One year into my practice, I answered a Law Journal ad for a part-time attorney for a “pre-paid legal plan.” The attorney who placed the ad was the attorney for a union representing warehouse workers, shipping clerks, mailroom personnel, and local delivery drivers. The lawyer, Stewart Miller, represented the union in labor negotiations and other union matters, and also provided the members with a “pre-paid legal plan”.
Stewart received an annual fee from the union to offer this service. Consider the economics of this: he agreed to provide legal services for everything and anything the members needed, and within his budget, he had to hope they didn’t need too much. His bottom line would go down when he had more cases.
The types of cases reflected the demographics of the membership: debt collection defense cases; Family Court (usually defense of child support claims); immigration; uncontested divorces (which to my nose always smelled immigration-related); and minor criminal cases.
According to the Law Journal ad, Stewart wanted a part-time attorney to work 15 hours per week, including Saturdays from 10–2, plus one court appearance per week. He wouldn’t be there with me, so I would use his office during my “office hours.”
Stewart explained that being on a flat fee for providing “pre-paid legal” services presented a business challenge. We want to provide the needed services but we have to resolve cases quickly and with as little real legal work as possible. Simple economics: if there’s a way to get it done simply, find it and do it. Of course, the clients sometimes had different ideas.
Tom Johnson had a DWI (driving while intoxicated) charge pending in Brooklyn. Stewart had been in court with him several times, trying to get a plea bargain without success. The problem was, Tom refused to plead guilty to anything. Stewart was really mad at him and turned the case over to me with clear instructions: “Find a way to end it!”
There was a court date coming up in two weeks, so I met with Tom on a Saturday appointment. Tom was a quiet Black man, about 50 years old, who worked on a loading dock. He explained how he’d been arrested:
He was at a party with his brother and another friend. They had driven there in Tom’s car. At the party, Tom got so drunk he couldn’t drive, so his brother drove while Tom lay across the back seat. At 3 a.m., they got into an accident with another car, driven by an Israeli woman, somewhere in Brooklyn.
The woman and her husband got out of their car, came over to Tom’s car, reached in, and took the keys. Then they called the police. By the time the police arrived, Tom, his brother, and his friend were all standing outside the car. One officer reached into Tom’s glove compartment, took out his registration, and said, “Which one of you is Tom Johnson?”
“Hiccup…I am,” came the reply.
“You’re under arrest.”
Tom’s brother and friend were screaming that Tom wasn’t driving, Tom was stammering a similar tune, and the officer wasn’t believing it. He put handcuffs on Tom and sat him in the police car. Meanwhile, the other officer was questioning the Israelis. Finally, the two officers conferred and decided to figure out who had been driving. They brought the Israeli woman over to the police car—in the middle of the night after a car accident, with Tom in handcuffs—and asked her, “Is that the driver?”
“Yes.”
So, Tom was arrested and charged. Fortunately, his union had pre-paid legal coverage.
Stewart had gone to court with him, and the assistant district attorney made the usual offer: plead guilty to “impaired” (which is not as serious as “intoxicated”) with a small fine and a small record. Stewart wanted him to plead. He wasn’t going to.
After three court appearances, Stewart gave me the case and strongly suggested I find a way to convince Tom to plead to something.
Herein lies the basic business problem with pre-paid legal: if Tom were a private client, you could point out how much more it would cost to take the case to trial, the risks versus the gain, and why it wouldn’t be worth it. He’d probably plead. Or, he’d pay an appropriate fee, you’d work hard for the money, and give it your best shot. But Tom didn’t have to pay; he just wanted the charges dismissed by the DA or he wanted a trial.
Stewart had a dilemma. I did not have the same dilemma, since I had to go to court for Stewart once a week anyway. I liked going to court on this case. It was far better than Family Court and some of Stewart’s other legal garden spots.
I went to Brooklyn Criminal Court a few times, meeting with assistant district attorneys and their supervisors, trying to get them to drop the case. They wouldn’t—they wanted Tom to plead to something, anything, even a traffic violation. Tom wouldn’t plead to anything.
Actually, if Stewart had let me, we could have filed a written motion to obtain a hearing on the way Tom was identified. This would have been time-consuming and would have prevented me from working on anything else. A private client would have to pay $3,500 for this work, and Stewart wasn’t going to have me do $3,500 worth of work on one case.
Nine court appearances and one year after the arrest, the case had to go to trial. During a pre-trial conference with the Judge, the DA made no secret of his disgust at our not taking a plea. I asked him if he knew what a pre-paid legal plan was.
A defendant has a right to a jury trial, but as a lawyer, you don’t always want one. You can opt for a trial with a judge deciding the facts and the law. This is called a “bench trial.” Strategically, I thought this was a good case for a bench trial, and besides, Stewart would have killed me if I took the time for a jury trial.
At the bench trial, the police officer testified that he arrived on the scene after the accident. He testified about how he determined that Tom was the driver. On cross-examination, he admitted he hadn’t seen Tom driving, that Tom was outside the car when the officer arrived, and that Tom was in the police car with cuffs on when the Israeli woman identified him.
The police testimony wasn’t enough to make out a case, and I knew the DA would call the Israeli woman as a witness. During her testimony, I figured out why the DA had adjourned the case so many times previously. During the past year, his “star witness” had become a mother for the first time, had traveled back and forth to Israel several times, and didn’t seem too happy to be in court.
The DA worked hard to get her to talk about the accident and Tom Johnson, but she was not very convincing. One exchange on cross-examination decided the case:
Me: “Do you recognize the man sitting at the defense table as the driver that night?”
The witness: “I don’t know.”
I was going to ask more questions, but the judge’s face and body language told me it wasn’t necessary.
After the DA said, “The People rest,” all I had to do was stand up and make an oral motion to dismiss the case, and the judge dismissed it.
Stewart may have lost money on this one, but Tom got his money’s worth.
This illustration was created by me, using Dall-E.