Five "What if" Scenarios
Editor's note: The following appeared in our October issue alongside the annual Best Lawyers in America list. Each year the polling firm Woodward-White performs an exhaustive search for the country's best attorneys and publishes those names in its "Best Lawyers in America" volume. You can find this year's best New Hampshire attorneys (and the best from all the other states as well) in the search menu located under the "Top Lawyers" heading on the "NH's Best" page.
Most people don't go looking for legal problems to solve, but difficulties involving the law have a way of coming upon us uninvited and unexpectedly. Here are some examples of the kind of problems that commonly ensnare people in the oft-tangled web of the law. We asked some professionals what general advice they might give. Here's what they said.
What If... BANKRUPTCY LAW:
You lost your job six months ago and the unpaid bills are piling up. There's no prospect of a job and your unemployment insurance barely buys food for your family. What can you do to get some relief, short of declaring bankruptcy?
Make no promises
"If you've got a mortgage, you would call your bank or mortgage servicer," says Chris Gallagher, with Gallagher, Callahan and Gartrell in Concord. You may be able to get payments reduced or postponed under the federal Making Homes Affordable Act, he says. "Then I think you go and find work wherever you can get it…There are jobs available in health care and other areas. There's part-time work nearly everywhere if you're willing to work third shift and odd hours."
In the meantime, you should "pay no credit card bill or (any) other bill," says Manchester attorney Bill Gannon, who recommends candidly telling creditors that you simply cannot pay them. Unemployment compensation income cannot be garnished by creditors, he notes.
"Most people in this situation are really good, decent people and they want to tell the creditor, 'Look, if I can possibly pay you, I will." Or 'When I get a job, I'll pay you.' What the creditor writes down then is, 'Promises to pay in full.' That extends the statute of limitations." The legal time limit for collecting on most debt is three years, he says. "If you promise to pay, it starts all over again."
While credit counseling may be helpful and is required before filing for bankruptcy, Manchester attorney Bruce Harwood has a word of caution about debt relief services that offer to consolidate and handle your debt for you. "In many cases people have paid a significant amount of money to an agency that doesn't do what it promised to do and they wind up in the same position as before — minus the fee they paid for a service they never got."
What If...DUI/DWI DEFENSE:
After having dinner with friends and drinking a little more wine than you should, you absentmindedly blow through a stop sign. A police officer witnesses it and stops you. You allow a field sobriety test and pass it. The officer then asks you to take a breath test. You're pretty sure you're not legally drunk, but you're not positive. What should you do?
If you don't know, don't blow
It may depend on what lawyer you talk to. George Campbell of Robert Stein and Associates in Concord says he recommends taking the Portable Breathalyzer Test administered by a policeman at a roadside stop. The machines are so unreliable that the results are not admissible in court, he says, so there is no risk. And a favorable reading would likely persuade the police to end the investigation.
But Attorney Ted Lothstein, also of Concord, advises anyone to refuse the PBT. "It's a no-brainer to say no," he says, to being tested with a device that has "all the technological sophistication of a garage-door opener." There is no penalty for refusing the roadside Breathalyzer, he notes, and an unfavorable reading could lead to an arrest. "And once you're under arrest more bad things can happen."
Like the test with the Intoxilyzer at the station. A refusal there results in a six-month suspension of your license by the state Department of Motor Vehicles. And the suspension sticks, even if you are acquitted in court. Still, Campbell and Lothstein both advise against taking the test if you have any doubt about the outcome. A finding of an alcohol-blood concentration of .08 percent or higher will likely lead to a DWI conviction, a nine-month suspension and a fine. A finding of .16 can lead to enhanced penalties and jail time.
"If you're not certain you're going to blow zero or very close to zero, you should refuse," Lothstein says.
What If...ELDER LAW:
Your 90-year-old mother lives alone. She's still healthy, but she's not as mentally sharp as she once was. You find out she's fallen victim to an unscrupulous salesman and signed a contract for $30,000 in unneeded repairs to the house. The repairs haven't been done yet. If she had to pay, she would have little left in savings. Is there anything you can do to stop the repairs?
"Notify the company in writing that you're not authorizing them to do the work and that you're not going to pay for it," says Andrea Sennott of Robinson, Boesch & Sennott in Portsmouth. "If that's not enough, notify the Better Business Bureau." If there is a question of whether your mother is no longer capable of entering into a contract on her own, you might also notify the Bureau of Elder and Adult Services in the state Department of Health and Human Services. (800- 949-0470 is the elder abuse hotline).
"We've had this situation come up and when we've done that, (the contractors) backed off," says Sennott.
William Pribis of Cleveland Waters and Bass in Concord also recommends notifying the Consumer Protection Bureau in the office of the state Attorney General. "If the person is truly a scam artist, then 99 percent of the time the matter ends right there. It's not worth the headache for them to have to deal with these state agencies."
Dan Koslofsky, who heads the Senior Law Project for New Hampshire Legal Services (888-353-9944), says one of the most common complaints his office receives is about contract and consumer law issues. "Seniors tend to be targeted more and more by unscrupulous people," he says. But that's only one of the reasons the Legal Services workload is increasing.
"Our business is poverty and unfortunately we're very busy right now."
What If...FIRST AMENDMENT LAW:
A talk radio host has been making inflammatory statements about a Congressman in his state, to the point that, to many listeners, he appears to be inciting violence against the Congressman. Are there limits to what a talk radio show host can say?
Free speech and the "chill" zone
"Yes, there are clearly limits," says Manchester attorney Jon Meyers. "But when you're making comments about political figures, that's core political speech." Limits have to be drawn carefully, he says. "Otherwise, you're going to chill free speech." But urging a specific act of violence against someone crosses the line. It is permissible to say of a public figure, "I wish he wasn't on the scene," Meyers says. But not, "I wish someone would shoot this guy and his home address is …"
Meyers recalls a case in which a federal court ordered a militant anti-abortion group to remove a Web site posting that gave out home addresses of doctors doing abortions in a message judged to be threatening. "If you're just giving information out in that sort of violent context, then I think you've crossed the line," he says.
"But that case didn't involve elected officials," says attorney Rick Gagliuso of Merrimack. "That case involved private health care providers …When you're talking about public officials, there's a lot of leeway, though I don't think it goes so far as to sanction and encourage violence against them." But it would have to more than a vague or implied threat to go beyond the pale of the First Amendment. Suppose, for example, the talk radio show host wonders aloud if Congressman X is "worth the powder it would take to blow him to hell."
"My sense is it may not be enough," Gagliuso says. "That type of comment may be considered hyperbole … But that's not to say that in a given situation, a court wouldn't view it differently."
What If...CRIMINAL LAW:
A domestic dispute in the next apartment gets loud. As a good neighbor, you intervene. Before you know it you are in a fight with a drunken, jealous husband who thinks you have been sleeping with his wife. In your struggle to get away you hit the man who crashes into a wall, breaks his neck and dies. You know it was self defense, but the wife seems much more distraught about her dead husband than about your reputation and freedom.
Fools rush in ... where armored guards fear to tread
"If you ask any police officer what kind of case they most hate responding to, where they face the greatest danger, it's domestic violence," says Dennis Morgan of Cooper Cargill and Chant in North Conway. "So a person who's going to stick his nose into that does so, to a certain extent, at his own peril." Unless there appears to be an imminent threat of injury, "the first move should be to call the police."
"You're walking into a situation where chaos has already started to rein, " says attorney Mike Iacopino in Manchester. "And chaos is not conducive to (finding) the truth." But once in the situation described above, the best thing to do is to let your lawyer do the talking. A good defense lawyer can delve into issues like: Did the couple in this case have domestic fights in the past to which other residents in the building might testify? Was there in fact infidelity on the part of the wife? Her credibility could be an issue, Morgan says. Both lawyers stress the importance of remaining silent until your lawyer arrives. "People tend to want to tell their side of the story. It's only natural," Morgan says. "But (police) can turn an explanation of what happened into an admission of guilt."
"I'll bet my bottom dollar," says Iacopino, "that what you think you said and what the police say you said are going to be two different things."