father used to say you should see everyone at eye level.  You do not look up to anyone in jealousy, but you sure don’t look down on anyone, either.

What I have learned about life on the way to the courthouse is this: treat everyone with respect. Do not abuse your position of authority.  When your personal hot button is hit, you are tired, out of sorts, or you are having a bad day, watch yourself.  A dog can sure whip the skunk most times.  But it’s not worth it.  Take it from a dog who knows.

Mike Wells