Your thoughts - Surrender my certificate for 90 days?

Say again how far down the list is the "thread ignore" tool?
 
Henning said:
The whole lying to the court about the "You got the wrong guy... my client, my clients dad..." all that crap, that reeks of of a lack of competence and ethics. I read all 28 pages and came away feeling slimed and ashamed of being an American and a human.
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+1.
 
SkyHog said:
Any lawyer that says "Hey, lets go in and make them present a case" is an idiot.
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Then there are a lot of =very= successful idiots out there. Much of criminal defense is based on that exact principle. There are civil cases that are successfully won the same way. The old

I agree with Jesse's observations. We don't know what was discussed between attorney and client. We don't know what considerations led to the strategy that was used. I learned a long time ago to avoid jumping to conclusions about any attorney's strategy in any case without having access to all the information that the attorney had.
 
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Mark, I like number 3 in your signature. Perhaps the OP can consider that as he reflects on his case and v. Blum.
 
Everskyward said:
That's true except that David has asked for our opinions at least a couple times and it's hard to have an opinion, at least about the original violation, without the whole picture.
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You're right. And, without access to the NPCA, the FAA's disclosure file (including ATC tapes if they existed), the transcripts of the depositions that were taken, whatever David chose to share with his attorney, and whatever his attorney's own work uncovered, we do not even have a teeny weenie piece of the picture that was facing the participants on the day of the hearing.
 
midlifeflyer said:
I agree with Jesse's observations. We don't know what was discussed between attorney and client. We don't know what considerations led to the strategy that was used. I learned a long time ago to avoid jumping to conclusions about any attorney's strategy in any case without having access to all the information that the attorney had.
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I don't agree.

The OP asked for opinions.

The OP provided the ASRS and the Court's response.

The attorney made a poor decision by working the typographical confusion between Sr and Jr.

That conclusion is based upon the available evidence.

However, calling anyone an "idiot" is childish hyperbole.

[rant]Law is not merely the purview of high priests -- our system is intentionally open and should remain thus[/rant]
 
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What we do know: 5 years of lawyering to avoid a 90 day suspension. He is not 100% innocent he was a working CFI on board during a violation.
Well past time to suck it up take the 90 days and get on with life.
 
dmccormack said:
I don't agree.

The OP asked for opinions.

The OP provided the ASRS and the Court's response.

The conclusion is valid that the attorney made a tactically poor decision by working the typographical confusion between Sr and Jr and is based upon available evidence.

Calling anyone an "idiot" is hyperbole.

[rant]Law is not merely the purview of high priests -- our system is intentionally open and should remain thus[/rant]
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True story: Some years ago there was a nasty gang rape at a bar. The DA and the defense lawyers worked out a deal in which the defendants got supervised probation. The community, understandably horrified, went wild. The judge rejected the deal, forced the case to go to trial, and the defendants all got off.

It's not about "high priests." It's about having knowledge and information, and not the Monday morning quarterbacking kind either.
 
dmccormack said:
The conclusion is valid that the attorney made a tactically poor decision by working the typographical confusion between Sr and Jr and is based upon available evidence.

Calling anyone an "idiot" is hyperbole.

[rant]Law is not merely the purview of high priests -- our system is intentionally open and should remain thus[/rant]
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Well, I should defend the idiot comment, and you've touched on it. It appears that the arguments placed in court were dumb, short sighted and if nothing else, scumbaggish. To argue that a typographical mistake based on "Jr." vs. "Sr." when only one of the two has a pilot certificate, and only one of the two was flying that day is the ultimate in sleazeball lawyering.

To come to court with "Let them present their case," without any backup is the ultimate in lazy, "hope for the best," lawyering.

David would have been better off in court Pro Se. And that says a lot since most lawyers wouldn't even represent themselves in court.

I'm saying now, people should avoid Cohen Jay Fred and look for a competent lawyer that's not willing to try to take the easy way out and scumbag the system.
 
midlifeflyer said:
True story: Some years ago there was a nasty gang rape at a bar. The DA and the defense lawyers worked out a deal in which the defendants got supervised probation. The community, understandably horrified, went wild. The judge rejected the deal, forced the case to go to trial, and the defendants all got off.

It's not about "high priests." It's about having knowledge and information, and not the Monday morning quarterbacking kind either.
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If the defendents all were acquited, maybe there was a reason?

(Maybe -- just maybe -- it didn't happen?)

Re-read the OP -- he solicited opinions after his lawyer provided legal counsel.

The OP could have saved himself a whole mess of heartburn and money by taking the hit up front.
 
SkyHog said:
Well, I should defend the idiot comment, and you've touched on it. It appears that the arguments placed in court were dumb, short sighted and if nothing else, scumbaggish. To argue that a typographical mistake based on "Jr." vs. "Sr." when only one of the two has a pilot certificate, and only one of the two was flying that day is the ultimate in sleazeball lawyering...(snip)
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The tactic clearly backfired. I agree with those who said it probably solidified the Admin's case, to wit: "Yeah, this guy's going down..."

Whether this is evidence of "sleazeball" or idiot-hood is another question.

But it's enough information to provide a hint at what type defense this particular counsel would mount.

It's like finding a hair in my salad -- sure, the restaurant may be 5 star, yada yada.

But I wouldn't return, and I'd probably tell everyone I know.
 
dmccormack said:
It's like finding a hair in my salad -- sure, the restaurant may be 5 star, yada yada.
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I doubt there is a restaurant out there that doesn't end up getting hair in someones food at some point. I personally just pull it out, pretend like it didn't happen, and continue eating.
 
jesse said:
I doubt there is a restaurant out there that doesn't end up getting hair in someones food at some point. I personally just pull it out, pretend like it didn't happen, and continue eating.
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I retired from the Army. Infantry. Trust me -- I can handle my potatoes touching my green beans.

But a $60+/plate restaurant with sloppy hygiene won't be open long.
 
midlifeflyer said:
Then there are a lot of =very= successful idiots out there. Much of criminal defense is based on that exact principle. There are civil cases that are successfully won the same way. The old

I agree with Jesse's observations. We don't know what was discussed between attorney and client. We don't know what considerations led to the strategy that was used. I learned a long time ago to avoid jumping to conclusions about any attorney's strategy in any case without having access to all the information that the attorney had.
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AHHHHHhhh!!!! And there in lies the difference. First, the standard of proof is different. The prosecution has to prove their case beyond a reasonable doubt. This is a case of Administrative law which is a Preponderance of the evidence, then in this particular case, the defendant is using an affirmative defense (the NASA form) and that changes the burden of proof from the prosecution to the defense. Couple that with most criminal trials are heard by a jury of your piers (80% stupid) and it's less difficult to be a successful criminal attorney using the smoke and mirrors confusion technique (look at OJ's murder trial). Administrative law is adjudicated by a Judge, and knowing a few Judges, I'd estimate the majority of them com from the 20% of non stupid people. Non stupid people tend to get annoyed when treated as stupid, and reading that report, the lawyer was really trying that approach. I also feel from what has been said here and what was in the report, that he outright lied about representing both Jr & Sr.
 
midlifeflyer said:
You're right. And, without access to the NPCA, the FAA's disclosure file (including ATC tapes if they existed), the transcripts of the depositions that were taken, whatever David chose to share with his attorney, and whatever his attorney's own work uncovered, we do not even have a teeny weenie piece of the picture that was facing the participants on the day of the hearing.
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Here's the bit that leads me to believe the NASA form is a fairy tale:

The local air traffic controller at MTN provided a statement explaining how he became aware of the alleged initial ADIZ penetration, how he notified respondent via the radio that N27GS was not transmitting its assigned discrete transponder beacon code, and that “the pilot” acknowledged his failure to squawk the required discrete beacon code, but said “now he was.” Exh. A-3; Tr. at 68, 81-82.

My bet what happened, the transponder never came off standby. Most people would have answered that with a "Damn, recycling now... ident... You see me now?
 
Henning said:
AHHHHHhhh!!!! And there in lies the difference. First, the standard of proof is different. The prosecution has to prove their case beyond a reasonable doubt. This is a case of Administrative law which is a Preponderance of the evidence, then in this particular case, the defendant is using an affirmative defense (the NASA form) and that changes the burden of proof from the prosecution to the defense. Couple that with most criminal trials are heard by a jury of your piers (80% stupid) and it's less difficult to be a successful criminal attorney using the smoke and mirrors confusion technique (look at OJ's murder trial). Administrative law is adjudicated by a Judge, and knowing a few Judges, I'd estimate the majority of them com from the 20% of non stupid people. Non stupid people tend to get annoyed when treated as stupid, and reading that report, the lawyer was really trying that approach. I also feel from what has been said here and what was in the report, that he outright lied about representing both Jr & Sr.
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If you map this to a criminal context, what do you thing would happen if you were charged with murder, your lawyer said in his opening statement that it was self-defense, then didn't call any witnesses or introduce any evidence establishing that.

Asserting the affirmative defense admits you did it! You can't say "I didn't kill the guy, but it was because he was coming right at me with a knife!" You've taken the burden off the other side and put it squarely on your own shoulders.
 
JeffDG said:
If you map this to a criminal context, what do you thing would happen if you were charged with murder, your lawyer said in his opening statement that it was self-defense, then didn't call any witnesses or introduce any evidence establishing that.

Asserting the affirmative defense admits you did it! You can't say "I didn't kill the guy, but it was because he was coming right at me with a knife!" You've taken the burden off the other side and put it squarely on your own shoulders.
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Exactly, that was my point. He got a double whammy of lesser burden of prosecutorial evidence, PLUS shifting the burden on himself to prove his case was a just one.
 
Henning said:
My bet what happened, the transponder never came off standby. Most people would have answered that with a "Damn, recycling now... ident... You see me now?
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I'm not sure I would have thought of that one, but it's now filed away as the 'right answer' to the question.
 
dmccormack said:
I don't agree.

The OP asked for opinions.

The OP provided the ASRS and the Court's response.

The attorney made a poor decision by working the typographical confusion between Sr and Jr.

That conclusion is based upon the available evidence.

However, calling anyone an "idiot" is childish hyperbole.

[rant]Law is not merely the purview of high priests -- our system is intentionally open and should remain thus[/rant]
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That's actually a really good argument to make. If you don't "charge" the right person, your case is flawed from the get-go.

Same concept applies in criminal law - the charging documents need to be right, or the charges won't stick.
 
At the end of the day, the chances of the USSC even accepting this case, no less overturning it, are somewhere between slim and none, and Slim left town on the afternoon train. Futher legal appeals are, in my opinion, good money thrown after bad.
 
SkyHog said:
Well, I should defend the idiot comment, and you've touched on it. It appears that the arguments placed in court were dumb, short sighted and if nothing else, scumbaggish. To argue that a typographical mistake based on "Jr." vs. "Sr." when only one of the two has a pilot certificate, and only one of the two was flying that day is the ultimate in sleazeball lawyering.

To come to court with "Let them present their case," without any backup is the ultimate in lazy, "hope for the best," lawyering.

David would have been better off in court Pro Se. And that says a lot since most lawyers wouldn't even represent themselves in court.

I'm saying now, people should avoid Cohen Jay Fred and look for a competent lawyer that's not willing to try to take the easy way out and scumbag the system.
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Wrong - it's holding the government to its obligation to, I don't know, get it right.
 
Obi Heed Kenobi said:
That's actually a really good argument to make. If you don't "charge" the right person, your case is flawed from the get-go.

Same concept applies in criminal law - the charging documents need to be right, or the charges won't stick.
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It may be a good argument defending criminal case, but in an administrative case?

Let's just say -- given the evidence here, I wouldn't call it a go-to tactic.
 
dmccormack said:
It may be a good argument defending criminal case, but in an administrative case?

Let's just say -- given the evidence here, I wouldn't call it a go-to tactic.
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Just as much in an administrative, civil, etc. - if you name the wrong guy, you name the wrong guy, and per that opinion itself, it's in the judge's discretion as to whether you get to correct it.
 
dmccormack said:
It may be a good argument defending criminal case, but in an administrative case?

Let's just say -- given the evidence here, I wouldn't call it a go-to tactic.
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Nice Monday -morning quarterbacking.

Why not?

Early in my career I did a lot of criminal work. The nastiest remark ever made against me was during closing argument in which I used a criminal defense tactic in a civil case. It was so obvious that my opponent even said in his closing argument, "What does he think this is? A criminal case?" That was just before the jury took about 5 minutes to find in my client's favor.

Point is that we =don't know=. There's that somewhat infamous case in which the only evidence that the particular pilot busted the Class B was the pilot's call to TRACON in response to ATC's giving the phone number in which the pilot identified himself.

It's often mentioned in the context of "NEVER identify yourself" or "NEVER call ATC when asked to". The real lesson is much more subtle - whether to admit to something is based on a lot more variables than most people (or even lawyers) even think about.

To be straight. There's a lot that I question after reading the NTSB opinion and also the Court of Appeals one. But I wasn't there and having a couple of questions hardly qualifies as an answer.
 
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Obi Heed Kenobi said:
Wrong - it's holding the government to its obligation to, I don't know, get it right.
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Which they did, they worked out through the evidence at hand and settled that there was a typo. Besides, there wasn'r a problem in the charging between Sr & Jr because the terms weren't applied. The problem was that there were a pair of 5s transposed for a pair of 4s in Jrs certificate number. Since Sr holds absolutely no airmans certificate, and the respondent received the the mail at the new Ohio address, the judge, rightly IMO said "Yep, there was an error, lets correct that, and I find that we still have the correct person." This is an administrative case not criminal, no one is going to prison. If OP would have stood up in court, admitted what actually transpired which to me reads like an honest oversight on the part of two pilots to turn the transponder to on from stby and said "I'll always check from now on regardless who is PIC (because in reality, that IS the greatest part of CRM, cross checking the other guy because people make mistakes, and as an ATP flying right seat in a G II, he should be intimately familiar with that, and CRM applies equally in an Arrow as it does a G-II. That was the initial failure of his in this chain of events.). I've come to realize that the same CRM cross check factors that I use in mandatory two pilot cockpits can and should be equally applied with two pilots in a single pilot aircraft. Oh, BTW, for the record, you got my certificate number wrong, those two fives should be fours." he would have most likely walked away with probably a 709 oral on ADIZ procedures and PIC/CFI issues. The issue is an administrative one, and administrative judges have a whole lot of leeway in what they can do. Usually IME, they aren't out to fry anyone for an honest mistake. The people they fry are the people who flagrantly and repeated violate the rules or make egregious errors and then show "Hazardous Traits" when being dealt with.
 
Henning said:
Which they did, they worked out through the evidence at hand and settled that there was a typo. Besides, there wasn'r a problem in the charging between Sr & Jr because the terms weren't applied. The problem was that there were a pair of 5s transposed for a pair of 4s in Jrs certificate number. Since Sr holds absolutely no airmans certificate, and the respondent received the the mail at the new Ohio address, the judge, rightly IMO said "Yep, there was an error, lets correct that, and I find that we still have the correct person." This is an administrative case not criminal, no one is going to prison. If OP would have stood up in court, admitted what actually transpired which to me reads like an honest oversight on the part of two pilots to turn the transponder to on from stby and said "I'll always check from now on regardless who is PIC (because in reality, that IS the greatest part of CRM, cross checking the other guy because people make mistakes, and as an ATP flying right seat in a G II, he should be intimately familiar with that, and CRM applies equally in an Arrow as it does a G-II. That was the initial failure of his in this chain of events.). I've come to realize that the same CRM cross check factors that I use in mandatory two pilot cockpits can and should be equally applied with two pilots in a single pilot aircraft. Oh, BTW, for the record, you got my certificate number wrong, those two fives should be fours." he would have most likely walked away with probably a 709 oral on ADIZ procedures and PIC/CFI issues. The issue is an administrative one, and administrative judges have a whole lot of leeway in what they can do. Usually IME, they aren't out to fry anyone for an honest mistake. The people they fry are the people who flagrantly and repeated violate the rules or make egregious errors and then show "Hazardous Traits" when being dealt with.
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I'll certainly agree with all of that - but, in certain instances, the attorney isn't left with any choice but to argue what he can. And, considering the non-specificity of the name and certificate # issue, that's not a bad argument to make. If you've got an ALJ who's getting tired of those types of mistakes (and that does happen), it could work. And, if not, the judge still can't really hold it against you - he/she is obligated to decide the case on the evidence and the law.

Which, it would seem, is what happened here. As Ron said above (for the second time, I think), the chances of the USSC granting cert. are so absurdly slim, and the chances of there being a reversal are so slim beyond that, that filing a further appeal would not really be the best decision for a variety of reasons. Two of the primary ones being: 1) how good of a brief can be put together by the deadline which is a matter of days away; and 2) by the time the USSC made a decision on granting cert, the suspension could be served, and the pilot here won't have to have his name be in the published case reports.

That latter, someone else mentioned - does he really want to be that pilot whose name becomes associated with aviation law in the same way that the name Miranda is associated with criminal law? That could hurt his prospects more than any 90 day suspension could.
 
Obi Heed Kenobi said:
I'll certainly agree with all of that - but, in certain instances, the attorney isn't left with any choice but to argue what he can. And, considering the non-specificity of the name and certificate # issue, that's not a bad argument to make. If you've got an ALJ who's getting tired of those types of mistakes (and that does happen), it could work. And, if not, the judge still can't really hold it against you - he/she is obligated to decide the case on the evidence and the law.

Which, it would seem, is what happened here. As Ron said above (for the second time, I think), the chances of the USSC granting cert. are so absurdly slim, and the chances of there being a reversal are so slim beyond that, that filing a further appeal would not really be the best decision for a variety of reasons. Two of the primary ones being: 1) how good of a brief can be put together by the deadline which is a matter of days away; and 2) by the time the USSC made a decision on granting cert, the suspension could be served, and the pilot here won't have to have his name be in the published case reports.

That latter, someone else mentioned - does he really want to be that pilot whose name becomes associated with aviation law in the same way that the name Miranda is associated with criminal law? That could hurt his prospects more than any 90 day suspension could.
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Well, that would be true, the lawyer was arguing with what he had to work with, if he had a client who wouldn't own up to a mistake. What else does he have left to earn his fee with. I could buy that since the story told here and what is in the report don't really jibe with each other. I think a hell of a lot of taxpayer money was wasted on this, and I'd hate to see any of the USSC's time wasted even having a clerk open the envelope to look at the pleading.
 
If a client is uncertain about the wisdom or soundness of his attorney's advice and/or strategy, can he get a second opinion like he could with a doctor? Or is that just not done?
 
Palmpilot said:
If a client is uncertain about the wisdom or soundness of his attorney's advice and/or strategy, can he get a second opinion like he could with a doctor? Or is that just not done?
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Of course it is, and oft it's free or very low cost for an "Initial Consultation".
 
Palmpilot said:
If a client is uncertain about the wisdom or soundness of his attorney's advice and/or strategy, can he get a second opinion like he could with a doctor? Or is that just not done?
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Absolutely. It's done all the time. The client pays the bucks and gets to decide. Even better than a doctor - no insurance companies deciding for you.
 
midlifeflyer said:
Nice Monday -morning quarterbacking.

.....But I wasn't there and having a couple of questions hardly qualifies as an answer.
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Good grief -- the OP asked for / requested / solicited opinions.

The OP provided enough relevant documentation (including the court's response) so that anyone at a seventh-grade reading level could come to a conclusion.

The Jr/Sr gambit was just that -- a procedural sleight of hand which was prefunctorily dismissed.

The "Where's the PIC?" maneuver was rejected -- and rightly so. The CFI was providing instruction, the CFI called the number, the CFI identified himself.

He tried, he lost.

He wants an opinion? He's got several: Take yer lumps and move along.

But I'm thinking that's not what he wants to hear, and so we'll return you to your regularly scheduled endless hand wringing.
 
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Henning said:
Well, that would be true, the lawyer was arguing with what he had to work with, if he had a client who wouldn't own up to a mistake. What else does he have left to earn his fee with. I could buy that since the story told here and what is in the report don't really jibe with each other. I think a hell of a lot of taxpayer money was wasted on this, and I'd hate to see any of the USSC's time wasted even having a clerk open the envelope to look at the pleading.
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Well, along those lines, my recollection is that there is a fee for filing a petition. I've forgotten how much it is, but I don't think it's just a nominal charge.
 
Obi Heed Kenobi said:
Well, along those lines, my recollection is that there is a fee for filing a petition. I've forgotten how much it is, but I don't think it's just a nominal charge.
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I forget the exact term, but doesn't every court have to accept a filing accompanied by a "writ of poverty" if they have no ability to pay? I remember doing that when I went up against the San Diego Harbor District over anchoring rights when I moved my tickets from their municipal court directly into US District Court and there was a fee which at the time I wasn't able to pay. I shared a chocolate bar with a clerk and was advised on the finer points of filing. It has to do with the US Constitution and Equal Protection under the Law stuff. You're supposed to have the same access to the courts whether you're broke as or stinking rich. Besides, it's not about money, money is replaceable, it's about time. Time is unrenewable.
 
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Henning said:
I forget the exact term, but doesn't every court have to accept a filing accompanied by a "writ of poverty" if they have no ability to pay? I remember doing that when I went up against the San Diego Harbor District over anchoring rights when I moved my tickets from their municipal court directly into US District Court and there was a fee which at the time I wasn't able to pay. I shared a chocolate bar with a clerk and was advised on the finer points of filing. It has to do with the US Constitution and Equal Protection under the Law stuff. You're supposed to have the same access to the courts whether you're broke as or stinking rich. Besides, it's not about money, money is replaceable, it's about time. Time is unrenewable.
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That's right. There are a whole bunch of different terms for it (indigency, in forma pauperis, etc.) that vary from state to state, but it's all the same concept. In essence, you file an affidavit with the court indicating what your financial resources are, and if they're below a threshold level, you get to file for free. You'll stay have to pay attorney fees if you have an attorney, but you don't have to pay anything that the court charges (docketing fees, primarily).
 
a good attourney could make this 30 days if your lucky...just get it over with...
 
taters said:
a good attourney could make this 30 days if your lucky...just get it over with...
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Have you read the thread?

This case has been through the US Court of Appeals. That means it has already gone through an opportunity (whether or not they were all taken advantage of is not in the thread) for:

  • Informal discussion with ATC or an FAA Inspector
  • Response to Letter of Investigation
  • Informal conference with the FAA Attorney in response to a Notice of Proposed Certificate Action
  • Trial before an NTSB ALJ
  • Appeal to the NTSB
  • US Court of Appeals

The informal discussion at the beginning is the first and the Appeal to the NTSB is the last place in the process where penalties get reversed. Also, remember that even the filing of the NASA report was rejected as a defense based on a specific factual finding that the violation was not inadvertent.

A super-dooper-extra-wonderful attorney who has a US Senator's ear might convince someone to exercise discretionary authority to reduce the penalty at this point, but the process is pretty much at the end.
 
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midlifeflyer said:
Have you read the thread?

This case has been through the US Court of Appeals. That means it has already gone through an opportunity (whether or not they were all taken advantage of is not in the thread) for:

  • Informal discussion with ATC or an FAA Inspector
  • Response to Letter of Investigation
  • Informal conference with the FAA Attorney in response to a Notice of Proposed Certificate Action
  • Trial before an NTSB ALJ
  • Appeal to the NTSB
  • US Court of Appeals
The informal discussion at the beginning is the first and the Appeal to the NTSB is the last place in the process where penalties get reversed. Also, remember that even the filing of the NASA report was rejected as a defense based on a specific factual finding that the violation was not inadvertent.

A super-dooper-extra-wonderful attorney who has a US Senator's ear might convince someone to exercise discretionary authority to reduce the penalty at this point, but the process is pretty much at the end.
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Im sorry I did not ready the entire thread and agree that any chance to reverse this is probably over. I have heard (biz partner used to dable in aviation law ) that if you are willing to admit some guilt in the beginning process w/FAA a 90 can become a 30-day susp or a 709 ride fast. with legal help...of course this was often with regard to ag pilots spraying people by accident...but none the less admiting guilt should count for something if you are willing and honest with yourself
 
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Admit guilt? - never. Take this puppy to the Supreme Court. If that doesn't work lobby for a Presidential pardon. If the the President won't issue a pardon flee the country. It's easy to not admit guilt.
 
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