BULLETINS FROM ALOHA

It has been pointed out to me that I identified the wrong judge in my May 13, 2008 tome on judicial evaluations.  I meant to identify Multnomah County Circuit Court Judge Robert P.  Jones in the fourth paragraph.  Thank you readers for that information. 

Good lawyers do good for their profession and the public without expecting recognition, awards nor money for their efforts.  This is a representative tale of two attorneys with kind hearts.  It is a representative tale of 90% of the legal profession.  The other 10% are venal, self absorbed fascists who cause the harm to the rest of the legal profession.  Unfortunately, this 10% makes up the leadership of the Oregon State Bar and the Oregon judiciary.  This minority is leading the legal profession over a cliff and it is a short drop to the bottom.  This minority gives itself awards while the unwashed 90% go painfully unsung.

     I looked into her anguished eyes.  She is a local lawyer who, while putting herself through law school, also had multiple children during the  three long years of the required legal education process.  Now, after having done well with a downtown law firm, she decided to hang out her own shingle.  She was lamenting to me that the pro bono (for good) work that she did was taking a toll on her practice and it seemed like there should be a more coordinated program for doing good in our community.  She had established a fine reputation in the legal community and was active in the local bar.   Oddly, the Oregon State Bar does not have a coordinated, statewide, formal legal pro bono program. 

     Several years later marital discord interrupted her upward ascent and her ability to cope.  Our profession has some rescue vehicles, but there is a well-founded suspicion that these rescue vehicles are also a fast ticket to being disbarred.  Observing her plight, there seemed to be few options for one who had literally given their all to the legal profession for very little in return. 

     A new male lawyer to the profession and to the local community was seated beside me at a bar association dinner.  Soon, I  learned he had an unusual background before entering the legal profession.  He specialized in artificial insemination of farm animals.  Adroitly, he located a solo law office in the outskirts of the urban growth boundary near a small town.  His mien was humble, his manner infectious.  He demonstrated no ego whatsoever.   This man was the Everyman of the legal profession.  After awhile, his name started to appear in local papers because he was representing the small town in various legal matters with distinction.  As the lady mentioned above, he was very active in his local bar association.  [There are two sorts that become active in their local bars.  Those on the make to be a judge and those who simply want to do good for their chosen legal profession.  He was of the latter.]

     Several years later, I bumped into him and he seemed preoccupied, though friendly as always.  His law practice seemed to be thriving. 

     There is a burn-out period in the legal profession.  That also goes for participating in local bar associations and soon people go their separate ways.  Because of this I didn't see him for awhile, then the roof fell in.  I learned that the Bar association had invaded his office looking either for dirt or to help him out of dire straits.  To this day, I am not sure which.  Several months later I made contact and he was very candid with me on what happened.

     Both lawyers are the sort that you would like as a friend.  Both are a credit to their community and the legal profession.  Both were solo lawyers.  Both sought to do good.  The grand fiction is that lawyers make a lot of money.  My guess is that most lawyers who practice alone earn less than $50,000 per year, take home pay.  Therefore, there is not much room for error when it comes to just earning a living.  Neither lawyer got an award.  To the contrary, their reward for entering the legal profession and for doing good was stress and heartache.  No one is telling their tale.  Our leadership turns silently away.  The public is denied these LAWYERS WITH KIND HEARTS,  that do good, because of the failure of that bar leadership.  Bar leadership give themselves awards (Justice Peterson gets the 'Justice Peterson' award and Justice Carson gets the 'Justice Carson' award!----the outright pandering is ugly) .   Otherwise, bar leadership ignores these lawyers with kind hearts and ignores such people across our land.  It is a sad picture. 
 

If you haven't noticed, there is a new way to market the family farm.  In this day of stagnant real estate sales and uncertain financing, a real estate auction may be the wave of the future and the right marketing approach for your property. This article compares residential real estate auctions with the conventional listing of a home with a real estate agent.   (Also see the related article below entitled "Subprime Odyssey" at page 2, dated February 26, 2008.)

Step One:    A conventional real estate transaction begins with interviewing and hiring a real estate agent.  The formal process includes signing of a multiple listing agreement that requires the seller to pay a six (6) percent commission when the house sells.  Unfortunately, most real estate agents do not disclose nor formally commit to what actual marketing steps they are going to take in your behalf nor when.  In reality, many real estate agents have become cheap and lazy.  Instead of significant marketing action of your property, they put up a sign, put your listing on the internet and then retire.  The seller is at the mercy of the real estate agent's efforts and timetable after those two events and there is no date except eternity that determines when your real estate is going to sell.    An auction gives the seller a date certain. 

The auction process begins in Alabama.  Sounds a little rough doesn't it?   The big daddy's of real estate auctions are J.P. King, Albert Burney and the Redfield Group all from Gadsden, Alabama.   There is a guide to Real Estate Auctions on the internet for you to find an acceptable company in your local area.   The friendly real estate auction salesperson will come and visit you for free, even from Alabama, but here is where the difference begins. 

Step Two:   As the auction salesperson will soon disclose, they want to be paid up-front for the marketing expense.  In a straight forward residential sale the up-front expense could be as little as $10,000 or as much as $100,000 for a Lake Oswego imperial mansion.  The catch is that half their budget is for their office overhead rather than actual outside vendor marketing expense (such as slick sales brochures).  That up-front expense should be considered in your negotiations.    Auction companies appear to be much more professional about their marketing and virtual tour packages.    They are also much more professional about the team approach to selling your property.  The auction company also is more sophisticated as to how to entice out-of-state buyers to get interested in your local property. 

Step Three:     The principle difference between a conventional sale and the auction is the timeline.  The auction concept has a carefully coordinated sixty (60) day sales plan with the actual auction to occur about sixty days after you have hired the auction company.   They don't want their sale too much longer than sixty days because they key their marketing to the immediacy of the distribution of their marketing materials.  In other words, they want the sale to follow within about a month of the dissemination of their marketing materials.  Thus, the seller has a date certain for sale of the property.

A significant nuance is the "absolute auction".  This is the 'no reserve' sale which means the house will sell to the highest bidder come rain or shine.  There are a number of ways to attenuate this, such as by having a 'conditional sale'  This means the sale is conditioned on acceptance by the seller.  The second alternative is to state the starting bid price in the marketing materials.  This is a soft way of setting the reserve in advance. 

An actual sale  --  The Bar M ranch is a huge dude ranch in eastern Oregon.  The family which owned the property had various squabbles and no one in the family could agree on how to market the property.  Finally, they sold the property through J.P King auction company from Alabama.    The property was appraised at about $2 million dollars, but had numerous capital improvement issues.    There were over ten people who qualified for the sale.  Three qualified bidders showed up and only one bid for the property.  The bid was 1.4 million and sold for that amount.  The sellers were happy and the eastern Oregon rancher who bought the property was happy.

Buyer's premium  --  Built into the marketing material is a clear understanding that this is an unconditional sale as to the buyer (meaning that house inspections and other 'due diligence' must take place before the auction date).  The auction team arrives on site at least eight days before the auction to facilitate 'due diligence'.  Also made clear is that the bidders must post a certain deposit to make them qualified bidders.  Finally, the materials make clear that the buyer must also pay a buyer's premium of ten percent commission to the auction company when the high bid is accepted.

Thus, the up-front marketing money paid by the seller at the front end is, in fact, the commission payment to the (real estate) auction agent by the seller with the remaining profit for the auction company coming from the buyer under that 'buyer's premium' concept. 

These auctions work, they are fun and not as risky as they sound.  There are numerous local companies getting interested in this concept in this age of foreclosures.  It is important to note, an auction is not a liquidation sale.  The auction companies market the property to achieve the maximum possible price, because, after all, their profit is based on the ultimate sale price. 

^{Judicial elections occur May 20, 2008.  The Oregon State Bar folded like a cheap suit in refusing to provide the public with formal statewide judicial evaluations proposed in 2004.  So, where do you go to find information as to who is running and their judicial qualifications?   The simple dance in Oregon is for the governor to appoint judges before the election so they can run as incumbents.  For the incumbents, a statewide judicial evaluation program would provide a meaningful tool for the public to use to decide if the local judges running for election are worth their salt.  CONSEQUENTLY, HERE ARE MY JUDICIAL EVALUATIONS YOU WILL GET NO WHERE ELSE!}

     Where to find the information?   The first logical place to go might be the major newspaper, the Oregonian.  There you will find only an article where a prosecutor is trying to replace a public defender appointed by the governor.  The article points out how seldom anyone challenges an incumbent.  You can also go to OregonLive. com-news-politics&elections-voter guide.   The next place is the Secretary of State which publishes the voter's guide.  Stumbling there one finds out an interesting fact.  Certain incumbent judges do not have to run in the primary under Oregon law.  Next, one could try the Oregon Judicial Department.  They apologize that their website will be revised soon and tell you to go to the Oregon State Bar website.  But, wait, aren't they (the Oregon State Bar) the ones who chickened out on judicial evaluations?  Moreover, their site --  2008 OSB judicial candidate voting guide --  is edited by Kateri Walsh who is the PR person for the Oregon State Bar and used to work for the Oregonian.  Smell a rat?  There is the Oregon Blue Book which provides nice pictures of the incumbent judges.   Finally, many judges may be in wikipedia and may be googled by listing their name and the words 'oregon lawyer' or 'oregon judge' in the google bar.

     Who is Running?     By my count there are 58 judicial positions up for election just now.  There is even one Oregon Supreme Court position and one Oregon Court of Appeals judge position open.  Sadly, of the 58 judicial elections in play only three are contested.  That means the incumbent automatically wins in fifty five judicial elections.  How do you know whether they are any good  or whether they should keep their job?

     My Evaluations:     There is a reason no lawyer in their right mind would give you unvarnished information on the worth of the local judge on the record.  It is occupational suicide.  (I have already died, so I can tell you what I think.)  We need a statewide system of judicial evaluations so lawyers can provide that candid information to a neutral body in confidential form.  Then voters will have competent information to go on.  Currently, Oregon's Worker's Compensation judges receive these sort of evaluations, but they are administrative judges, not elected judges.  The American Bar Association formally recommended in 2005 that all states provide a statewide judicial evaluation program for these very reasons.  Here are my evaluations:

•      Oregon Supreme Court --  Thomas A. Balmer :      Not qualified even to serve on Oregon's Supreme Court which is dysfunctional.     Poor courtroom demeanor and uneven reasoning skills.   Wikipedia discloses the insidious internecine aspect of Oregon's judiciary.  Justice Balmer used to work for Governor Ted when they were both at the Attorney General's office.  When Governor Ted later left the Oregon Supreme Court, he secured his position on the Oregon Supreme Court  to his former inge'nue, Justice Balmer. 
  
•      Oregon Court of Appeals  --  David Schuman:     Not qualified.  Apparently, failed to file for his first election in time, but the authorities that be gave him a pass.   He wrote a law review article to try to elevate himself.  A careful reading of that article and his opinions prove he is not qualified.
  
•      Oregon Court of Appeals  --  Walt Edmonds:     Qualified and tries hard.  Not a sterling scholar. 
  
•      Multnomah County  --  Julie Frantz:     Very qualified.  Very professional lawyer and former President of the Oregon State Bar  (quite an accomplishment in that male bastion).
•      Multnomah County  --  Kristena A. LaMar:     Not qualified.  Judge LaMar retired into the easiest judicial job available years ago as the settlement judge.  Puts very little effort or intellect into what she does.  This judicial  position needs new blood. 
  
•      Multnomah County  --  Henry Kantor:       Not qualified.  Has no judicial skills nor acumen for the job.  He may even be dangerous in that position. 
  
•      Multnomah County  --  Michael Marcus:      Very qualified.  Wrote a excellent self-help book on Landlord - Tenant law.   Almost always really cares about the cases before him.  In danger of burnout.  
  
•      Multnomah County  --  John Wittmayer:     Not qualified.   Intoxicated by the black robe power trip.  Self styled expert on courtroom decorum of which he is missing himself.  Should be turned out of office.
•      Clackamas County  --  Robert Selander:     Extremely qualified.  Probably one of the best judges in the state.  Should be tapped for higher office.
  
•      Clackamas County  --   Deanne Darling:     Very qualified.  Excellent courtroom skills.  (She could also have excelled as a speaker/comedian for any occasion.)  Should be looked at for higher office.
•      Columbia County  --  Steven Reed:     Very qualified.  Brings the skills of a long time local lawyer into the courtroom. 
  
•      Columbia County  --  Ted Grove:      Extremely qualified.  One of the hardest working judges in the state.  No judge tries harder to be fair along with the application of excellent cerebral skills than Judge Grove. 
  
•      Washington County  --  Kirsten Thompson:   Barely qualified.   Unfortunately, Judge Thompson falls in that ever-expanding class of lawyers who want to be a judge after failing in private practice.
•      Washington County  --  Keith Raines:     Not qualified. 
  
•      Washington County  --  Contested race between Keith Rogers, public defender and Andy Erwin prosecutor.  There is a pattern of the DA's office in Washington County always challenging any public defender seeking a judge position.   Who says there is no bias in the criminal courtroom?!?
  
•      Washington County  --  Steven Price:     Very qualified.  Oddly,  Judge Price comes from that cadre of lawyers from failed private practice that became a very good judge.  Excellent intelligence if occasionally mercurial. 
  
•      Washington County  --  Marco Hernandez:     Not qualified.   Prime example of hubris overcoming competence.  Scariest of all , Judge Hernandez is appearing on short lists for higher office.  He is crippled by not knowing what he doesn't know.   Judge Hernandez declined to furnish biographical information to  the Oregon Live source mentioned above.  Should be turned out of office. 
  

This is the third in a series of articles that intends to provide a road map to improve our legal system.  Our legal system is stuck in the mud.  It is antiquated, it is inefficient, it is expensive.  It is corrupt.  There is no leadership trying to fix the system.  To the contrary, the rich and the powerful are deeply wed to the present system intellectually and financially.  The first Theory for Improvement is on Page 2 below, dated 1/2/08, and proposes the elimination of Probate court.  It outlines why this court is useless and is costing middle class America.  The second Theory is on Page 3 below, dated 2/13/08, and discusses how our legal system has it exactly backwards in how disputes should be settled.  Now, here we offer a third Theory for Legal Improvement which proposes the elimination of Legalese from the earth.

 We work so we can have free time, a vacation even.  Consider the simple transactions in going on vacation.  What happens if the airlines loses your luggage?  Are your rights to recovery and recompense known to you?  To what limits?  It gets worse when you present yourself at the rental car counter.  The Mustang convertible will allow wind to blow through your hair.  To read and understand the fine print on the back of your rental agreement will cause you to tear your hair out.  Never mind the upselling (do not buy the additional insurance--that is a separate profit center for the rental car companies.  Your insurance policy on the car back home should provide all the insurance you need). 

Insurance companies were required to put their policies in an EZ read format for their customers in the 1970's.  They have backslid some, but that is the sort of reform that is within our grasp if we  will only tell our legislators and businesses what we want.  Don't wait for a controversy or dispute with the rental car company or airlines to register your indignation at the state of LEGALESE in our lives and in their contracts.  Recommendation:  Register your protest now by sending a polite letter to each; your local legislator and the first business entity in which you encounter a contract with legalese that you cannot understand.  Anyone with a credit card in their pocket or bag is engaged in a commercial transaction in which the ordinary citizen has no idea what the written rules require from you or allow the financial institution to do to you.    No one!

There are only two times when citizens normally need a lawyer and don't get one.  First, people need a lawyer when they do their wills.  Usually a simple will will suffice, but with the proliferation of second marriages, people need a lawyer's help when planning for the next chapter of life.  Second, people need a lawyer when buying a home.  This is usually the most important time in your life and is the biggest purchase one will ever make (except for purchasing that Hummer!!), so you need a lawyer.  Here is where the wheels have fallen off.  Twenty years ago, the Earnest Money (real estate purchase) Agreement was one page long.  Now it is over eight pages with the most spectacular array of additional do's and don'ts written with indecipherable language.  Caveat emptor!  There is much Latin that remains in LEGALESE.  Caveat emptor means "Buyer Beware".  You are buying a pig in a poke (you are buying something in a bag that you are not allowed to see until you have forked over your money).  Here is why you are buying a pig in a poke. 

There are three components to a real estate sale:  The Earnest Money Agreement, the Preliminary Title Report and the Closing documents.  These three paper packages cannot be understood by Philadelphia lawyers much less the average home buyer.  Consider this  --  a 'trust deed', used in virtually all land transactions, is not a deed at all!!  It is a security agreement not a deed.  These legal documents could easily be put in short form and put in understandable language, but there is no motivation to do so.  Why?  Because the real estate industry lawyers have designed the first package of documents, the Earnest Money Agreement  (EMA), to protect real estate agents.  This has resulted in that ridiculously complex real estate purchase contract, the EMA,  with LEGALESE of no practical use to buyers.  Then the lawyers for the title companies have designed the Preliminary Title Report to protect themselves.  Title companies are nothing more than insurance companies and their contract excludes most of what a citizen needs coverage for in a title insurance policy.  Finally, the Closing documents are hopelessly complex to protect the interests of banks and financial institutions.

 Who is left out of this protection racket?  The common ordinary citizen.  Trumped-up complexity is the lifeblood of lawyers.  This thicket of sharp language is not just confined to everyday commercial transactions.  The complex papers devised by lawyers to resolve a dispute over these wordy contracts in court is the next subject for Theories for Legal Improvement.........and Revolution.   Watch for the next exciting chapter in how you can rid yourself of lawyers and their hold on society.  And I am one.