<![CDATA[clayrkpa.com - Blog]]>Fri, 11 Oct 2019 16:33:47 -0700Weebly<![CDATA[Appeals]]>Fri, 13 Sep 2019 17:27:28 GMThttp://clayrkpa.com/blog/appeals
What are appeals and why are they important?

Appeals are an indispensable part of every court system. They rest at the heart
of every fair, democratic, and equitable court or adjudicatory system. They not
only guarantee your right to be heard but also to question any decision against
you and make your grievance known.

But many do not know the power or importance of an appeal. Some feel that appeals
represent an avenue for lawyers to earn more legal fees or satisfy their incredible
desire to win. Many even make the mistake of deciding not to question a
decision on appeal, because of these considerations.

You should understand appeals as a legitimate option for you to pursue in any
adjudicatory process. In fact, in many situations, you may have a fundamental right
to appeal. If you choose not to take the option or if you have a lawyer that is
not skilled in the appellate process, it could severely impact your right, and in
many cases, your liberty.

At the Law Offices of Clayton R. Kaeiser, we understand the weighty nature of the
right to appeal. With over 35 years of experience trying and defending criminal
matters, attorney Clayton R. Kaeiser , has argued hundreds of appeals. His
vast experience has earned him the certification of “criminal trial specialist” and he
is recognized as an expert in both at the trial and appellate stages.

On numerous of occasions, he has helped clients, who thought their case to be
lost, fight unfavorable decisions and have them reversed on appeal. He knows the
value of appeals and will use his experience, both at the trial and appellate stages,
to find you the best outcome.

In this article, you will learn exactly what appeals are and why they are important to
you. You will also learn about their history and how they may be used to secure the
best outcome for you.

What is an appeal?

Appeal challenge the decision of a court or adjudicatory body. When a decision
is made that is unfavorable to one of the parties, the decision may be
submitted to a higher court for review. The process of submitting the decision before
the higher court is known as an appeal.

For appeals to exist, there must be some sort of organized court system. If there
were no higher court to review the decision, then there would be no talk of appeals.

All states in the US have such court systems and the federal level as well. In
Florida, for instance, the court system is comprised of county courts, circuit courts,
district courts of appeal and the Florida Supreme Court. Only the courts at the
appellate level ordinarily hear appeals. This means that appeals in Florida will
ordinarily go to any one of the 5 district courts of appeal or the Supreme Court.

In certain cases, you may have a right of appeal. This means that failing to take
the option of appeal in those cases would amount to waiving your guaranteed
right. Such cases are called appeals “as of right”. Examples of cases where you have
a right of appeal include an adverse judgment in a criminal trial.

In other cases, appeals are only allowed “by permission”. In this category of
cases, you need to obtain the permission of the higher court before you can
submit the case for review. An example of such a case is an appeal from an
interlocutory decision of the court. Interlocutory decisions are not final, they are
made before or during the trial e.g. decision on a motion raised by one party
against the other.

History of appeals

Appellate courts have existed for thousands of years. Many ancient civilizations such
as Hammurabi’s first dynasty of Babylon had appellate courts. The monarch himself,
sitting with his governors, served as the final court of the land.
The essence of this system of appeals ensured that everyone could receive the
King’s Justice. Courts were only created to allow more people access to justice, but
the monarch had the final say on that justice.

In much the same way, modern courts constitute a hierarchy. The more
experienced judges sit in the higher courts where they can review cases from lower
courts and ensure that justice is done.

The mechanism of appeals did not always exist in the US though. The first systems of
federal appellate courts, though created in 1789, did not formally recognize a right to
appeal  until 1889. Today, while you may not have a right of appeal on every decision
of a criminal court, there is a firm recognition that parties may have a right to appeal.
Importance of appeals

Appeals are an incredibly important part of the Florida and US court systems.
Here are some reasons why:

• Fair judicial process : Every American has a fundamental right to fair hearing. To
help achieve this right, trial court decisions should be subject to review. If there
were no provision for appeals, then trial court decisions would be final, even
when they involve clear errors. This would certainly make for an unfair judicial
process and will result in undue hurt to a lot of people.

• Question and test the law : Appeals are a crucial tool to test the provisions of the
law. Many controversial provisions of the law have existed for years, causing
hardship. Appeals help question these parts of the law so their flaws can be

• Shape legal precedents : Appellate courts are important to helping shape the law.
In many appeal cases, these courts have an opportunity to consider controversial
or untested portions of the law and clarify these areas. Attorney Clayton R.
Kaeiser has argued many appeals that have helped make the law better.

• Avoid error : Judges are human and, just like everyone else, also make mistakes.
But their mistakes are significant in criminal cases, since your liberty or property
is at stake. Appeals enable your criminal lawyer to challenge these erroneous
decisions and turn them around in your favor.
Common grounds for appeal
Grounds for appeal are the reasons for which a judgment is being challenged at a
higher court. There are many reasons why this challenge may be made. The include:
• Improper exclusion or inclusion of evidence
• Incorrect jury instructions
• Juror misconduct
• Sentencing errors
• Decision made in ignorance of a material law
• Lack of sufficient evidence to support a finding of guilt
• Error of law or fact

Appeal case studies

At the Law Offices of Clayton R. Kaeiser, we have helped many clients
overturn unfavorable decisions from the trial court on appeal. Some of our past cases

United States v. Machado : In this case, the defendant was on trial for white
collar theft and was convicted at the trial court. Attorney Clayton R. Kaeiser
appealed the decision and argued strongly, convincing the court to overturn the
lower court’s sentence.

United States v. Ben Johnson : The defendant was convicted at the trial court and
accordingly sentenced. Attorney Clayton R. Kaeiser intervened in the matter,
writing an appeal brief for the defendant, whose conviction and sentence were
eventually reversed on appeal.

United States v. Levy : The defendant received an unfavorable decision. Attorney
Clayton R. Kaeiser successfully appealed the case to the US Supreme Court
through a writ of certiorari. The Supreme Court granted the writ.

As all these cases show, decisions at the trial court have a chance of being reversed
on appeal. We understand this and that is why we always take the long view of
our clients’ cases.

Get in touch with us

Our policy is to prepare your case thoroughly so you will have the best chance of
success, both at trial and on appeal. Call us on (305) 371-4989 to schedule a free,
no-obligation consultation today.



<![CDATA[September 11, 2001]]>Wed, 11 Sep 2019 14:39:29 GMThttp://clayrkpa.com/blog/september-11-2001

         I drove up to the Broward County courthouse early in the morning for a routine bond hearing.  We ended up waiting most of the morning and never did start the hearing.  Our Judge was Peter Weinstein, one of the better judges in Broward County and usually also one of the most punctual judges.  But Judge Weinstein did not take the bench that morning.  Every few minutes, his bailiff appeared from a side door and whispered to the Clerks and BSO Court Deputies, while the growing crowd in the courtroom milled around in its own impatience.  Without TVs and radios, we soon found out the awful through the old-fashioned courtroom grapevine:  our country had been attacked.

         The date was September 11, 2001, and the world would never be the same again.  Hard to believe it all happened 18 years ago.  My daughter not even alive then, not even a hint of her existence.  Those of us who lived through the day will never forget it, huddled with others around a T.V. watching scenes that could have been lifted from a horror movie.  It inspired fear and fury, emotions that have come to define the era after the attack.  Somehow we managed to survive the tragedy without blowing up the rest of the world but the option always hovers over us.

         While in law school in New York, I used to go to the World Trade Center for pro bono representation of unemployment compensation applicants in administrative hearings.  We had our “Barrister’s Ball” in the Windows on the World restaurant at the top of the North Tower.  Traveling up the elevators (you had to switch to a new elevator bank about halfway up) felt like moving into another world, and the view from the top confirmed the belief.  One of my law school classmates made a fortune in the private equities market and celebrated his good fortune by moving his business into an office in the world above the clouds.  Needless to say, his good fortune turned ironic on September 11, as he experienced the attack from his office window and never made it home from work.

         The world changes and the world moves on through its changes.  People change too, but some of the changes we all share, and the September 11 experience is the biggest shared change of my lifetime.  The only thing coming close was the JFK assassination, and, while I remember it, I was only six years when it happened.  I hope not to live through another shared change the magnitude of either.
<![CDATA[Why Veterans Hate the Courts]]>Wed, 17 Jul 2019 16:23:37 GMThttp://clayrkpa.com/blog/why-veterans-hate-the-courts
Legal Abuse Syndrome and how it affects veterans in courtrooms
Combat veterans tend to face multiple challenges upon their return to civilian lifestyle. In the past decade, extensive research has been conducted upon Legal Abuse Syndrome in veterans as a sub-symptom of PTSD. The major reason behind multiple studies lies in the fact that veteran arrests for criminal offenses have seen a manifold increase in the past few years. However, the primary question to address here is whether it is justified to treat combat veterans the same way as civilian criminals?

What is Legal abuse?
Due to the strict nature of the judiciary system, each link of the judiciary chain is susceptible to being the reason behind Legal abuse. From litigators and judiciary to law enforcers and attorneys, everyone has a considerable potential of damaging the mental health of combat return veterans. Legal Abuse is the result of malicious motives of the parties involved and includes ill-treatment of the accused, vexatious litigation, fraudulent attorneys, and corrupt judiciary. This unfair series of events and lack of empathy thereof results in the development of Legal Abuse Syndromes in the criminally accused, be it combat veteran or a civilian.  

Cold Nature of Legal proceedings:
As much as anyone would expect the courtrooms to practice empathy towards the victim and accused, it is hardly the ever the case. The situation gets much more difficult when the accused is a combat veteran with a record of lawful and legally justified homicide. Judges, litigators, attorneys, and law enforcers are much likely to turn the head of the gun towards simply because they are accused of a crime. It is as unfair as it can get and results in Legal Abuse towards the veteran. More often than not, courtrooms serve as chambers of lies, frauds, corruption, abuses, and deceit, which are the major contributors towards the development of Legal Abuse Syndrome.

Combat veterans are unlike civilians
Undoubtedly, combat veterans have a completely different lifestyle than civilians. The fact that they have served the country in a violent arena often prevents them from accepting judicial jurisdiction over their behavior. In extreme cases, the cold treatment from judiciary system personnel leads to the development of despicable feelings of distrust and hatred in the accused veterans. The presence of PTSD serves as a trigger resulting in an explosion of Legal Abuse Syndrome’s symptoms. Since veterans are unlike civilians, they fail to accept being treated like civilian criminals.

Coercive behavior of Veteran courts:
Many State court systems have recognized the need for special treatment of veterans and have established special Veteran Courts. These Courts achieve the main goal of segregating combat veterans from civilians. Even in Veteran Courts, however, the coercive nature of existing legislation and attorneys often leads to mistreatment of veterans and leads them to accept responsibility for crimes they did not commit. This makes things even worse.

Challenged lifestyle:
The rigorous combat training designed to program our soldiers for the heartless killing of enemies is something that becomes deep-rooted in the personality of combat veterans. These people rightly believe themselves as the saviors of the nation and any ill-treatment coming from the judiciary system directly affects their decision to devote themselves to the nation’s security. As a result, combat veterans tend to question every past, present, and future decision, which results in more significant challenges in courtrooms regarding damaged reputation.

In short, Legal Abuse Syndrome in combat veterans is especially malignant. It also hints at the dire need of instilling honesty and empathy in veteran courtrooms for the sake of eliminating mental disorders.

<![CDATA[New Age of Women Lawyers]]>Mon, 15 Jul 2019 18:58:37 GMThttp://clayrkpa.com/blog/new-age-of-women-lawyers

How are female lawyers inspiring young girls to achieve their goals?

More about the importance of women in the legal profession, their influence, and where the future’s taking us.

Law has always been regarded as a patriarchal industry. However, things started to change a few years ago, with more opportunity for women to carve stable and fruitful career paths in this industry. Back in the year 2018, the American Bar Association (ABA) reported that 36% of legal professionals consisted of women. This is a net increase compared to estimation from previous years, as the numbers used to be much lower. Today, the status of women in the legal business is on the rise, and the numbers are on the increase. Many more women are pursuing careers in the legal world. The best part is, this 'isn't only something 'that's happening in countries such as the United States. In fact, this is a wonderful global trend. The legal profession is opening its doors to women. Even in countries where it would have deemed a nearly impossible career choice, the situation is changing. There are now more options for those who are looking into this professional choice. For example, the number of female lawyers in the USA is 486,730.

The progress doesn’t end with lawyers, women have also been making great strides when it comes to judge as well. Throughout the USA there are approximately 18,000 judges, women make up rough 6,000 of them or 33%. Women trial lawyers must also occasionally deal with opposing counsel and judges who make inappropriate or stereotypical comments. Many women have reported being patronized and called “honey” or “dear” or referred to by their first name in the courtroom. Indeed, a Defense Research Institute survey found that 70% of women attorneys experienced gender bias in the courtroom. With more women throughout the legal field and a commanding places, that will be greatly reduced.

Undoubtedly, it is very important and significant that women are increasingly gaining a better status in many industries. This also includes the legal profession on a local and international level. There are many more opportunities for women to get a good education and pursue a career. As a result, there are higher chances for these women to achieve positions of power and influence. The sort of diversity is good for community because it brings in more authenticity and fairness.

The changes are need from top to bottom, from clerical personnel to judges, let’s not forget the gatekeepers of the industry, the ABA. Historically the ABA predominantly male and white. That’s has caused many problems, barring different races from joining to even lawsuits. The first women were admitted in 1918 and the ABA did not grant membership to people of color prior to 1943, according to its online timeline.

It's so great to see that there is a lot of support for women in the legal industry. For instance, the web now hosts many communities and websites. These platforms are specifically dedicated to the empowerment of female lawyers and other women in the legal sphere. In addition to that, the world recently hosted the very first Women in Law Leadership Event. This remarkable event took place in San Francisco, California at the top of the SalesForce Tower, where it made headlines in a very positive light. The conference was attended by women from various countries, as the event received the enthusiastic support of businesses, politicians, and various global organizations. With attorneys and executives, to share life journeys, obstacles and solutions that got them to where they are today.This is a sign that women in the legal world are enjoying a healthier status than ever before.

Filmmaker Michael Moore recently released a poignant documentary titled "Where To Invade Next?" which dealt with various social topics. One of the most exciting segments of the document was the section discussing female leadership and women in power. In the movie, it is clear to see that countries with equal opportunities for women tend to have much better social and economic stability. This is especially when women are enabled to take on decision-making positions. In much the same way, the legal sphere as a whole can benefit from the female perspective, subverting the age-old, typically patriarchal structures which have long been a stale pillar of the legal profession through the whole world.

In addition to the positive contributions they might foster in various areas, women in law can also inspire the younger generations. Now more than ever, young people need "real" role models, that aren't just social media stars or celebrities. It's crucial, especially for young girls, to value their self-worth, and see that they can go far by using their intellect. Leaving many inspired and with an identifiable route to pursue law careers. Rather than having to be dependent and complacent, young girls see they can take control of their lives.

This is precisely why female lawyers can be very inspiring from young girls around the world. They are positive influences, showing young people that they too could have many opportunities in their lives. In other words, success is attainable, regardless of their background. Today, a female lawyer is more than just her job title: 'it's a true inspiration. A role model for the younger generation to look up to, as they are in the process of figuring out their present, and their future.

In conclusion, the legal industry can no longer ignore the relevance of women. The vital contribution that they bring to the table is precious and absolutely undeniable. Although we are in a very good place right now, the road towards widespread egalitarian relationships between male and female professionals in the legal sphere is still quite long. With more and more women enjoying prominent roles, this industry is in a very good place.

'There's much work to be done, and there are some challenges that need to be addressed, in order to further open that door and let some fresh air in!

Reference links and information:


<![CDATA[Legal Abuse Syndrome]]>Tue, 09 Jul 2019 13:53:16 GMThttp://clayrkpa.com/blog/legal-abuse-syndrome
With all the talk and advancement in the mental health space, beyond Kanye changing his hair color, there’s a syndrome that’s been looming in the shadows of the legal industry for decades. Legal Abuse Syndrome (LAS) is a subcategory of Post Traumatic Stress Disorder (PTSD) but its occurrence is rarely publicized. Similar to the fight on the battle field where soldiers endure high stress and near death experiences, LAS is a natural response to cumulative trauma caused or exacerbated by experiencing injustice during litigation. The injustice comes in many forms, from false statements going on the record to being coerced to take a plea deal, and creates a feeling of helplessness. Everyone has a way to deal with their issues but it is important to seek out help and find ways to relax and enjoy yourself when these feelings set in.

Whether it’s your first year practicing or your 30th year, walking into the courtroom is a stressful situation, starting from the layout and seating of the judge and jurors to the way the prosecutor is postering at you. I wrote an in-depth article analyzing how the design of the courthouse is meant to enlist a submissive role from you. This scenery is a subtle force on the defense team and plaintiff to make them seem wimpy and crummy. The court is meant to represent justice and inclusion but once you’re in the courtroom and ready to make your arguments the tale is different.

Lawyers have an image in the public as dishonest people, that image is a tough one to disprove even though there are honest ones. Many times prosecutors and judges are less than honest. Prosecutor have sometimes withheld pertinent information about evidence or juror selection. Inaccurate claims have been put on the record as facts, causing a skewed jury perception of the defense team. That taint remains in the subconscious and makes it nearly impossible to achieve an unbiased resolution. Rulings like this can wreak havoc on the lawyer and plaintiff.  And, as any trial lawyer knows, the reading of a jury verdict is the most stressful moment of all.

The stakes are different for each party but the psychological abuse is not. The key moments when PTSD sets in can be monitored with biofeedback equipment, from sweat to accelerated heart or even heart attacks.  I imagine the same can be done with LAS.  Along with all the things going in an attorney’s personal life, the addition of the stress from litigation can exacerbate or be the factor to cause LAS. Attorneys must learn how to deal with stress in order to survive LAS and lead happy lives in retirement.  I’ve known way too many very skilled and successful trial attorneys who have not made it to retirement.

Over the years, I have developed my own mode of stress management, and can attest to its success by pointing out my present age (62 years old) and the fact the black hair you see in that photograph on my website is natural and not dyed.  I divide my stress management into three main areas:  (1) client relations;  (2) case load control;  and (3) diet and exercise.

Maintaining good client relations is essential to both a successful practice and good health.  Not only does an attorney have an obligation under the Rules of Ethics to respond to clients and keep them informed about their case but also a special duty as a professional to do the best job possible to defendant and advance the client’s interest in the legal matter at issue.  If you do these things, your client should have good reason to be happy with your services.  Unfortunately, some clients are very hard to please.  With these people, I do everything I believe ethical and legally possible to follow through on the client’s wishes.  Sometimes, even this is not enough.  In these cases, I will tell the client it is better for both of us, if the client finds another attorney.  Sometimes, even a big fee is not worth the aggravation and long-term consequences to my health and reputation.

A good part of managing client relations is to manage my caseload.  I used to work in the Public Defender’s Office with caseloads sometimes approaching 100 and know the stress and unhappiness this can cause.  In private practice, bigger caseloads mean bigger revenue but, again, I’ve found this not to be a long-term benefit.  With more cases come more “problem clients,” more headaches, and more unrealized expectations.  My caseload now consists of five (5) trial-level cases, six (6) post-conviction cases, and five (5) direct appeals.  I know all of my clients’ names and can spend more time on each of their cases, which, in turn, leads to more happy endings to the cases.  This also allows me more free time away from the stress of my law office.  I also can justify higher fees to each of my 16 clients, because I am spending more of my billable time on each of their cases.  One important message I would like to give all potential clients of criminal defense attorneys—quantity does not equal quality, and, if you want a cheap lawyer, you get what you pay for.

Finally, stress management must also include looking after your own health.  This means watching what you eat and drink and keeping your body fit.  As we get older, maintaining health becomes more difficult, but, in the legal profession, we must keep ourselves able to deal with the mental and physical stress associated with LAS.  One of the new trends in stress management involves “mindfulness” therapy and meditation.  I haven’t participated in this to any great degree (I still try to run at least 5K every morning) but know people who swear by it.

Under the American with Disabilities Act, a disability can be any sort of impediment that requires accommodations to be made so you can perform with full effectiveness. Protracted litigation can feel like a war of attrition because of the constant arguing and psychological warfare. This same warfare can be detrimental to your health, causing long and short term side effects. What that means is any condition, it doesn’t have to be transitory to qualify. This applies in the courtroom, it requires the judge take on a ministerial role, the judge is now mandated by law to accommodate to your specific needs as a person suffering with LAS. The same way there’s requirements for physical accommodations, there are also testimonial and participatory accommodations that must be made. All this is to ensure that everyone is able to seek justice and have full executive functionality during that process. Discrimination occurs when any entity cover by the Act, treats an individual with a disability unfavorably because they are disabled. Any form of discrimination should be taken up with the ADA access coordinator or directly to the United States Access Board. I know personally of one attorney who was able to use LAS to support a workman’s compensation claim (at the Public Defender’s Office). Is LAS a proper basis for an ADA claim? Time will tell.





<![CDATA[Asset Forfeiture : Policing for Profit]]>Wed, 12 Jun 2019 18:17:25 GMThttp://clayrkpa.com/blog/asset-forfeiture-policing-for-profit
On July 12, 2017, The Department of Justice announced a policy that makes it easier for police to take people's property without charging them with crime, overriding Florida laws banning this practice. That policy is called civil asset forfeiture, and it allows police to seize any property they think could have been used in a crime.

In 2016, the Florida Legislature had unanimously passed a law banning police from taking people's property under most circumstances unless they are charged with a crime. Regardless, year after year police departments profit over 20 million dollars from their use of the forfeiture process.

The legal standards for the different types forfeiture are distinct. Criminal forfeiture can only be conducted if a person is convicted of a crime and if the property's connection to that crime is proven. Civil forfeiture, in contrast, is an action against the property, rather than its owner. Therefore, this type of seizure is not contingent upon a conviction, and the standards of proof are often lower. Administrative forfeiture is a civil proceeding that is instituted by a governmental agency, allowing the federal seizing agency to forfeit the property without judicial involvement. This type of forfeiture is handled internally by the government and does not involve court litigation. Compared to the other two other types of asset forfeitures (civil forfeitures and criminal forfeitures), administrative forfeitures are prevalent, accounting for about 80 percent of all federal forfeitures.

There are numerous state and federal statutes that trigger asset forfeiture, allowing the government to seize an asset by providing sufficient evidence linking the property in question with some illegal activity, regardless of whether the connection is substantial or not. As long as there is a certain level of probable cause, then this is enough for the government to seize and forfeit an asset. To prevent the government from seizing an asset, the rightful owner should act in time by hiring an asset forfeiture attorney and claiming their property rights.

One active civil forfeiture case involves Jim Ficken, a 69 year old retiree in Dunedin, Florida, who left his friend to attend to his grass while he was tending to his deceased mother’s estate in South Carolina. Unfortunately during his visit, Jim's friend passed away and there was no one left to mow it. During that time the grass grew pass the allotted height and a code officer noticed. Dunedin has a repeat offenders policy, the officer invoked it and the city began to assess fines immediately. Each day that went by with the grass being uncut Jim was fined $500 without a phone call or mail from the city notifying him. A few weeks later Jim was standing outside his home when the code officer arrived to check his yard, the officer told Jim, "You will get a big bill from the city." Jim is at risk of losing his home because he doesn't have $29,833.50 to pay the insane fines.

Black people account for 13% of the population but somehow make up more than 65% of asset forfeitures. Police departments and municipalities make it an expensive endeavor to challenge let alone reclaim the "seized" property. There are a couple of likely reasons blacks are targeted at greater rates. First, they are more likely to run businesses like barber shops or yard care that operate on cash payments. And second, they are more likely to be pulled over in traffic stops, said Ngozi Ndulue, recently a national NAACP senior director, now working at the Death Penalty Information Center.

Prior to the change in law in Florida and in many other states, the owners of the property had to prove innocence—even when there are no charges yet filed and certainly before there is any conviction. In fact, in over 80 percent of all civil asset forfeiture cases in the United States, the owners of the property were never even charged with any crime. Yet law enforcement can and does keep the property. The hurdles owners have to pass to challenge the forfeiture are legally complex and expensive.

As hard as it is to believe, civil asset forfeiture has been an important law enforcement “weapon” – or better termed, a legal way to fund law enforcement coffers. That is what happens to the assets seized – the “proceeds” go directly to the seizing agency. Unamerican? Perverse? Legal theft? Yes, and more. And the United States Supreme Court agrees!

On February 20, 2019 and in a unanimous decision, Timbs v. Indiana, 586 U.S. ___ (2019), the Supreme Court ruled that civil asset forfeiture is a violation of the Eighth Amendment’s prohibition against excessive fines. The ruling is applicable to all 50 states under the Fourteenth Amendment. Although it received little press, this is an important decision. Civil asset forfeiture not only has become a major source of funding for many law enforcement agencies but has been used as an intimidation tool by the police. Under this ruling, civil asset forfeiture is prohibited in all 50 states. The decision, authored by Justice Ginsberg, is short and sweet.

Justice Ginsberg observed that the Excessive Fines Clause (under the Eighth Amendment) dates back to the Magna Carta (for those who forgot their history lessons, that document was written in 1215) and has carried forward throughout English and American law to the modern era where it was enshrined in the Eighth Amendment. Justice Ginsberg noted that there is a good reason the prohibition against excessive fines have been a continuous feature of Anglo-American law: excessive fines weaken the citizenry’s civil liberties to benefit state power and revenue. Unfortunately, all these hazards became a feature of civil asset forfeiture in the United States. It is, quite frankly, surprising to me that it took this long. Law enforcement has been stealing from the public under the guise of civil asset forfeiture for over 40 years.



<![CDATA[The Surprising Connection Between Churches and Courthouses]]>Wed, 29 May 2019 03:20:19 GMThttp://clayrkpa.com/blog/the-surprising-connection-between-churches-and-courthouses
The two institutions share similarities, rooted deeply in culture and history.
The separation of Church and State represents a pillar of modern Western society. Today, we all enjoy freedom of religious expression. People base their lives and morals on more than just rules and laws. They have views, ideas, and beliefs. The Government, on the other hand, acts by following a spiritually unbiased system.
Having said that, there are still many similarities between courthouses and churches—especially in this country.  In fact, in America, law has become our secular religion.  The affinity between law and religion in the United States dates back to the formation of the country, tied to the evolution of American society.
Both churches and courthouses are very important places for our communities. In these buildings, people gather, listen, come together, and perform useful social functions.
In some ways, the courts and the Church are almost mirror images of one another. These similarities also affect the sheer layout and design of the rooms which host them. For example, the judge would occupy a very similar place as a minister would in a church. They both hold authority positions, and their location matters. Their actual physical placement within the court can highlight their particular status.  The jury, sitting to the side of the court area, occupies the same position as  choir in a church.
A long history.
In ancient history, the Church acted as the core of the community. This was true long before the legal system became an established force, ruling our activities as it does today. In ancient times, religious leaders determined the administration of justice and other matters. In addition to that, the Church undertook important clerical tasks, such as recording the population through censuses.  To this day, we owe a lot of our historical and genealogical knowledge to clerical archives!
Over time, governing bodies, and religious authorities acquired different roles. The separation happened gradually, usually prodded by organized resistance to state-sponsored religion.  It led to the legal system as we know it today. The heritage of such a long history can still be witnessed whenever you walk into a courtroom, or a church.
Beautiful buildings really make an impression.
Churches exemplify the most stunning remnants of historical eras. Designed to be visually striking, aiming to make an indelible impression on visitors, churches became the focus of each generation’s best architects.  Courthouse buildings, especially the older ones, have layouts closely resembling those of churches. They usually have a beautiful entrance, often adorned by columns or arches, as well as a tower, which makes the building closely identifiable within the community.
Much like a Church building, an American courthouse aims to be highly recognizable. Back when cities were smaller, courthouses became the most important buildings in the whole settlement, and probably some of the earliest “proper” buildings to be established, before massive population spikes and big residential constructions would eventually swell the size of urban areas.  In some communities, courthouses are highly coveted historical buildings, which stand out as important landmarks. A courthouse, like a church or a library, occupies an important location in a city and, in some cases, can also become one of its most famous features, even attracting tourists and other visitors!
The separation of Church and State.
The idea of Church and State as two distinct concepts mainly comes from Protestant Christianity.
Before the Protestant Reformation, there was not a clear dividing line between government, legality, and spirituality in Europe.  Due to the unity of Church and State in the feudal system, important legal and political decision-making only occurred with the direct influence of spiritual leaders.  Because of this, State actions were deeply clothed in superstitious beliefs, such as the interpretation of various natural phenomena.  During the is time (referred to as The Dark Ages, for good reason), religious leaders in the Christian world had a massive impact on other spheres, such as politics and law. However, the separation between Church and the legal system inevitably began, as various Protestant sects split from the established (Catholic) church, the established (feudal) State, and, necessarily, the established economic system.  In this way, as scholars like Max Weber recognized, the Protestant Reformation and the rise of capitalism were one in the same.
The American Influence.
As noted supra, the capitalist revolution represented a break from past religion and past government, which had acted to restrict individual freedom.  Nowhere is this better illustrated than in the American War of Independence and the United States Constitution, which forever codified the rejection of established religion and the separation of Church and State.
The idea of a secular government became even more solidified in the world during the massive wave of immigration to the United States. Many people moved from Europe to the new world, in search of religious freedom.
All these different spiritual minorities needed an unbiased, secular legal system and government, as a way to preserve individual religious freedom and personal liberty. These are the most important values forming the foundation of American government (copied by many other countries throughout the world) from the Founding Fathers to the present day.
Because of these foundational tenets, American legislatures also sought to prevent the diversion of significant government funding to parochial and ecclesiastic educational facilities. This factor represented another driving motive for the distinct division between Church and the State.  The First and Fourteenth Amendments to the Constitution virtually require it.
Conclusions and final thoughts.
While the law and the Church are two different bodies, they share common roots. They can be traced back to the very beginning of human society. These institutions to protect an essential need of people: coming together. Both the Church and the law gave us a common framework, a way to relate to one another, even without necessarily sharing deeper personal connections. The need for a central authority, the involvement of the people, the reverence for power, and the respect for certain roles are all shared values. These have translated to both the religious and the legal fields over the ages.
After gaining its independence, the United States became the first country in the Christian world to demand a clear bulwark between the Church and the State.  The First Amendment established a clear freedom of religion, but this very freedom assured that no single religion had precedence over any other religion.  The Constitution rejected the concept of a state religion and established a form of government independent from religion itself.
Without religion to influence government, the United States became a nation of laws, and laws themselves became a substitute for religion.  In this country law has become a secular religion and the courthouse its house of worship.  When you walk into a Federal Court, you are walking into a national church.  Hence the reverence and respect expected of the congregants who enter into an American court.  Having myself practically grown up in church, I often marvel at the similarities between a Federal courtroom and the sanctuary of a Protestant Church.
Links and references:


https://www.parkercountytx.com/  (left)

16thstreetbaptist.org/   (right)
Max Weber, The Protestant Ethic and the Spirit of Capitalism

<![CDATA[Referrals And Their Role In The Legal Field]]>Sun, 12 May 2019 15:16:00 GMThttp://clayrkpa.com/blog/referrals-and-their-role-in-the-legal-field

Learn more about the importance of referrals, and how they can help your
law firm and legal profession grow and generate business.

The world of marketing is changing at a high-speed page. However,
even with the latest technologies, one of its fundamental pillars
remains relevant to this day: referrals.

Let's start with the very basics. What is a referral? To put it simply, it is
the act of referring someone to a third party. For instance, if you are in
need of financial advice, your attorney might be able to refer you to a
business consultant.

Referrals are vital to professionals across various areas. In fact, they
are particularly significant for attorneys! In fact, some industry insiders
say that referrals are the best marketing tool available in the legal

How Can Attorneys and Legal Professionals Benefit From Referrals?
One of the best ways to increase the effectiveness of your referrals is
to establish great relationships with your clients. In other words,
happier customers might be more likely to recommend your services
to others in their local circles. A client who is satisfied with your work
will vouch for your skills, and it will refer you to others through word of
mouth, social media, and other means.

In some cases, referrals can be much more potent than traditional
advertisements. Consider this: would you rather trust a law firm
recommended by a close friend or one you saw on a billboard?
People tend to trust advice and suggestions coming from friends and
relatives. A positive experience can do so much the growth of your
legal business.

Running Effective Referral Campaigns
In order to harness the full potential of referrals, you can't sit there and
hope your clients will spread the word. You need to encourage people
to refer you and reward them for doing so.
Many law firms offer exclusive perks to people who bring them referral
business. Some of these might include free billable hours or a lower

It's also critical to establish good communication outlets to reach
people with your referral campaigns. A good mailing list still works
wonders, but you can also harness the potential of other channels,
such as social media platforms. Getting people to refer your business
is only half the way to the top of the mountain. You need some extra
work to get to the top!

To increase your chances of getting great referrals, make it easy on
your customers to refer you. If the process of referral is clumsy and
complicated, your customers might not want to waste their time.
Remember to implement a process, to make sure that referring you is
as simple as possible.

Affiliate Referral Programs
Many professionals in the legal field use affiliate programs as a way to
secure more referrals. In most cases, good affiliate programs are a
"win-win" situation for all parties involved. Some affiliate marketing
programs enable people who refer your business to earn some unique
perks. In some cases, they can even earn a commission on the
business acquired through the referral.

Professional Networking
It might seem strange to get more business from your competitors.
However, people in the legal field can be the best source for new
referrals out there. In fact, referrals in the legal industry do not just
come from happy customers. Networking with other professionals is
also very important. For example, other attorneys can be a great source
of referrals. This is a classic example of "you scratch my back; I
scratch yours." In this scenario, legal professionals help each other
out with mutual referrals.

Attorneys and other professionals in the legal field often collaborate.
They might have a referral agreement in place to support each other's
businesses. This also enables them to gain a higher flow of

Are Referrals Working Out For You?
If you want to make sure that your law firm's referral program is
working, it is important to track data and relevant information. Make
sure to note how expensive each referral acquisition is, and track
everything. This is the best way to make sure that your referral
program is actually paying back. A good management system is the
best way to keep track of your referrals. For best results, you'll need
something that goes beyond your average spreadsheet.

It might also be confusing to use the same management tools you use
for billing and case management. For this reason, creating a specific
system can be your best approach to avoid clutter. Most companies in
the legal field think it's crucial to build a management solution to keep
things tidy.

This process can help you keep track of your referrals and potential
business leads. Understanding where your clients come from is also a
great way to learn more about your referrals.

Don't be afraid to ask your clients how they learned about your
business! You can use a form or simply ask a question online, so you
can gather the data as quickly and as seamlessly as possible.

"How did you learn about our law firm?" is a simple, yet powerful
question. It could bring so much to your future marketing efforts, and
help you enhance your referral rates by further refining your strategy.
In conclusion, referrals are still a very important marketing tool in the
legal field. Whether you represent a law firm, or you are an

independent professional, you can grow your business organically
through clever referral systems in place. You should remember to
consider analytics carefully, so you can fully understand how your
business is benefiting from the referrals you’re getting, and whether
it’s worth your efforts.

Sources & References:



<![CDATA[Victory Day (May 9)]]>Fri, 10 May 2019 11:56:02 GMThttp://clayrkpa.com/blog/victory-day74 years ago yesterday (May 9, 1945), what was left of the German High Command formally surrendered to the Allies in Reims, France, ending the conflict in Europe and bringing to conclusion one of the most reprehensible and ruinous regimes in World History. On behalf of all those who died and were murdered, I join my Jewish Friends in praying and saying "Never Again."

Clayton Kaeiser
<![CDATA[AI In Law]]>Fri, 03 May 2019 22:17:25 GMThttp://clayrkpa.com/blog/ai-in-law
In most countries around the world, the laws that are written as very clear – they are there in black and white, and there’s no room for interpretation. But as human beings, there is a constant need to ensure that things are correct, things are right, and things are as they should be.

This leads to a need for court rooms and judges, trials by jury, and a decision on guilt or innocence being made as an interpretation of the written laws weighed up against the actions of an individual.

In some cases, people have been convicted for crimes that in later years were deemed to not be crimes at all. For example, before California’s Proposition 64, the possession and use of marijuana was illegal in the state. In 2016, it became legal.

This simply meant that for those with prior convictions in relation to marijuana, they could have them struck from the record – an important move, as convictions of that nature could impact the opportunity to get a job.

Entering the Digital Era
The city of San Francisco had been digitizing its files since 1975, so it would seem to be a simple matter to flick a switch and update all the records that were held, quickly removing the convictions. Unfortunately, that’s not how digitization works.

What San Francisco (and many other cities) had stored was effectively a photograph of paper documents, viewable on a computer, but completely unreadable by a computer. To have a conviction removed, an individual must fill in the paperwork to begin the process, and that paperwork may not be simple at all.

San Francisco estimated that around 10,000 people could apply to this process, but by 2018 a total of 23 people had identified themselves. The city took matters into their own hands and spent a lot of time manually going through the documents and found 1230 eligible people (read more). There had to be a better way.

Through the use of optical character recognition (OCR), automation, and artificial intelligence, a program was devised that could process the digitized records and attempt to understand what they said. If a record included mention of a violent crime, the program discarded it as the individual would be ineligible. If there was any doubt about the content of a file, a human was notified for further input. But overall, the software ran itself and produced a result.

Within minutes, it was able to identify another 8000 people who were eligible to have their convictions cleared.

A judge signed them off in one go, and the criminal records of thousands of people were suddenly revised, opening new horizons for each one – and saving the city (and those individuals) a massive amount of work.

How does it work?
OCR has been around for quite a long time, but without the ability to understand, it is mostly useless for tasks of this nature. The ability for a machine to learn, and to thereby understand, gives the opportunity for thousands of documents to be processed by a tireless machine that doesn’t make mistakes in the same way that a human might. The AI industry is prone to calling these algorithms “robots”, as the dictionary definition of a robot includes “…that are able to replicate certain human movements and functions automatically” – by reading and understanding, they are replicating what a human could do.

The artificial intelligence portion of such software allows true understanding and learning. In its simplest form, you could use a keyword search to determine if “violent crime” featured on any record, but the context is important. If the record stated, “this person has never been involved in violent crime”, it shouldn’t be discarded. If that sentence ends with, “until now”, then it should be discarded – machine learning allows these nuances to be understood.

In the California example, if there was serious doubt, a human was called in. It is unknown whether the human interaction allowed the algorithm to be updated – true machine learning would include the ability to make future judgments based on what was learned from how the human reacted.

The future of AI and Law
A precedent has now clearly been set that AI systems can analyze records and find convictions and flag them to be removed, but how far can it go?

The Broward County system, according to Joan Napole, the IT project management office manager, scans incoming documents for sensitive information and removes it. About 20 percent of the filings are automatically docketed.

Currently, courts and corrections departments around the US use algorithms to determine a defendant's "risk", which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date. These algorithmic outputs inform decisions about bail, sentencing, and parole. Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.
Government agencies do not write their own algorithms; they buy them from private businesses. This often means the algorithm is proprietary or "black boxed", meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions. Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.

Also consider, finding a jury that is truly impartial is always difficult, whereas a machine will be impartial by default. Could a program be developed that would be capable of reading court documents, understanding them, and producing a verdict immediately? More importantly, would the public trust such a machine?

It seems as if it is science fiction, but it is much closer to reality than you might think.

For many law practices, the ability to process large amounts of paperwork quickly would be truly beneficial. If a summary of a case could be produced within minutes rather than days, it would make the task so much easier. In fact, there are many services available today that will digitize and process business paperwork using software robots. Large companies that send paper bills to thousands of people (for example, credit card companies) already make use of this technology to process incoming payments – but that’s the tip of the iceberg.

Would a trained law practitioner have a better understanding of a case than a computer? Is there even a possibility that law practices could be replace by AI?

There are automated systems currently in place that issue tickets and fines for vehicles that are traveling above the legal speed limit. In some cases, these tickets have been overturned as the vehicle in question was moving out of the way, preventing an accident from happening – could machine learning help to prevent false positives like this? And if so, would it reduce the need for legal representation in such cases?

The legal system has come a long way in the last few decades, and the move towards digital devices is unstoppable. The question is, how far are you willing to trust them within a law practice, and would you have confidence in a courtroom under the jurisdiction of a robot judge? The technology is improving constantly, and it may only be a matter of time before this science fiction becomes science fact.

These are just small examples of AI and lawyers integrating but we will always need the human touch.