shlep: the Self-Help Law ExPress

This information may be too late for Daniel Wallace (see our prior post).  But, shlep wants to help the nonlawyer understand antitrust law, so that decisions about suing (or seeking legal assistance) will be better-informed and, more generally, so that members of the public can better evaluate the action (or inaction) of prosecutors and private litigants.   Last week’s news that Connecticut Attorney General Richard Blumenthal has opened an investigation into “whether the Infectious Diseases Society of America has violated antitrust laws in setting new guidelines for diagnosing and treating Lyme disease” (Hartford Courant, Nov. 17, 2006; via Antitrust Review), suggests both that antitrust will often be clumsily used as a political panacea and that even prosectors should be brushing up on antitrust basics.  

  Our task is made much easier by a project that I put together for the American Antitrust Institute [AAI] a few years ago.  It is a Guide to Antitrust Resources on the Web, that has annotated links to hundreds of online materials, searchable and presented in numerous categories, including: 

• antitrust Primers and Overviews from a variety of sources and points of view
• federal (U.S.A.) antitrust statutes and regulations — Sherman, Clayton, Robinson-Patman, and more
• U.S. enforcement agencies and guidelines
• state antitrust resources
• antitrust exemptions: Parker/State-Action, Noerr-Pennington (seeking government aciton), Baseball, Business of Insurance, and more
• International Competition Resources, including: a) Competition Links Worldwide: links to National Competition Authorities, compiled by UNCTAD; National Competition Legislation: Compiled by UNCTAD, this is a growing list of links to English versions of laws for the protection of competition in various nations, including Bulgaria, Chile, Indonesia, Israel, Jamaica, Kenya, Lithuania, Malawi, Mexico, New Zealand, Thailand, Turkey, Ukraine, Zambia, Zimbabwe; and c) materials on specific Regions and Countries 

To keep up on antitrust issues in the news, we suggest: a) The daily posting on antitrust news, scholarship and opinion by Crane, Fischer, Kaiser & Gabriel at the Antitrust Review Weblog, and by Prof. Ghosh at his AntitrustProf Blog (update: Prof. Ghosh has been joined by Prof. D. Daniel Sokol and renamed the site Antitrust & Competition Policy Blog).   b) Quarterly expert analysis on current issues from The Antitrust Source, an online publication from the American Bar Association’s Section on Antitrust.   c) Sheppard Mullin’s monthly newsletter editions at its Antitrust Law Blog.  And, d) the AAI homepage, where you can keep abreast of its many advocacy initiatives and educational projects and publications.

  For intellectual and historical background, you might want to read about The Factions of Antitrust.  There are four major schools of thought in the United States concerning the relationship between government and economic markets, resulting in four corresponding approaches to the role of antitrust and competition policy. From political “right” to “left”, they are: Libertarian, Neoclassical (“Chicago”), Post-Chicago, and Populist.  As is suggested in recent postings at the Antitrust Review weblog and Truth on the Market, the “Chicago School” has won most of the important debates in antitrust law — in academia and the courts — over the past couple of decades.

update (Nov. 25, 2006): A listing at ConsumerWorld’s Legal Resources page reminded us that Prof. Anthony D. Becker of St. Olaf College has put together the The Antitrust Case Browser, which has links to case summaries for all U.S. Supreme Court antitrust cases, arranged alphabetically, chronologically and by subject and industry.  It also has links to statutes and other antitrust resources.

update (Feb. 14, 2007): Prof. D. Daniel Sokol at the Antitrust & Competition Policy weblog has posted today on What are the Best Souces for Antitrust/Competition Policy News?

   One that Oscar Forgot (update, Feb. 26, 2007): Last night’s Academy Awards ceremony apparently overlooked a real contender in the Short-form documentary category.  Russel Mokhibor wrote a glowing review of Fair Fight in the Marketplace in the Feb. 21, 2007 edition of Corporate Crime Reporter.  Mokhibor is impressed (and surprised) that a 30-minute primer on antitrust could be so interesting and informative. The review notes that “The movie, narrated by National Public Radio’s Mara Liasson, traces the history of the antitrust laws – and keeps it interesting for young people with cartoon depictions of price fixing and television clips of kids competing.”  The English-language film will have Spanish and Mandarin subtitles (the review has an interesting explanation for the Mandarin). There’s even a special edition with commentary for high schoolers. The reviewer also gushes that:

“[T]he film actually becomes gripping educational television – am I losing my bearings here? – when it profiles the Mylan Labs, ADM and Microsoft cases.” 

Perhaps the film, which is the brainchild of Bert Foer, president of the American Antitrust Institute, will be eligible for an Oscar next year, as it will have its broadcast premiere on PBS in April.   You can see it online at any time here.

There are lots of legal information reources out there at a library near you…from  Nolo’s book on Music Law to the in-depth treatises on Copyright Law.  The trick is finding out which library has what.  Fortunately, Worldcat has a search engine for library catalogs.  You can enter in your zip and find out which libraries near you have the books you are looking for.  For instance, a search for Nolo’s Music Law: How to Run Your Band’s Business gives me a list of libraries in my neighborhood that have the book.  It even gives me libraries around the world that have it on their shelves (you will be glad to know the University of Hong Kong has a copy!).

More and more legal and government information is available online. But how well is it organized? Can you find it easily, or do you have to wade through menu after menu? Is it presented in a way that newcomers can figure out or does the organization only make sense to insiders? Two organizations offer criteria for best practices and give examples of courts and agencies that have really good websites.

Fans of Clint Eastwood (and/or Sondra Locke) will probably understand the meandering shlep that began for me last month by reading Forrest Carter’s Western classic Gone to Texas, then found me borrowing the dvd of The Outlaw Josey Wales from my local library over the weekend, and resulted in this posting on living-together and pre-nuptial agreements.  (If the rest of you want to connect the dots, you’ll have to use your self-help skills and click on the above links.)

 Rather than gossip about Clint and Sondra, I’ll just say that they might have saved themselves a lot of grief and legal fees if they had entered into a Living Together Agreement prior to their breakup in 1988.   As FreeAdvice.com wisely notes “safeguarding income and assets – and negotiating an agreement — in the event of termination of the relationship or death is far easier to accomplish when neither party is angry, under stress and/or hostile.”  Although FindLaw for the Public‘s compilation of links to Marriage and Living Together Laws in 50 States, is a must-see on this topic, most self-helpers would surely do themselves a favor by stopping first to read the extensive Nolo.com materials on Living Together. 

While noting that a living-together agreement may not seem very romantic, Nolo nonetheless advises: “Practically speaking, your agreement will help you avoid trouble when you mix your money and property, and it will make clear your intentions and expectations regarding property ownership, household expenses and the like. It can also greatly ease the division or distribution of property after a breakup or death. On a more personal note, the process of negotiating and drafting your agreement may well strengthen your abilities to communicate with and understand each other.”  Nolo offers a Property Rights of Unmarried Couples FAQ, which answers questions on buying a home, debt, death, palimony, and more.  Other materials at the site cover Parenting Issues for Unmarried Couples, Medical and Financial Decisions, Claiming Your Partner as a Dependent on Your Tax Return, and Common Law Marriage.

  Because even the nicest married couples can end up splitting, Prenuptial (Pre-marital) Agreements can make a lot of sense.  There are quite a few places to go for information on this topic.  For example, the ABA Guide to Marriage, Divorce and Families (256 pp, April 2006, $16.95) offers a free, 12-page Sample Chapter online covering Pre-marital Agreements.  After a good discussion of the concepts involved and issues that should be considered, the chapter lists a few additional resources, including FreeAdvice’s Pre-Marital Agreement page (which has a lengthy Q&A), and advice from The Equality in Marriage Institute.  update (Jan. 8, 2007):  You can find a good FAQ on Pre-Nuptial Agreements at the website of the Montgomery Law firm, Cary, NC.  The site also has an extensive Family Law Glossary.

Nolo.com also has put together a number of very useful articles and FAQs on the topic of Prenuptial Agreements, including the podcast: Should You Use a Prenuptial Agreement? (May 2006, click for the transcript), which is an interview with attorney-mediator Katherine Stoner, co-author of the Nolo book Prenuptial Agreements: How to Write a Fair and Lasting Agreement.  In the 13-minute podcast, Stoner “explains prenuptial basics including when you need a prenuptial agreement, when a prenuptial agreement is unenforceable, the effect of a prenup on estate planning, dealing with business ownership in a prenup, prenup negotiations, and how and when prenups apply to same-sex couples.” 

 At the main Nolo.com website, you can also find a Prenuptial Resource Center.  There is an overview section, an important article explaining What You Can (and Can’t) Do With a Prenuptial Agreement, and other to help you decide Is a Prenuptial Agreement Right for You?.   Readers should be quite interested in the unexpected answer to the question Do We Need a Lawyer to Make a Prenuptial Agreement?: “It may sound surprising coming from advocates of self-help law, but yes, you do need a lawyer when making a prenuptial agreement.  If you want to end up with a clear and binding premarital agreement, you should get help from a good lawyer. In fact, you will need two lawyers — one for each of you. Here’s why. . . ”  Despite that advice, authors Irving and Stoner make a very important related recommendation:

“That said, it’s best not to ask your lawyers to start writing up a draft or final agreement until the two of you have settled on its essential terms. You should put those terms in writing — either in a written outline or a draft agreement you create yourselves. A prenup prepared by a lawyer who isn’t working from terms you’ve both agreed on is likely to be one-sided and adversarial. If you provide your lawyers with an outline or draft prepared by both of you, the whole process — and the final document — will be more balanced.” 

One of the best self-help strategies is the avoidance of problems through proper planning.  The above resources should help thoughtful couples avoid a lot of legal headaches when they break up. 

afterthought (Jan. 20, 2007): LegalZoom.com, the web resource that allows you to create legal forms online (and reviews your answers and the forms before they are finalized), has information on pre-nuptial agreements, to help you make informed decisions.  The page that starts there pre-nup procedure notes: “Filling out the Questionnaire is free. There is no time limit. At the end, you may decide whether or not you wish to purchase. ”

The Oregon Legal Research weblog had a post today linking to some resources on condo and homeowner association law in that state.   Laurie Orr’s piece reminded me that many homebuyers and homeowners (including accidental board members) could use a compilation of resources related to condo and co-op law, common interest developments (CIDs), homeowner associations, and their CC&R spawn — “covenants, conditions and restrictions.” 

 Keeping in mind that Condo Law is mostly a matter of state and local law, the following sources could be useful places for the consumer who needs to get a feel for the relevant concepts, rights, responsibilites, and pitfalls.

• The Community Associations Institute (CAI) offers a free download of its brochure “Community Matters – What You Should Know Before You Buy”  It “explains the nature, benefits, and obligations of community association living. It addresses governance, rules, assessments, and homeowner expectations and highlights 14 questions potential buyers should answer before buying.” CIA’s weblog Ungated, also has relevant information, as does the 22-page booklet “The Homeowner & the Community Association” [it’s $2.95, but you can get one free copy with your SASE], and the book Community Association Legal Counsel: How To Select and Use An Attorney.
• The Association Times website has a useful Glossary of Terms, and an extensive State Resources Page that contains links to relevant State Laws, as well as Local CAI Chapters. 
• Nolo.com has a brief article: Understanding Homeowners’ Associations and CC&R.
• HALT’s Citizens Legal Guide: Condos, Co-ops & Homeowners Associations: What You Need to Know gives a good summary of things you need to know and think about.  It points out “Community associations, which govern housing developments such as condominium or cooperative buildings and townhouse developments, can exercise a tremendous amount of control over the residents living within them. A community association can — typically does — set out a number of restrictions. These rules can dictate what color you paint your house, what type of shrubs or flowers you plant in your yard or what your garbage can must look like. If you’re in the market for a condo, townhouse or co-op, there are some important things you should know about your rights and responsibilities within a community association.”  (pdf version)
• CondoLawyers.com has a variety of relevant information,including a state-by-state list of condo statutes, a Primer on Duties and Authority of Association Boards, and an articles page, with titles such as “Abusive Boards: The FIght Against Them.”      California lawyer Beth Grimm — your CondoGuru — has put together an informative website. For example, find a long list of articles here.
• The Condo Law website is run by three lawyers who say they have put together an easy-to-understand Database that “covers the National Condo Law for all fifty U. S. states, the District of Columbia, and even U.S. territories. It is the most comprehensive collection of condominium law questions and answers o­n the Internet.”  Click here for a page listing the many topics covered.  To access the information on the site, however, you must pay a modest registration fee (daily, monthly or annual).  

  For lawyers, law students, and their professors, the “law of self-help” is a different concept than shlep‘s notion of “self-help law.”  Rather than our focus on individuals using “self-help law” materials and activity to solve legal problems or engage in litigation without involving lawyers, the traditional legal doctrine of self-help refers to:

“obtaining relief or enforcing one’s rights without resorting to legal action, such as repossessing a car when payments have not been made, retrieving borrowed or stolen goods, demanding and receiving payment or abating a nuisance (such as digging a ditch to divert flooding from another’s property). Self-help is legal as long as it does not “break the public peace” or violate some other law (although brief trespass is common) . . .” (Law.com Dictionary)

The “law of self-help” is, therefore, concerned with understanding whether, when, or how a person can engage in direct self-help activity without violating the law.  It is usually accepted that using violence or otherwise “breaking the public peace” is not permitted under the law of self-help.  

A farmer might engage lawfully in self-help, for instance, if one of his cows meanders into a neighbor’s field — by entering the pasture and fetching his cow, despite a technical trespass.   On the other hand, the North Dakotan who recently “helped himself to a 600-pound, black-and-white-faced steer” belonging to someone else, butchering it right there on the spot (Bismark Tribune, Nov. 7, 2006), was certainly acting outside the doctrine. More problematic, would be the behavior of the new Nicaraguan president-elect Daniel Ortega, who we are told “helped himself to a prime slice of expropriated real estate” before being voted out of office in 1990

 Many Baby Boomers and GenXers got their introduction to the law of self-help in the 1984 cult classic movie Repo Man, starring Emilio Estevez.  Those studying Contracts Law or the Uniform Commercial Code might, indeed, enjoy arguing over which instances of self-help in that film were within the law.  The “recovery experts” listed in RepoMan.com‘s Repossession Directory should be familiar with the particulars of the law of self-help, too.  For a very good introduction to the theory, history, and current state of the self-help doctirne, see “Self-Help in Contract Law: An Exploration and Proposal,” 33 Wake Forest Law Review (839 – 907 (1988), by U. Denver Law Professor Celia R. Taylor. 

In preparing yesterday’s posting on the Beninca case in Brisbane (Australia), I again had the impression that the vast majority of self-help materials for litigants is written from the perspective of the person filing a claim (the plaintiff, petitioner, claimant), and not the person being sued.   Maybe I’ve seen an unrepresentative sample of resources from court websites and self-help centers.   If so, I hope that pro se practitioners, law librarians, self-helpers and others in the know, will help correct that impression by letting us know, in Comments to this posting (or in postings of your own here or elsewhere), of materials that have been prepared to assist those who are appearing in court without a lawyer, or considering doing so, after being sued. 

Here are a few defendant/respondent-oriented materials to start our collection:

For California Small Claims: What to do if you are being sued.

From Nova Scotia (Canada): How to File a Defence in a Civil Court Case.

From the Law Courts Education Society of British Columbia [Canada]: Responding to an Appeal – Civil Cases [15-pp pdf.]

From New Jersey: How to Answer a Complaint in the Special Civil Part (March 2006), relating to cases under $15,000.

 Appearing without a lawyer as the plaintiff is scary.  Having to do so when you are the one being sued and facing a judgment against you has to be, in general, even scarier.  Let’s create a good list here of documents helpful to such individuals. [Afterthought: Even if written from the perspective of those filing a claim or starting a lawsuit, most materials at judicial websites for the self-represented contain information about court procedures and the presentation of a case that can also be used/adapted by the defendant.  After reading such general self-help documents, litigants who are not sure how to respond pro se to a lawsuit, should should not be shy about asking court staff for help clarifying procedures.]

update (Jan. 24, 2007): I discovered yesterday that Illinois Legal Aid has created self-help and informational materials for defendants or respondents. Along with many other general or plaintiff-oriented self-help articles, you’ll find links to the following pieces in the SideBar of the linked Illinois Legal Aid Online webpage:

•  How Do I Respond to a Lawsuit in the Circuit Court of Cook County?
   How Do I Settle an Eviction Case with My Landlord? 
   How to Defend Against a Default Judgment If Your Landlord is Trying to Evict You
   How to Get More Time after You Are Ordered to Move Out by a Judge 
   How to Help Defend a Foreclosure Case
   How to Respond to a Petition for Rule to Show Cause
   I am Being Sued in Kane County for an Amount of $10,000 or Less
   What Can I Do If I Am Sued for Mortgage Foreclosure?
   What Can I Do If My Landlord Wants to Evict Me?
   What To Do When You’re Sued by Mistake

  The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants were approved by the Justices of the Supreme Judicial Court in April, 2006.

“While the legal and ethical constraints upon the courts and the judiciary, such as those contained in the Code of Judicial Conduct, apply with equal force to cases involving self-represented litigants, judges have broad discretion within these boundaries. These guidelines have been developed to assist judges in recognizing the areas in which they have discretion and to assist them in the exercise of that discretion.”

  The newest entry in the Nolo.com Law-in-Plain-English podcast series is entitled What Do You Do If Your Business is in Financial Trouble? (Nov. 3, 2006, 15 min)  According to Nolo,  Attorney and small-business expert Fred S. Steingold (author of Legal Guide for Starting & Running a Small Business, 9th Ed. 2006) “answers questions about the payment of taxes, how to develop an asset protection plan, using a corporation or LLC as a personal liability shield, extending insurance, dealing with penniless partners and the problems of favoring certain creditors before filing bankruptcy.”  [you may soon be able to find a transcript here]  For additional information and links on this topic, you can also check out Work.com resources, such as Guide to Turning Around a Troubled Business, by Jackie Larson, and Guide to Business Bankruptcy Alternatives, by John Fuller.

On Halloween, the word “party” conjures up masks, costumes and poseurs — and looking less than your best can garner applause.   At court, however, parties need to show some discretion when deciding how to look for their appearances.

    The article “The Beauty Bounty,” in the new Nov.-Dec. 2006 issue of Harvard Magazine reminded me today to talk about how the pro se litigant dresses and otherwise preens for court.  The article discusses the paper “Why Beauty Matters,” by economists Markus M. Mobius of Harvard and Tanya S. Rosenblat of Wesleyan University, in American Economic Review, 2006, vol. 96, issue 1, pages 222-235 (abstract; prepublication pdf. version; summarized in NYT article, April 6, 2006).  Professors Mobius and Rosenblatt took the fact that attractive people earn higher wages than ordinary-looking people and designed an experiment to “decompose” the root causes of the beauty premium (which was 12 to 17 percent in their study).  The professors found that employers have a visual stereotype that more attractive people are more productive; beyond that, attractive people are themselves more confident (probably because of a lifetime of positive feedback); and they also have better conversational skills.   

   

This study is obviously not directly applicable to litigants at court.  However, we can say with some certainty that human beings in the judicial system have similar positive “visual stereotypes,” and respond well to those who are self-confident and have good conversational skills.   The best evidence of a visual stereotype is the fact that court after court, across the nation (and even in Canada), stresses the importance for the self-represented of making a good impression by their appearance.  For example:

•   The Kern County [CA] Superior Court has a A Guide for Self -Represented Litigants that states:”What should I wear to court?  Court is a business type of environment. Dress as if you are going to a job interview. Be clean and neat. Shorts, tank tops and flip-flop sandals are not allowed.”
• The West Virginia Courts, in “Going Solo“, emphasize in their first tip: “Make a good impression: If you dress nicely, it tells the judge that you respect the courtroom and care about your case.”
• In Massachusetts, the Plymouth County Probate and Family Court has as its second of Ten Suggestions (after “be on time”): DRESS IN A WAY THAT SHOWS RESPECT FOR THE COURT. You do not need to dress like a lawyer or buy new clothes.  Do, however, dress in a dignified way.  Unless it is an absolute emergency, avoid wearing jeans, T-shirts, shorts, tank-tops, sleeveless athletic shirts, cut off shirts, and undershirts in the courtroom.
• Similarly, the Superior Court of Arizona, offers Tips on Self-Representation that advise: “The Court is a very traditional and polite place. When you are representing yourself in Court you are trying to persuade a judge or a jury that you are right. So you must act, dress, and speak in a way that helps you with your case. Here are some tips: [listed first] When you come to Court, dress as professionally as possible. This means clothes that are neat and clean, and without holes. You should be clean and neatly groomed.” 

 

  Personally, I was amazed when I first walked into the Schenectady County, NY, Family Court, in 1988.  The hallways and courtroom were far less “courtly” than I had expected.  More surprising, I had never seen so many “wife-beater” sleeveless t-shirts, tattoos, and unsightly legs in short pants, in one place, in my entire life.  However, in a decade going to that Court (for hundreds of cases), I never noticed a beauty premium.  The two presiding judges were especially fairminded, which might account for that result.  But, I might have been unaware of the bias.  If you are a practitioner with extensive courthouse experience and would like to share your perceptions and perspectives, please leave a comment.

 Meanwhile, don’t count on the judge being blind to aspects of your appearance that are within your control. Dress neatly and “respectfully.”  Don’t overdo it by trying to be fancy or alluring.  Appearing in a Model Litigant Costume that looks like an act might not win you any prizes. 

p.s.  After reading about the Mobius-Rosenblat study, Media trainer TJ Walker pointed out the importance of a confident voice in making any presentation.  He notes “It’s a lot easier to develop a beautiful voice as we get older than it is to develop a more beautiful face as we age.”

update: See Courtroom Composure from Divorce Guide for Modern Women.

Law librarians, while they can’t give advice, are great sources of information on legal information.  They can evaluate or find ways to evaluate resources to determine when they are helpful and when they are not.  So here is a librarian’s tip on how to evaluate legal sites on the Internet.  The American Bar Association has published “Best Practice Guidelines for Legal Information Site Providers.”  These are for providers but they also show what you should expect from a legal information site.  With these in hand, you will be able to better evaluate legal information web sites and separate the wheat from the chaff…