Friday, May 18, 2012

First, Kill Off All The Lawyers



Shakespeare said it best. Lawyers get a bad rap for good reasons. They are hugely expensive, they deal in an area of life we either don't want to touch or feel we can't deal with, and sometimes, they are money grubbing scumbags.




So why do we need them, or do we. They answer is . .well maybe! I know that isn't what we most want to hear. But law is a complicated business and most of us just don't want to have to go there in our daily lives. Not only that, but legal minutia can drive a person crazy.




Have you ever tried looking at a statute? Here is is really good example of statutory construction that is just mind boggling for the non-attorney, California Probate Code Section 13101:



13101. (a) To collect money, receive tangible personal property, or have evidences of a debt, obligation, interest, right, security, or chose in action transferred under this chapter, an affidavit or a declaration under penalty of perjury under the laws of this state shall be furnished to the holder of the decedent's property stating all of the following: (1) The decedent's name. (2) The date and place of the decedent's death. (3) "At least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the decedent's death certificate attached to this affidavit or declaration." (4) Either of the following, as appropriate: (A) "No proceeding is now being or has been conducted in California for administration of the decedent's estate." (B) "The decedent's personal representative has consented in writing to the payment, transfer, or delivery to the affiant or declarant of the property described in the affidavit or declaration." (5) "The current gross fair market value of the decedent's real and personal property in California, excluding the property described in Section 13050 of the California Probate Code, does not exceed one hundred fifty thousand dollars ($150,000)." (6) A description of the property of the decedent that is to be paid, transferred, or delivered to the affiant or declarant. (7) The name of the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the described property. (8) Either of the following, as appropriate: (A) "The affiant or declarant is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent's interest in the described property." (B) "The affiant or declarant is authorized under Section 13051 of the California Probate Code to act on behalf of the successor of the decedent (as defined in Section 13006 of the California Probate Code) with respect to the decedent's interest in the described property." (9) "No other person has a superior right to the interest of the decedent in the described property." (10) "The affiant or declarant requests that the described property be paid, delivered, or transferred to the affiant or declarant." (11) "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct." (b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact. (c) If the particular item of property to be transferred under this chapter is a debt or other obligation secured by a lien on real property and the instrument creating the lien has been recorded in the office of the county recorder of the county where the real property is located, the affidavit or declaration shall satisfy the requirements both of this section and of Section 13106.5. (d) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration. (e) If the decedent's personal representative has consented to the payment, transfer, or delivery of the described property to the affiant or declarant, a copy of the consent and of the personal representative's letters shall be attached to the affidavit or declaration.

So given the complexity of statutory construction, how is a person to make heads or tails of this or even know where to begin to unravel a legal issue. There are places to go and some help is available. The issue is always to know when to seek advice, to make sure you understand the advice given, and to make sure that you fully understand how much it is going to cost you. Failing to understand and to ask questions often leads to frustration and impaired attorney/client relations.

To read further, see my article on  How to Evaluate Lawyers





5 comments:

  1. Recovering attorney.... LOL. I love it, Audrey! Nice blog!

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  2. Wow! cool post here. Yeah i agree with your perspective but don't you think there are some lawyers who work for the benefit of mankind. The business is mostly about just raising huge amount of money but still, if we could tackle our own problem~ be good humans ~ don't hagger as criminals, there would be no need of them :)
    Really nice piece yet!

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    1. I do think that there are wonderful attorneys out there. And many of them are underpaid and vastly overworked. That being said, there are real problems with the system as it is right now,

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  3. Audrey, I believe many things are deliberately written as clear "as mud"! When I worked in the prison system our policy and procedures could be interpreted more than one way many times and we felt that it was written that way so that the powers that be could rule either way depending on how the wind was blowing at the time.

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  4. Statutory boilerplate is horrible, and often written to obfuscate--sad

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