ICLEF Introduces: James J. Bell, Amateur Life Coach

Dear Bell:

I am dealing with the worst opposing counsel. I think I can get him to pay attention to my settlement offers if I write him a letter and threaten a disciplinary grievance. Is that a good idea?

Sincerely,
Frustrated in Franklin

Dear Frustrated:

Stop, take a deep breath and sing at least two verses of “Kumbaya” before you write the letter threatening a grievance. On at least two occasions, our Supreme Court has held that threatening a grievance to get an advantage in litigation is a violation of Rule 8.4(d) of the Indiana Rules of Professional Conduct, which prohibits conduct prejudicial to the administration of justice. See e.g., Matter of R.L., 861 N.E.2d 708 (Ind. 2007). Threatening the report of professional misconduct solely to obtain a settlement proposal would certainly fall into this category. Look to Rule 8.3 to determine whether you must report professional misconduct, but you cannot threaten a grievance just to get an advantage in litigation.

Sincerely,

Bell
Amateur Life Coach

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Dear Bell:

Can you settle a dispute? My brother and I are arguing over what kind of beer to get for our March Madness party. Guinness or Miller Lite?  Thank you.

Sincerely,
Confused in Columbus

Dear Confused:

First of all, are you old enough to drink beer, but still live with your brother? Does your mom know you are throwing this party in her basement?

If so, you present an interesting question. Both beers are at opposite ends of the great beer spectrum. One is crisp and golden, and the other tastes like the sweet nectar of the gods, but resembles something closer to mud.

Remember that all beer has a purpose and every beer has its time and place.  The warmer it is outside, the more Miller Lite is appropriate.  Because March Madness happens in one of the most unpredictable months for weather, the safe bet is Guinness.  Simply put, Guinness is good for you and is a wonderful source of vitamins and iron.  Otherwise, Irish babies would not have referred to it as “mother’s milk” for centuries.

Sincerely,

Bell
Amateur Life Coach

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Dear Bell:

On Sunday, January 31, 2013, my hairdresser said to me, “Thank you. Happy New Year.” Is this too late to wish someone Happy New Year?

Sincerely,
New Year in New Castle

Dear New Year:

Your hairdresser needs to let go.  You and I are so 2013 and she is sooooo two thousand and 12.  In my line of work, I see this all the time.  Folks just simply can’t let go of the holidays.

We all need to move on.  By January 6, 2013, the 2013 NFL playoffs have started and it’s 2013 BCS game eve.

On January 8th, are we still celebrating the birth of the Baby New Year?  No.  We are celebrating the birth of the little Baby Elvis (who would have been 78 years old this year).

Once the first weekend of the new year hits, it is probably too late to wish someone a Happy New Year.  I understand that January is depressing.  It is long and cold, but if it depresses us to say, “Awful weather we are having,” maybe we should just start greeting each other with a good old “Roll Tide.”

Sincerely,

Bell
Amateur Life Coach

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Dear Bell:

My client is accused of a crime and wants to take the stand.  I think it will be embarrassing.  What should I do? 

Sincerely,
Desperate in Daleville

 

Dear Desperate:

A simple way to answer this question is to tell you that Rule 1.2 of the Indiana Rules of Professional Conduct states that the decision to testify is your client’s.  However, we wouldn’t be doing our jobs as lawyers if we weren’t helping our clients make this decision.

Here are some considerations to help you and your client decide whether he should take the stand:

  1. Does your client have admissible criminal history?  If the criminal history is admissible and the jury will hear about it only if your client testifies, then (obviously) consider not calling your client.  It is a widely-held belief amongst criminal defense lawyers that if a juror thinks your client was “bad” before, he is more likely to have been “bad” in the case presently before the jury.
  2. Can you control and prepare your client?  Can your client avoid “opening the door” to otherwise inadmissible evidence?  Can your client be respectful of the process?
  3. Does your client have anything to add?   If your defense is “wasn’t me,” “wasn’t there,” etc. what good does it do to have your client subject himself to cross-examination to tell a jury that he doesn’t know anything?
  4. If your client has something to add, is he or she the only one who could add the evidence?  For example, if your defense is self-defense and your client is the only one who could provide that evidence, you may be forced to call your client.  But what if the State put a taped statement of your client into evidence?  Maybe that would be even better than testimony because there would be no cross examination.  If so, maybe you don’t call your client.

If you still think it will be embarrassing to call the client, then advise your client accordingly.  Most trials are won outside of the courtroom and decisions not to present evidence are just as important as any other strategy decision.

Hope this helps.

Sincerely,

Bell
Amateur Life Coach

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James focuses his practice in the areas of criminal defense, attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. As of January 2013, he began serving as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!”. You can follow him on Twitter @jamesjbell

If you have a question for James J. Bell, Amateur Life Coach, please send it to scottking@iclef.org.

 

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