Wednesday, September 30, 2009

Rape Apologists

Jeffrey Toobin, perhaps the most rational legal commentator on CNN last night--made the point that if Hollywood wanted to confirm the stereotype that it is out of touch with mainstream values, the petition in support of the rapist Roman Polanski, is just the demonstration.

Roman Polanski is a great artist. The Pianist, is a great film and Polanski directed and participated in the creation of many great cinematic masterpieces. He is also a child rapist--he admits it. According to press reports his arrest was prompted by a taunt in court papers filed by his lawyers:

So how is it that we can ignore the crimes of persons like Polanski, in fact how do we rationalize honoring him and going so far to make such a person out to be a victim?

This is precisely the same thing that occurred here in our Home Town, in Our Home State and around the country when I began to represent victims of rape and incest against the family members who raped and covered-up the crimes. Other family members rode to the rescue, attacked the victim, extolled the perpetrator. The same thing happened in the priest sex abuse scandals. A dear friend of mine, in fact my God Father, a sainted man in my view--related to me the story of an accusation against a priest in his parish. My God father's first response was an attack on the character of the mother of the victim.

Could it be that our values, religious, aesthetic, familial override our integrity? At bottom, it is a matter of what we have invested in our relationships, and with whom we identify. Oh, for the record, what Polanski did, the Grand Jury testimony summarized here:

Tuesday, September 29, 2009

A letter to the Supreme Court

There is no easy--real, apology.

I violated the rules that require all lawyers to be good and honest businessmen. Those rules exist to protect clients from lawyers who are not good businessmen from becoming lawyers who will not only neglect client matters but worse, steal the client money. When I and my secretary paid personal bills out of my trust account I did recognize that it was a short step to using the trust account when the assets in the account belong to the client. When I became unable to pay creditors and when I did not seek to resolve creditor claims through compromise or bankruptcy I created and continued the illusion that I was trustworthy when I was not.

I accept the consequences of my actions and my failure to take appropriate actions. While I personally dread every aspect of this process should the Supreme Court sustain the recommendation of suspension I accept that consequence as being a product of my actions, alone.

I apologize.

Monday, September 28, 2009

On the road, today and tomorrow . . .

Tying up loose ends on Big Dennis' case. And of course, my Oral Argument at the Supremes over my proposed suspension is Wed.

Friday, September 25, 2009

Depositions, Shmedreposition. . .

I was in WhiteBean, Our Home State defending a manufacturer of supermarket jello salad. Big Dennis, a former employee claims he hurt his back at work lifting jello cubes and as a result Big Dennis will never work again.

Big Dennis is a sweetheart, a 31 year old childlike, dark-complexion, hairy giant of a man who is in all likelihood, autistic--maybe, developmentally-delayed. I don't know--but, I deposed Big Dennis over the summer at his lawyer's office. While deposing Big Dennis was difficult, I've experienced witnesses fully in possession of intellect and educational achievement that have made less sense. The rules of civil procedure govern "discovery"--how you get information and how depositions of parties and witnesses. The rule relating to depositions provides that a person may review the transcript of the questions the lawyer asked and the answers he gave and make changes to the testimony as long as in each instance of a change the witness indicate why he is making the change. Generally speaking, most witnesses "waive" the right to do this--and those witnesses who preserve their rights will usually only make cursory changes, correcting spellings, mis-translations by the court reporter, although the rule does not limit the witness in any way as to the substance of changes they are entitled to make.

In Big Dennis' case I received 24 lengthy hand written changes: the changes frequently began with "Even though I said this, this is wrong..." The hand writing did not resemble the signature and because of information I had developed from Big Dennis, I concluded that what I received must have come from Big Dennis' Mom who according to other persons involved in the case--had involved herself in all aspects. I confronted opposing counsel about the Mother's self-involvement in the case and instead of agreeing to withdraw the changes argued with me that she was "only helping, Big Dennis." My motion to strike Mom's "testimonial changes" is pending before the court. We are set to begin trial on Tuesday Morning in the White Bean County Courthouse.

Yesterday I deposed Mom. Mrs. Pieceofwork has been married four times; she has the employment history of a vagrant; and, she freely acknowledged that she, not Big Dennis filled out he paperwork to initiate Big Dennis' injury claim; she, not Dennis provided the medical and injury history to the physicians who treated Big Dennis; she, not Dennis responded to the other "written discovery:" interrogatories and requests for production of documents; and, finally, she, not Dennis changed the deposition testimony as I suspected. At one point she described watching Dennis park his truck after work on the day that she says he injured himself--and, I asked her whether she also took the driver's license test for Big Dennis. I had accumulated every record I could get on Big Dennis' prior medical history and lo and behold, neither Big Dennis or his mother, disclosed ongoing treatment for the same medical condition claimed in the case pre-existing for many years prior to the injury and within weeks of the date of the so-called lifting incident. Furthermore neither Big Dennis or his mother disclosed two accidents injuring the back that pre-existed the claimed injury in this case.

Yesterday afternoon I drove out to a medical building to depose the orthopedist who treated Big Dennis. An expert witness in an injury case makes two important aspects of the Plaintiff's case: the expert provides a description of the condition that he finds upon examination; and the expert provides and opinion within a "reasonable degree of certainty" that the condition was caused by the injury. In this case Big Dennis' medical condition was caused by lifting at work.

Now I've had this happen a number of times in my career and if you're the lawyer proposing the witness this is an awful sensation. The lawyer, a veteran guy with an Andy Griffith North Carolina drawl tried to finesse the non-disclosed prior injuries and accidents but his expert wasn't biting. The doctor refused to related the condition to the claimed lifting incident. In the parlance of injury lawyers--this is called, "the doctor went south."

Case over.

Thursday, September 24, 2009

On the road, today . . .

I was on the road, today, representing a client in a farflung court house in Our State. Lot's of fun, blogging resumes, tomorrow.

Wednesday, September 23, 2009

And the DOJ witness muttered, "This is Surreal!" OK, do not ignore this link. Senator Al Franken could be the best thing to happen to we-the-people in a long time. And, if true, AG Eric Holder should be firing shit-head, AAG David Kris.

Tuesday, September 22, 2009

Jury Selection Part B

Lawyers are required in Our State to obtain additional education and report at least twenty-four hours of this "continuing legal education or CLE" every two years to maintain the law license. I think most lawyers will concede that this requirement is all-in-all pretty smart; although, there are some pathetic examples of what passes for CLE out there.

Over the years I've attended some good classes, including valuable trial tactics classes. In my opinion trial tactics seminars are virtually worthless until you've tried something. I know, this is putting the cart before the horse, but how can you appreciate a "trial tactic" until you've tried a case? The best trial experience comes from sitting "second chair" to a good lawyer, and alot can be gleaned from watching lawyers try cases even without sitting at the trial table. Some of the greatest trial lawyers I've seen were the least obvious, the non-bombastic, quiet men and women, but thorough--the ones who knew how to connect with jurors and judges and lay out a narrative that made sense.

At first, trial work is all false start. There are so many formal vestiges of courtroom manners and traditions and more importantly there are the rules: civil, criminal, and evidence. After so many trials, even after a quarter century of preparing for trial, I move slowly and deliberately at the outset of a trial, not always certain that the trial, itself, is going to happen, and always uncertain about what the Judge is going to permit.

A trial begins when the jury is seated--beginning with the venire: the pool of prospective jurors and continuing with voir dire--he jury selection process. Voir dire is the trial attorneys only opportunity to talk to and hear back from prospective jurors and make a first impression. Voir dire is also the first opportunity you have as a lawyer to seed concepts and ideas that you hope the jurors will examine and contextualize as the evidence is introduced or arguments are made.

Now who do you pick? I like to say that I pick the first 8 (juries for civil lawsuits in Our State have 8 jurors)--sensate, persons. But the reality is that the court's provide you with a little upfront information about your prospective jurors--and, the actions of the other lawyer and Judge may push your choices. Plus, in my view the client should have input.

The standard of proof in nearly all civil lawsuits is what is "preponderance of evidence." this means for something to be proved, the juror must believe that something is more likely than not. In my opinion many lawyers screw the pooch by playing games in voir dire by focusing too much on the subject. If you are the person having to prove something aren't you instilling doubt when you tell a prospective juror that "I only have to prove something by the weight of a feather on evenly balanced scales?" I'd much rather tell the prospective jurors that I'm going to prove everything to you, but "bear in mind something is proved even if I can't bring in every possible eyewitness, every possible document or thing relating to the event--I can't recreate everything for you to see it as if for the first time--neither you nor the court have the time or resources to do that--and, that is why we have trials."

If I'm trying to prove something and I'm worried in any way about the quantity or the quality of my proof--I certainly don't want bean counters: accountants, engineers and empiricists on my jury. And yet, if you properly prepare a jury, you can get persons with precise attitudes to embrace uncertainty.

My experience tells me that once a Jury is seated, it's incredibly important not to waste their time, which overly repeating, or overly emphasizing points--does. Brevity, if done well is very persuasive. Making the connection with the jurors on the level of narrative common sense is the single most important arrow in sleeve of a trial attorney. In doing this so many lawyers reach for this ingratiating style that is repulsive and offensive--can you say Charles Binder!

Ok, here's my surprising jury selection story. I was picking a jury in a car accident case. the bailiff had given the lawyers a list of the prospective jurors, the venire, as the jurors walk in, I notice that one of the prospective jurors is a police officer that I represented in a seperate matter. Not only is this prospective juror a former client, he is also the "investigating" officer in the very car accident that we are in court about to try. I don't need to tell you, but Our Home Town is a very large city, so what's the chance this is going to happen? Now get this, this guy is actually too-stupid-to-live, a disability recognized here in Our Home Town as not a reason not to employ a person a police officer. So I figured when the Judge asked the automatic questions, like do you know any of the lawyers, the parties or anything about the case he would acknowledge these facts and be "excused." Not this guy, he sat staring blankly into space. But for asking the Judge at sidebar to disqualify this guy, he would have been seated as a juror in a case he investigated. Clueless.

Corporate Personhood

Some genuis, (who once again did not receive his MacArthur grant!) once blogged about the travesty that is corporate "personhood", and, I note that the Paper of Record, jumped on my bandwagon to decry the doctrine:
And don't miss Will Ferrell's PSA on the just implication of these principles:

Monday, September 21, 2009

attorney-client priviledge

Lawyers are privileged not to divulge confidential information shared with them by their clients. So I was surprised when I read that a congressional commitee had ordered Bank of America to disclose the contents of communications it had with it's lawyers: see
As with so many news articles, even those extremely well-written and insightful legal and financial pieces in the NYT, the real story is in all likelihood more complicated. But it is true that the ideal of privilege has been circumscribed in recent years, I think about that radical NYC lawyer, Lynne Stewart, who was prosecuted and convicted largely based on FBI recordings of her conversations with her client.
The special right conferred on lawyers to maintain privilege is not license to engage in criminal activity, but the privilege is essential to the relationship between a lawyer and his or her client. It is fundamentally what a client purchases from a lawyer--the lawyer's advocacy is based on fully knowing what the client discloses in confidence.
I will return to this subject. But I thought it unlikely that I would ever sympathize wtih BofA.

Judicial Ethics, a continuing meditation Interesting essay at the Legal Profession Blog, of which the Bad Lawyer Blog is not-worthy--also check the unbelievable "musings" on Rosh Hashanah. Wow, are these guys high-toned or what?

A number of years ago I was involved in a nightmarish case in a small county involving a corrupt nursing home operator, a director of nursing, and a young nurses aide. There were allegations of sexual harassment and I brought an action against the operators which were based in Our State's second city. The operator was someone who successfully gamed the entire system with the help of a dedicated lawyer out of Our State's capital. After I filed my action in this small rural county the nursing home operator hired the county prosecutor's son as local counsel--and I experienced what every lawyer fears, but which I can truthfully say almost never occurs in my 27 years of experience--I experienced "home boy(ing.)"

Being "home boy(ed)" is the awful experience of being involved in a matter in which your Judge has completely partial to one side. Often parties think this is occurring when in fact they have no case either factually or legally (or both.) So, I discount the allegation even when made by my own clients--but, this nursing home case was purely awful, and evil was done by the public officials in this small rural county on behalf of the nursing home operators. One of the more trivial aspects of this case was the fact that the Judge in the case, while the case was pending was a guest of the prosecutor and his family at a "reverse raffle." Ergo, the connection to the Legal Profession Blog post: can a Judge avoid the appearance of a conflict of interest when he or she receives "gifts" from litigants? How is the gift, even a ticket upgrade, not a bribe?

A number of years ago I handled a sex harassment case on behalf of a young woman that was defended in Our Home Town by an international law firm. On the day of my client's deposition at their Taj Mahal offices in the penthouse suite of the newest, tallest office tower in town I was ushered through the dining room which was set with silver service, the Chief Justice of the State Supremes was going to speak to them and enjoy their luncheon largess. Assuredly, this law firm had many cases pending in front of this jurist.

The Catholic Church, as I have pointed out on numerous occasions holds an annual Red Mass to bless and feed the elected officials who guard the flood gates against law suits and prosecutions for molesting children.

These "musings" are prompted by my reading that one of my judicial heroes is taking an ethics bullet for trying to protect witnesses from intimidation by a gangster. Apparently statements made in court at a proceeding prior to trial (from which the Judge recused himself)--have resulted in the disciplinary counsel of Our State prosecuting the Judge for violating the judicial ethics. Let's see bribery of the Judge if done by gentlemen, that's OK, but God forbid you try to protect a witness from physical harm--that'll cost you.


Thursday, September 17, 2009

Death Penalty Follies In this item taken from the Paper of Record--the double murderer at left is waiting execution following a trial in which the female Judge and male prosecutor were boinking one another. A reviewing Texas Appeals Court says, no biggie!
Several questions arise: huh?!!!!! being the big one.
Are we crazy? How can we justify killing people if we can't guarantee them a boinking-free trial, jjjjjjeeeeeeeezzzzzzzuzuuuuuuussssssssskkkkkkkeekkeeeeeeyyyyriiiissstttttt!
Let's get serious folks, how do you "avoid the appearance of impropriety" at least as it relates to rulings from the bench when one of the lawyers in the trial is shoving his penis into the Judge off the bench? And Texas doesn't have a problem with that? Are they kidding? Great pic of the Texas CCA after link:
Let's be straight about one thing, most of these death row guys are human pieces of shit, the guy in Ohio that they tried and failed to kill on Tuesday, kidnapped, raped, and then murdered a 14 year old girl. But how do we kill him without engaging in state-sponsored toruture and cruelty? It can't be done.

Jury Selection, Part 1

Today I submit a link to a superior meditation on prospective jurors care of Bike Snob, a world class cultural critic. More on Jury selection will follow in parts deux, etc.

Wednesday, September 16, 2009

We're Killing 'em

According to the AP, Ohio was trying to kill a guy yesterday "via lethal injection" aka poisoning him to death in the name of Just-Us but they couldn't find a vein. According to the report, Ohio spent two hours and even with the intended dead man's help they couldn't manage it. See

Lucky soon-to-be-stiff, ther Govenor of Ohio, generously, says he can live another week--they will try to kill him (for us), next week instead. We are truly blessed.

Tuesday, September 15, 2009

Stop Electing Judges!

Former Supremes, Associate Justice Sandra Day O'Connor says, Stop Electing Judges. While I've yammered on about Judge Italianname, and Irishname, and Weirdname--and, the sheer ignorance of the elctorate over who these clowns are; Justice O'Connor strikes right at the heart of the danger to democracy--money, money, money in judicial elections.
But here's the problem, merit selection of Judges, which is the alternative to elected judges means bar association groupies, large law firm committees, and academics will choose your Judges for you at best the people will get a vote to "retain" the selected Judge. You see, your judges will be selected by the lawyers with the money--and, where might this money come from,,,mmmmm might it be elites with money: corporations, insurance companies, financial institutions, medical providers?
Don't get me wrong the name game, is horrible. In Our Fair State, on our local Court of Appeals there is a certifiably educably retarded jurist with a famous Italian last name. Our Town County Courts have featured, an Irishname Judge who was a drug addict and dealer; there have been many many Irishname and Italianname Judges who were and are drunks and crooks. On our metropolitan Courts there are many African American Judges with similar pedigrees and shortcomings. Is there an answer? Sure, it requires participation by all the stakeholders but the danger is, this: reform is another way in which the ideal of government of a government of, and by, and for the people is just one more illusion.

Monday, September 14, 2009

Pepper Spray, Part 2--the Holding Cell

After I was pepper-sprayed, beaten, and arrested for objecting to Your Hometown Courthouse Security Personnel's abusive behavior directed at a citizen/client and self--I was jailed in an area of the Hometown Jail called Protective Custody. This select area of the Jail is for honored customers like the local pedophiles, serial rapists, and celebrity offenders now including yours truly. Several hours after the melee and jailing an attorney of my acquaintance located my body and was able to obtain a judicial release without bail.

The next day my arrest made the front page of the Metro section of the Our Hometown Newspaper--at least I was called "prominent" in the report which fairly characterized the deputee-riot as pretty much what it was--though, a Sheriff-representative described how I manhandled two of the officers injuring them in the process and promising my prompt prosecution for felonious assault. Ultimately, this spokesperson proved perspicacious and I was indicted ten months later on five counts including the two felonious assault charges. The kitchen sink indictment included criminal trespass (get this--a lawyer can be guilty of criminal trespass for being in court!) and resisting arrest counts.

My next day in jail was at my arraignment. TeeVee cameras recorded my being hauled off to the holding cell which turned out to be a 6 hour adventure. The Holding Cell is the place where criminal defendants who initially receive "bond" and are to be released on the day of the arraignment. As I learned, the holding cell's purpose is to keep criminal defendants secure while a "world-wide warrant" check is conducted. This makes sense if you think about it, Joe Sleazebag is accused of breaking and entering by the local police, the arraignment judge sets bail at $1000, but it turns out he has a warrant out for his arrest in Georgia for murder. Your local elected judge lets him go upon payment of 10% bond, and Joe goes out and murders Mother Theresa. Uh, uh--local elected judge ain't gonna do that--but since Jail Space is at a premium some fail safe measure is called for. Thus the Holding Cell.

Now the day in question, I'm dressed for court (see above-illustration)--I was not quite prepared for being placed in a dimly lit room designed to comfortably sit 6 in which 20 of my fellow defendants were in fact made to wait. Being the celebrity, and in recognition of the burden on the local media--the Judge handled my arraignment first, so everyone of importance could move along. Thus I was able to take my pick of places to sit in this, um, facility. Initially, I chose a spot which permitted me to sit upright without leaning against the cinder block walls that smelled of bleach. Every ten or fifteen minutes I was joined by fellow citizens and for the first hour or so, silence was the rule.
Eventually a certain number of my cellmates began to talk and I do not exaggerate when I say I could not initially parse what was being said. It was Shakespearean in its verbal-density--all street patois punctuated by the one word that I did recognize, "nigger"--which seemed to be used in various parts of speech for multiple purposes. In retrospect, I would have loved to have had a tape deck to record the dialogue spoken in that dark little space.
This holding cell playlet--did have a plot, the reveal of which was: why we were there--as I explained; but, the plot centered around who would actually make it to freedom that day--and, who would be caught up in the worldwide warrant search. Guys fretted aloud--will child support deficiencies show up, traffic tickets? I'm just as certain that many of the anxieties in that cell went unexpressed. At least a couple of these folks knew that it was unlikely they were going to walk out of jail that day. As my ear became accustomed to what I was hearing I began to make out the various stories of my brother cell mates. By that morning I'd been an attorney for 25 years--and yet I learned a whole lot about my predicament sitting in that cell, and theirs. Much of what they knew was accurate--much of what they thought they knew was totally wrong--and, yet they spoke with certitude about judges and lawyers that I knew--with perspectives that were very narrow at best. These guys collectively knew the pattern of the experience we were sharing and they knew at what point we would be offered food and how long we would be there. At some point someone took the initiative to ask me why I was there. The result was a generalized expression of awe that a white lawyer like myself would experience firsthand what they took to be their risk of being "guilty of being black." Sometime midday a deputy stuck his head in the cell and offered to sell us candy bars from the deputy's kid's fundraiser and many of the guys bought candy bars, and food was shared around the cell, the guy sitting next to me offered me his. Late in the afternoon, by my watch, there was no window--several of the occupants of the holding cell were taken out and arrested on outstanding warrants. By 5:30 I was on my way back to my office.
The trial, did not happen for another year--because, I was "prominent," no elected local judge would agree to sit on my case--particularly when the prosecutor objected to each successive judge as being the sort to be inclined to toss the charges against me. The Supremes of Our State appointed a "visitng judge." in my case a retired judge. Overall, the general sense was that lawyers are arrogant fucks (especially, your truly), and whatever happened to me--well, I probably had it coming and doubtlessly provoked it. Simultaneously, the conventional wisdom was that I did not commit any criminal offense, but that the politically-sensitive prosecutor could not afford to upset the politically powerful Sheriff. Laughable in hindsight. But more, when I continue.

Sunday, September 13, 2009

Freedom of Speech, Part 1 Blogging can get you disciplined! Ahhahhahahhahhahhaaa!

Thursday, September 10, 2009

Pepper Spray-Part 1--Courthouse Scuffle

Ah, here we go Louisiana Cop pepper sprays a 61 year old woman after stopping her car for windows tinted too darkly, see Pepper spray is pretty nasty stuff. A few years ago I was exiting Your Hometown Court house where the high-sheriff had fully-engaged in all the post 9/11 theatrics of security. The Sheriff's niece, or maybe it was the Sheriff's niece's niece--they were all related to him some how--spotted me explaining something to a client and lingering a little too long to her terror-alert-tastes and loudly ordered my person, and the person of my client to leave the courthouse. Did she ask nicely? No. Did she indicate that some rule: like lawyers can only talk to clients for limited minutes out in the open of the court house or something like that, um, no.

Being the Bad Lawyer that I am and somewhat sensitive to the ideal that the people own the court house and that even the Sheriff's niece's niece--work for the people I decided to ask why security-like theatrics demanded the post-haste abbreviation of a lawyer's sacred confab with a client in of all places, the friggin' court house. I approached this lovely young woman and one of the other deputeeees pressed a panic button and before I could say boo I was sprawled across a security table with 5 Sheriff deputeees on my ass screaming "cooperate, comply!" As I have said elsewhere in this here, apologia for breathing--I'm not a criminal defense attorney if I had been perhaps I would have recognized the code words for--law enforcement about to go evil on my ass. I was told to put my hands behind my back, which I promptly did--and one of my hands was cuffed. My body was being shoved side to side and down on this security table while deputees were flying in from every direction. I was wearing a suit, a rain coat and at least initially a men's hat. The hat went sailing, my briefcase was taken--then one of the deputees snatched my glasses from my face and emptied half a can of pepper spray directly into my eyes.

These front line heroes of America's war on terrorist lawyers dragged me into elevators that service the jails and proceeded to beat the holy shit out of my ribs. Because two of America's finest bruised their knuckles on me I was charged with two counts of felonious assault and jailed.
This expensive and painful ordeal cost me $30,000. in attorney fees, the better part of two days in jail and the first real threat to my license. More about Pepper Spray, law enforcement, and what happens to persons who aren't lawyers who find themselves in cuffs with Pepper Spray in the face when I continue.

Wednesday, September 9, 2009

medical malpractice reform

Isn't it funny how we organize our thinking around the notion of success by attributing success to those who obtain money. Ambulance chasers I have known will often esteem other ambulance chasers I know as successful because they "hit big" or "they made a lot of money." If you think about it these are attorneys who make big money because persons get physically injured--isn't there something slightly grotesque about that. And of course, big money breeds looks like we see a la Charles
you-have-enough-to-worry-about Binder

Back in the old ground-line telephone days my partner and I would pour through the new phone book to see who could afford in that given year, a prominent ad. We'd laugh out loud at the particularly garish yellow page ads, the one's in the shape of currency or the ones that held out the promise of big rewards for personal injury claims. The most offensive ads were always by the shitbags who were not real practitioners in personal injury who operate a sort of intake, legal services brokerage. Then there are the action shots of lawyers in pretend courthouse picturess--there's at least one group here in Your Hometown, let's call them WELK and WELK--two monkey-ass-ugly brothers who came out of nowhere and who advertise like no body's business. Frequently these ads feature the Welk brothers in their bad toupees posing in courtrooms (remarkably, not courtrooms where civil cases are tried) in town and striding triumphantly down the courthouse stairs--it's all made up! Another local attorney Tim Misery runs commercials where he takes "your phone call" while he sits in his barber's chair or while he's at the hardware store and he promises "he'll make them pay." Now, in my day as a Bad Lawyer I was in the court house of Your Home Town, and in the Court Houses of Our State and I never bumped into Mr. Misery--I bumped into a lot of minimum wage young lawyers (with minimal skills) who worked for Mr. Misery.

But, the ambulance chasers are hardly, what I want to talk about--because your Bad Lawyer is deep thinking about health care reform today. One of the proposals from the right (which I agree with) is medical malpractice reform--let's get out terms straight. Usually, when anything is called "reform" you can just as accurately substitute the word deform--and the same is true for what passes as medical malpractice "reform." Medical malpractice lawsuits have always been the target of litigation "reform"-ers--and, generally speaking the reform program is and has always been about fucking over victims of malpractice by creating expensive and restrictive obstacles to compensation. As a consequence the plaintiff's malpractice bar believes, rightly so--that most malpractice claims are worthless--or as they say, you gotta kiss a lot of frogs before you kiss one prince.

Malpractice happens, as I've related how my unintended "bankruptcy" advice supported a malpractice claim against moi--but in the area of medical negligence--to financially support a plaintiff's malpractice claim you require terrible injury, permanent loss or death. But the full blown med mal case is expensive, requiring acquisition of records, expert record review and a doctor in the specialty to testify that (a. there was a deviation from the standard of care; and, (b. the deviation in standard of care caused the injury. Let me tell you about Bob, Bob was having a cancerous lesion removed from his tongue. The anesthesiologist shoved the oxygen tube down the wrong pipe. Bob strangled to death. Clear case of malpractice? Sure. Problem: Bob was having a cancerous tumor removed from his tongue for the second time--in fact cancer surgeon was taking his whole jaw and other adjacent tissues, Bob was dying. Since Bob was in his 70s already he had already reached his life expectancy. What was the claim worth? Not very much.
On top of the requirements there are unforgiving procedural hurdles to bringing your medical malpractice action, in Your Home Town and in most jurisdictions around the country. The doctor's lobby's and malpractice insurers have already done a number on the laws. Here's the point, the big malpractice verdict is the rare exception to the rule. With statutory verdict caps (enacted by the legislators that your insurers and medical lobbying corporations purchased), and successful appeals, the "big hit" malpractice action is a rare thing. Roulette.

Is the better way? Let's do away with medical malpractice roulette. A fund should exist for injured parties to participate in. The rule of thumb should be liberal construction for claimants. The parties should be permitted to have their claims reviewed by fund-employed physicians for free. The fund should be supported by the health care dollar, not malpractice premiums--and claims should cover all losses over the lifetime of the injured party. Oh, there will be a role for the likes of the Bad Lawyers, but the public policy should be in favor of compensating. Penalties should be assessed against the dangerous medical providers in coordination with their professional licensing organizations.

Here's the big plus, fewer Bad Lawyers in cowboy hats and bolo ties.

money, money, money

The Supremes are re-hearing the Citizens United v. FEC case, aka the anti-Hilary documentary see a rightwingnuts organization put out before the presidential primaries were over in 2008. Two things: this is why Sotgomayor's nomination was pusheed through Congress--so she could sit for the oral arguments in this case; and, more importantly bear in mind the only thing of lasting importance: the Supremes may answer the question: does the First amendment permit corporations to spend shareholder money in ways that allow the corporations to buy your elected officials?

The scholars, Jan Edwars and Molly Morgan have written that--Slavery is the legal fiction that a person is property. Corporate Personhood is the legal fiction that property is a person. It is the notion that coporations are persons that avails corporations of the priviledges and immunities granted we the people--such that corporatons by delivering of boatloads of money to our elected officials thwart the interest of the people. Oh, and with what the corporations have left over, they tell us how much we like what they are doing using camouflaged goups with consumer advocacy sounding names, like Citizens for Free Choice to be Ass-fucked by Big Oil, Pharm, You Name It.

Now, no one is going to accuse Bad Lawyer of being a brainiac, so refer to the real thinkers for detailed analysis of the issues in Citizens United v. FEC
see and the implications of the Supremes overturning their precedents in campaign finance law see

What you need to know that this is about money, money, money. Your money. Can we think about how this is? Blue Cross sells you health insurance, the company charges you a premium that you can afford to pay, so they agree to cover only certain things, they will only pay certain amounts, and the premium dollar must be sufficient to pay executive compensation and return a profit for shareholders. Well it turns out, Blue Cross is making scads of money, short-changing health care providers, not covering more expensive procedures and not covering certain medical conditions--but pending legislation is going to change that--Blue Cross and its competitors get together, pool their resources and create Citizens for Health Care Free Choice, and they run ad campaigns supporting industry-um, friendly legislators and supporting attack campaigns against candidates viewed as less friendly: see Olbermann's brilliant take on owned-legislators:

Money, big money, money the corporate personhood owns your government of the people, for the people and by the people. Citizens Untied v. FEC is a big case--how much more of your ass will the corporations own? That's the question.

Tuesday, September 8, 2009

Separation of Powers

What does Barry not get about the Separation of Powers? Let's see Sotomayor is saying--Like, I've thanked you let's see, mmmm u mil times, now vamos, amigo!

And wtf is Nino chuckling about?

Dahlia Lithwick on Cameron Todd Willingham

In case there was need for futher proof that Scalia is a douche-nozzle see,

Confirmation Bias

A striking aspect of the Willingham case is the role that confirmation bias plays in the view of the evidence. Confirmation bias is that idea that how we view evidence is effected by our bias, thus if we presume guilt--even evidence of non-guilt confirms in our view guilt. In Cameron Willingham's case Willingham's understandable grief and shock at the scene of the fire is later construed by witnesses--now biased to believe that Willingham committed arson-murder--as overacting, pretend emotion. Wilingham's tattoos were viewed by "experts" to confirm their view that Willingham was a sociopath. Confirmation bias is an irrational tendency to search for, interpret or remember information in a way that confirms one's preconceptions or working hypotheses. It is a type of cognitive bias and a systematic error of inductive reasoning. These biases in information processing are distinguished from the behavioral confirmation effect (also called self-fulfilling prophecy), in which a person's expectations influence their own behavior.[1] source: Wikipedia.
My friend, Chuck is a right wing bastard. Since my friends are for the most part: lefties, since I'm a left-ee--being friends with Chuck is a challenge. Still, Chuck is like a mirror--his irrational hatred of Obama is often comic and serves to remind me that the way I look at the world is no less biased.

Here's where I prove what an asshole I am. How dare I talk about true injustice of Cameron Todd Willingham, and then segue into the poor-me, but this is my Blog, get your own if you don't like it.

Being a sorry-assed Bad Lawyer I've been trying to understand how it is that certain of my actions and inactions have been found to be intended by me as "a scheme" to avoid garnishment supporting a disciplinary suspension! How did my actions intended to enable a client to have time to review his rights with the appropriate legal expert--become the act of malpractice in this area of law that I expressly deny any expertise---confirmation bias? If you conclude that I am a Bad Lawyer, all my acts and omissions are the acts and omissions of a Bad Lawyer--including those acts that exculpate, those acts which are innocuous. This Blog is nothing if not self-justifying and self-pitying and yet occurs to me that I lack the courage to really let it all hang out. Well, I'll work on it

Friday, September 4, 2009

Powder Blue Double Knit

This is one of my favorite Traficant pics. Jimmy T's rockin' a two-button powder blue double-knit suit with a terrific striped wedding singer tie.

The press, is taking down every word.

Here, Jimmy T is telling the press that the federales have been bugging the shit out of him--and that a recent security scan of his outfit turned up a tiny video feed hidden in his rug.

I can't figure out how it is that the former Youngstown (is that Mahoning County?) sheriff never made the cover of any of the Lad Mag Fashion Issues.

By the way didn't T-man look great in the white support hose as he left prison the other day?

Thursday, September 3, 2009


According to Jane Kramer writing on Michael de Montaigne, in the Sept. 7th New Yorker, Montaigne also doubted the nature of Justice, concluding that there may be "no truths, only moments of clarity passing for answers." I know, pretty high-toned for a Bad Lawyer--but, the execution of Cameron Todd Willingham, an innocent man in Texas leaves me feeling aghast. The Willingham news comes on the heels of Justice Scalia (see: contending in writing what we already knew, innocence is no defense to a constitutionally rendered death sentence. Ah, the human comedy.

I've been struggling with the feeling of impending doom and arguing with the past. Re-arguing debates and cases long lost to history--like the failure of the laws in this Your State to understand that children raped by their parish priest, or by a relative might be incapable of bringing a timely criminal or civil action. You see we get all absorbed with idiocy, spectacular, video-ready stories that narrate what we do or do not know; and, as a result we distract ourselves from the rape up the road. The child up the road doesn't count because to dealing with that would implicate our faith, our family status quo, our personal feelings and sense of security.

Today, a former client called me to tell me that a particularly vile Priest had lost his Canon Law Court case and had been defrocked for molesting lots of little boys in his care over a 40 year career. When I originally reported this vile priest to the Catholic authorities there was a parish meeting that made the Health Care Town Halls seem like prayer meetings. One parent asked me how I "slept at night." Back then I slept blissfully, thinking that I was on the margin of justice. Sometime later NPR did a piece on "falsely accused" priests and this clown and his supportive parish was the example. I do not feel vindication learning as I did to day that this priest was defrocked after a full examination of the evidence--he should be in prison--instead one of his victims sits in prison, an alcoholic wet-brained former fire-fighter now a violent felon.

Justice, no not even a moment of clarity.

Memphis Attorney Sued for Masticating Man's Nose

The Memphis Commercial Appeal continues its coverage of the Attorney Mark Lambert's nose biting adventure with a report that the inevitable lawsuit has been filed by the victim, self-employed haridresser Greg Herbers.  And this additional bit of good news for Lawyer Lambert, Herbers was HIV positive!

When I was training to become a Bad Lawyer, learning to use your mouth was key, but do I even need to finish this thought...?

Tuesday, September 1, 2009

Innocence, so what this is Texas!

Don't miss this searing Bob Herbert column on the execution of Cameron Todd Willingham who was in all probability, innocent of the crime, the arson murder of his two small children--that he was executed for in Texas.

More Jimmy T

An action shot!


Hey NPR is reporting that Jimmy T gets out of prison today! The fashion world holds its collective breath!