Sunday, August 28, 2016

We only tip citizens

Lawyer denounces restaurant patrons for message they left his granddaughter
ABA Journal Daily News Blog
By Debra Cassens Weiss
Posted Aug 23, 2016 08:00 am CDT

A Virginia lawyer used Facebook to denounce two restaurant patrons who left no tip for their waitress and explained why on the credit card receipt.

In the line reserved for the tip amount, the couple wrote, "We only tip citizens." The 18-year-old waitress was a citizen and the granddaughter of John Elledge, a lawyer in Harrisonburg, Virginia, the Washington Post reports. WSVN and the Huffington Post also have stories.

Elledge took a photo of the receipt, which included the woman’s signature, and posted it on Facebook. "You are a complete and total piece of dung," he wrote.

Elledge tells the Post he flunked out of college and spent time in the Honduras in the 1980s working for the Episcopal Church as a bilingual English teacher. He met and married a Honduran woman and adopted her two children, one of whom is the father of the waitress.

"We’re a totally bicultural family," he says.

Elledge had also posted on Facebook that he would "happily do the jail time if I could get just one solid punch in to the face" of the person who wrote the note. But he didn’t carry through on the threat when he learned the angry couple returned to the diner.

Elledge tells the Washington Post that the woman demanded to know why she posted the receipt. "I said obviously, it was an insult—your signature against my granddaughter—darn right I’m going to post it. And no apologies."

Hat tip to Bloomberg Big Law Business.

Monday, July 4, 2016

Independence Day July 4, 2016

History of the Tuskegee Airman @8:14 and the 100th Fighter Squadron, 332d Fighter Group

Independence Day (United States)

Independence Day of the United States, also referred to as the Fourth of July or July Fourth in the U.S., is a federal holiday commemorating the adoption of the Declaration of Independence on July 4, 1776, by the Continental Congress declaring that the thirteen American colonies regarded themselves as a new nation, the United States of America, and no longer part of the British Empire.[1] Independence Day is commonly associated with fireworks, parades, barbecues, carnivals, fairs, picnics, concerts, baseball games, family reunions, and political speeches and ceremonies, in addition to various other public and private events celebrating the history, government, and traditions of the United States. Independence Day is the National Day of the United States.[2][3][4] Read more

United States Declaration of Independence

The Declaration of Independence is the statement adopted by the Second Continental Congress meeting at Philadelphia, Pennsylvania on July 4, 1776, which announced that the thirteen American colonies,[2] then at war with the Kingdom of Great Britain, regarded themselves as thirteen newly independent sovereign states, and no longer under British rule. Instead they formed a new nation—the United States of America. John Adams was a leader in pushing for independence, which was passed on July 2 with no opposing vote cast. A committee of five had already drafted the formal declaration, to be ready when Congress voted on independence. The term "Declaration of Independence" is not used in the document itself. Read more

In CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen United States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Read more

Hamilton, Washington, Jefferson
Creation myth, white Supremacy
SOA Watch, by Elizabeth Martinez

Every nation has a creation myth, or origin myth, which is the story people are taught of how the nation came into being. Ours says the United States began with Columbus's so-called "discovery" of America, continued with settlement by brave Pilgrims, won its independence from England with the American Revolution, and then expanded westward until it became the enormous, rich country you see today.

That is the origin myth. It omits three key facts about the birth and growth of the United States as a nation. Those facts demonstrate that White Supremacy is fundamental to the existence of this country.

A. The United States is a nation state created by military conquest in several stages. The first stage was the European seizure of the lands inhabited by indigenous peoples, which they called Turtle Island. Before the European invasion, there were between nine and eighteen million indigenous people in North America. By the end of the Indian Wars, there were about 250,000 in what is now called the United States, and about 123,000 in what is now Canada (source of these population figures from the book _The State of Native America_ ed. by M. Annette Jaimes, South End Press, 1992). That process must be called genocide, and it created the land base of this country. The elimination of indigenous peoples and seizure of their land was the first condition for its existence.

B. The United States could not have developed economically as a nation without enslaved African labor. When agriculture and industry began to grow in the colonial period, a tremendous labor shortage existed. Not enough white workers came from Europe and the European invaders could not put indigenous peoples to work in sufficient numbers. It was enslaved Africans who provided the labor force that made the growth of the United States possible.

That growth peaked from about 1800 to 1860, the period called the Market Revolution. During this period, the United States changed from being an agricultural/commercial economy to an industrial corporate economy. The development of banks, expansion of the credit system, protective tariffs, and new transportation systems all helped make this possible. But the key to the Market Revolution was the export of cotton, and this was made possible by slave labor.

C. The third major piece in the true story of the formation of the United States as a nation was the take-over of half of Mexico by war -- today's Southwest. This enabled the U.S. to expand to the Pacific, and thus open up huge trade with Asia -- markets for export, goods to import and sell in the U.S. It also opened to the U.S. vast mineral wealth in Arizona, agricultural wealth in California, and vast new sources of cheap labor to build railroads and develop the economy.

The United States had already taken over the part of Mexico we call Texas in 1836, then made it a state in 1845. The following year, it invaded Mexico and seized its territory under the 1848 Treaty of Guadalupe Hidalgo. A few years later, in 1853, the U.S. acquired a final chunk of Arizona from Mexico by threatening to renew the war. This completed the territorial boundaries of what is now the United States.

Those were the three foundation stones of the United States as a nation. One more key step was taken in 1898, with the takeover of the Philippines, Puerto Rico, Guam and Cuba by means of the Spanish-American War. Since then, all but Cuba have remained U.S. colonies or neo-colonies, providing new sources of wealth and military power for the United States. The 1898 take-over completed the phase of direct conquest and colonization, which had begun with the murderous theft of Native American lands five centuries before.

Many people in the United States hate to recognize these truths. They prefer the established origin myth. They could be called the Premise Keepers. Read more

Friday, June 10, 2016

Late-night comedian John Oliver buys nearly $15 million of medical debt--and forgives it

Late-night comedian John Oliver buys nearly $15 million of medical debt--and forgives it

ABA Journal Law News Now
By Martha Neil
Posted Jun 06, 2016 04:22 pm CDT

Late-night comedian John Oliver concluded a scathing review of the U.S. debt-collection industry on Sunday with a nearly $15 million giveaway of old medical debt.

"It is pretty clear by now debt-buying is a grimy business, and badly needs more oversight, because as it stands any idiot can get into it," Oliver told his audience on HBO’s Last Week Tonight with John Oliver. "And I can prove that to you, because I’m an idiot, and we started a debt-buying company. And it was disturbingly easy."

Oliver, who blamed what he said is a lack of effective regulation of the collection industry for abusive practices described on his program, said he and the show spent $50 to create a Mississippi-based debt-collection agency. Soon, they were offered a chance to purchase, legally, $14,922,261.76 in unpaid medical bills.

As the show explains, such debt may be passed from collector to collector, at lower and lower prices. Oliver said his team paid less than $60,000 to acquire the nearly $15 million in debt, according to CNN Money and USA Today.

Oliver then told the audience the debt would be forgiven, and the show is passing it on to a nonprofit that specializes in doing so.

In addition to aiding the debtors, the debt-forgiveness stunt—featuring huge dollar signs, a huge red button and confetti—helped HBO and Oliver. Because of the amount at issue, the comedian said, he has now topped an $8 million car giveaway to audience members during an Oprah show in 2004.

"I am the new queen of daytime talk!" Oliver told his audience.

Slate senior business and economics correspondent Jordan Weissmann quibbled with the value of the debt Oliver purchased. Oliver said the paper it purchased was "out-of-statute," Weissman said, which means it was so old it could no longer legally be collected.

The chances that Oliver’s debt-collection agency’s paper "was worth a lot more than $60,000 are fairly slim," Weissmann wrote. "With that all said, John Oliver likely just saved a whole lot of people some harassing phone calls and potential lawsuits. It was a wonderful gesture. He just didn’t really one-up Oprah." Read online

Also see Slate Academy’s The United States of Debt

Monday, June 6, 2016

Man hurt by SWAT team as he tried to cash check can seek another $3.3M award from Bank of America

Man hurt by SWAT team as he tried to cash check can seek another $3.3M award from Bank of America

ABA Journal Law News Now
By Martha Neil
June 03, 2016

When Rodolfo Valladares went to a Florida branch of the Bank of America in 2008, he was just trying to cash a $100 check.

But after he was mistaken for a robber by a teller, a SWAT team was called, and Valladares was kicked in the head by responding law officers, allegedly sustaining life-altering permanent injuries.

He filed suit and won a $3.3 million Miami-Dade jury verdict, then saw it reversed by an appeals court. On Thursday, the state’s top court said the earlier determination that Valladares had no cause of action was a mistake.

However, instead of reinstating the $3.3 million verdict, the Florida Supreme Court held that erroneous jury instructions require a new trial for the negligence, battery and false imprisonment case, according to CBS Miami.

The saga began with an email about a bank robber circulated to Bank of America personnel, which included a photo of the robber wearing a Miami Heat baseball cap and sunglasses. When Valladares arrived at the branch, he also was wearing a Miami Heat baseball cap and sunglasses but otherwise did not match the description of the robber, an earlier ABC News story explains.

Nonetheless, mistaking Valladares for the robber, the teller triggered a silent alarm and engaged him in conversation, even though he did nothing, then or later, to suggest that he intended to rob the bank, the supreme court says in its written opinion (PDF).

Even when Valladares presented her with a Bank of America check imprinted with his own information and his driver’s license, the teller didn’t correct her mistaken report to authorities that he was a bank robber, the opinion notes. Thus, although the bank argued that it had a privilege to tell law enforcement about suspected criminal activity and hence was immune from suit, the supreme court disagreed.

"Public policy supports a limited immunity for those who make innocent, simple mistakes, but that limited immunity cannot extend to conduct that recklessly disregards the rights of others," the majority wrote, explaining its 5-2 decision. "In the case of Valladares, the bank had ample information and ample time to know the true facts and to correct the false report, but failed to do so. Once there is information indicating that a crime is not being committed, this limited privilege should not extend to a person’s failure to alert law enforcement that a reported crime is a mistake or simply wrong." Read online

Monday, May 23, 2016

US is an oligarchy, not a democracy

Study: US is an oligarchy, not a democracy
BBC News

The US is dominated by a rich and powerful elite.

So concludes a recent study by Princeton University Prof Martin Gilens and Northwestern University Prof Benjamin I Page.

This is not news, you say.

Perhaps, but the two professors have conducted exhaustive research to try to present data-driven support for this conclusion. Here's how they explain it:

Multivariate analysis indicates that economic elites and organised groups representing business interests have substantial independent impacts on US government policy, while average citizens and mass-based interest groups have little or no independent influence.

In English: the wealthy few move policy, while the average American has little power.

The two professors came to this conclusion after reviewing answers to 1,779 survey questions asked between 1981 and 2002 on public policy issues. They broke the responses down by income level, and then determined how often certain income levels and organised interest groups saw their policy preferences enacted.

"A proposed policy change with low support among economically elite Americans (one-out-of-five in favour) is adopted only about 18% of the time," they write, "while a proposed change with high support (four-out-of-five in favour) is adopted about 45% of the time."

On the other hand:

When a majority of citizens disagrees with economic elites and/or with organised interests, they generally lose. Moreover, because of the strong status quo bias built into the US political system, even when fairly large majorities of Americans favour policy change, they generally do not get it.

They conclude:

Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association and a widespread (if still contested) franchise. But we believe that if policymaking is dominated by powerful business organisations and a small number of affluent Americans, then America's claims to being a democratic society are seriously threatened.

Eric Zuess, writing in Counterpunch, isn't surprised by the survey's results.

"American democracy is a sham, no matter how much it's pumped by the oligarchs who run the country (and who control the nation's "news" media)," he writes. "The US, in other words, is basically similar to Russia or most other dubious 'electoral' 'democratic' countries. We weren't formerly, but we clearly are now."

This is the "Duh Report", says Death and Taxes magazine's Robyn Pennacchia. Maybe, she writes, Americans should just accept their fate.

"Perhaps we ought to suck it up, admit we have a classist society and do like England where we have a House of Lords and a House of Commoners," she writes, "instead of pretending as though we all have some kind of equal opportunity here." Read more

Oligarchy Wikipedia

Oligarchy is a form of power structure in which power effectively rests with a small number of people. These people might be distinguished by royalty, wealth, family ties, education, corporate, religious or military control. Such states are often controlled by a few prominent families who typically pass their influence from one generation to the next, but inheritance is not a necessary condition for the application of this term. Read more

Bernie Sanders

Bernard "Bernie" Sanders (born September 8, 1941) is an American politician and a candidate for the Democratic nomination for President of the United States in the 2016 election. He is the incumbent junior United States senator from Vermont. A member of the Democratic Party since 2015,[2] Sanders had been the longest-serving independent in U.S. congressional history, though his caucusing with the Democrats entitled him to committee assignments and at times gave Democrats a majority. Sanders became the ranking minority member on the Senate Budget Committee in January 2015; he had previously served for two years as chair of the Senate Veterans' Affairs Committee. A self-proclaimed democratic socialist, Sanders is pro-labor and favors greater economic equality.

Presidency of Theodore Roosevelt

The Presidency of Theodore Roosevelt was the executive branch of the United States government from September 14, 1901 to March 4, 1909....

...Owing to his charismatic personality, his extremely high energy levels and span of interests, and his reformist policies, which he called the "Square Deal", Roosevelt is considered one of the ablest presidents and an icon of the Progressive Era...

...He distrusted wealthy businessmen and dissolved 44 monopolistic corporations as a "trust buster." He took care, however, to show that he did not disagree with trusts and capitalism in principle, but was only against their corrupt, illegal practices...Read more on PBS

TR Center - Theodore Roosevelt - The Sherman Anti-Trust Act of 1890 became law while Theodore Roosevelt was serving on the U.S. Civil Service Commission, but it played a large and important role during his presidency.

Opinion: We also live in a Republic, not a Democracy. Recall your Pledge of Allegiance:

I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.

We live in a Republican Oligarchy. 

Link to free PDF of the study by Martin Gilens and Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens.

US Is an Oligarchy Not a Democracy, says Scientific Study, Common Dreams

Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens

Saturday, May 14, 2016

Former senator: Release the uncensored truth about 9/11

In this Sept. 11, 2001 file photo, smoke rising from the burning twin towers of the World Trade Center after hijacked planes crashed into the towers, in New York City. (Richard Drew/AP)

Former Senator Bob Graham
Former senator: Release the uncensored truth about 9/11
The Washington Post
Opinion, Bob Graham
May 11, 2016

Bob Graham, a Democrat, represented Florida in the U.S. Senate from 1987 to 2005.

Nearly 15 years after the horrific events of 9/11, President Obama must decide whether to release 28 pages of information withheld as classified from the publicly released report of the congressional inquiry into the terrorist attacks that killed thousands of Americans.

On April 10, the CBS program "60Minutes" aired a story about the missing 28 pages. I was one of several former public officials — including former House Intelligence Committee chairman and CIA director Porter Goss (R-Fla.) ; Medal of Honor recipient and former senator Bob Kerrey (D-Neb.); former Navy secretary John Lehman; and former ambassador and representative Tim Roemer (D-Ind.) — who called on the White House to declassify and release the documents.

Two days after that broadcast, I received a call from a White House staff member who told me that the president would make a decision about the 28 pages no later than June. While that official made no promises as to what Obama would do, I viewed the news as a step in the right direction.

My optimism about the administration’s action on this critical issue was short-lived. On May 1, when CIA Director John Brennan appeared on NBC’s "Meet the Press," I watched with astonishment as he argued that the 28pages should not be released because the American people are incapable of accurately evaluating them.

When asked by host Chuck Todd to make the case against releasing the information, Brennan replied, "I think some people may seize upon that uncorroborated, unvetted information that was in there that was basically just a collation of this information that came out of FBI files, and to point to Saudi involvement, which I think would be very, very inaccurate."

With all due respect, that argument is an affront not only to the American public in general but also to all those who lost family members, loved ones and friends on that fateful September day in 2001. Americans are fully capable of reviewing the 28 pages and making up their own minds about their significance.

As co-chair of the Joint Inquiry Into the Terrorist Attacks of September 11, 2001, I have read the 28 pages. My oath of confidentiality forbids me from discussing the specifics of that material. But while I cannot reveal those details, I strongly believe the American people deserve to know why this issue is so important. All of the references below are from the declassified, public version of the Joint Inquiry’s final report. Read more

 Bob Graham Wikipedia

Wednesday, May 11, 2016

Antiwar Priest Daniel Berrigan Remembered

"One of the Great Revolutionaries": Daniel Berrigan Remembered as Hundreds Gather for Funeral
Democracy Now
by Amy Goodman
May 9, 2016

Left: Father Berrigan, right and his brother Philip Berrigan seized hundreds of draft records and set them on fire with homemade napalm in 1968.

More than 800 people packed into the Church of St. Francis Xavier in New York Friday for the funeral of Daniel Berrigan, the legendary antiwar priest, poet and activist. He died on April 30 at the age of 94. Today would have been his 95th birthday. Dan and his brother, the late Phil Berrigan, made international headlines in 1968 when they and seven other Catholic antiwar activists burned draft cards in Catonsville, Maryland, to protest the Vietnam War. Prior to the funeral, hundreds took part in a two-hour procession beginning at Mary House, a Catholic Worker house in the East Village. Democracy Now!’s Mike Burke was there and spoke to participants including singer Dar Williams, the Rev. John Dear, Dan’s niece Frida Berrigan, Kathy Kelly and John Schuchardt, who was arrested with Dan in 1980 when they broke into the GE nuclear missile plant in King of Prussia, Pennsylvania, launching the Plowshares Movement. Read more

Rev. Daniel J. Berrigan gave an anti-war sermon at St. Patrick’s Cathedral in New York, 1972. William Sauro/NYT

Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94
The New York Times
April 30, 2016

The Rev. Daniel J. Berrigan, a Jesuit priest and poet whose defiant protests helped shape the tactics of opposition to the Vietnam War and landed him in prison, died on Saturday in the Bronx. He was 94.

His death, at Murray-Weigel Hall, the Jesuit infirmary at Fordham University, was confirmed by the Rev. James Martin, editor at large at America magazine, a national Catholic magazine published by the Jesuits.

The United States was tearing itself apart over civil rights and the war in Southeast Asia when Father Berrigan emerged in the 1960s as an intellectual star of the Roman Catholic "new left," articulating a view that racism and poverty, militarism and capitalist greed were interconnected pieces of the same big problem: an unjust society.

It was an essentially religious position, based on a stringent reading of the Scriptures that some called pure and others radical. But it would have explosive political consequences as Father Berrigan; his brother Philip, a Josephite priest; and their allies took their case to the streets with rising disregard for the law or their personal fortunes.

A defining point was the burning of Selective Service draft records in Catonsville, Md., and the subsequent trial of the so-called Catonsville Nine, a sequence of events that inspired an escalation of protests across the country; there were marches, sit-ins, the public burning of draft cards and other acts of civil disobedience. Read more

Thursday, April 28, 2016

When will lawyers rise (like elevators) to the occasion?

D. Casey Flaherty

When will lawyers rise (like elevators) to the occasion?
ABA Journal News Online
By D. Casey Flaherty
March 17, 2016

It took 50 years from the advent of the driverless elevator for the public to become comfortable enough to use them. Even then, it was only because the elevator operators’ union went on strike and Big Elevator finally went the Mad Men route of advertisements showing children gleefully pressing the buttons. Before the public campaign, people would get into the empty elevator, wait, and angrily exit to find the operator.

It is a matter of intense debate whether lawyers will find themselves facing the same kind of technological unemployment that has caused elevator operators to all but disappear. That, however, is not the analogy that interests me. I am not sure what the future holds.

But in the present, too many lawyers share much of the helplessness, frustration and unnecessary labor of the passengers who take the stairs for want of operators to hit the elevator buttons for them. The truth is that even if we could press pause on technological progress, the legal community would still have considerable work to do to integrate existing process and technology improvements into the delivery of legal services.

With the focus on the divergent conclusions reached by those welcoming our new robot overlords and those doubting the mass displacement of lawyers by capable machines, overlooked is the fact that these authors fundamentally agree that technology already has changed and will continue to change the way that law is practiced. The point of disagreement is over the scope of the change in the future, not whether change is happening or whether that change means that lawyers need to adapt. There is unanimity that the profession cannot meet the challenges of the modern world without taking advantage of the innovations that make the world modern.

The sardonic engineering joke that when brute force fails, you aren’t using enough, has long been an operating a principle in legal market that has thrown highly educated bodies at the accelerating problems of scale and scope (think legions of document review attorneys). Brute human force only goes so far in the era of big data. "Big data" is one of those labels that, like "disruption," may suffer from terminal misuse. But the framework erected to explain big data does a serviceable job of describing the mounting challenges of operating in the modern world. The standard four V’s of big data are volume, velocity, variety, and veracity. We operate in situations of increasing uncertainty as we attempt to handle more diverse matter faster. Or, in the mantra of in-house counsel, we keep trying to do more with less. This means increasing reliance on machines. As economist Alex Tabarrok explains:

  • It’s not simply that the algorithms are good and getting better: It’s that the highest-productivity people will use their human intelligence to complement machine intelligence. That means trusting the machine to curate millions of items, bringing only the most important to your attention, and then using human intelligence to take action on the most important items … Even when the filter is imperfect, you are more likely to discover something of importance from 100,000 items imperfectly filtered to 100 than from 1000 items perfectly filtered to 100.

As Tyler Cowen argued in Average is Over, the future belongs to people who can defer to the algorithm.

Google and spam filters are further examples of algorithms that are both imperfect and absolutely essential given our concerns about the veracity of information that keeps increasing in volume, velocity, and variety. Indeed, one could argue (jokingly) that Google is just trying to replicate at scale that which lawyers have been doing all along: "Google’s algorithms produce educated guesses based on similar, recent, citable precedents from the highest authority in your jurisdiction. Google just happens to do this instantly and at an incomprehensible scale (45 billion pages and counting)." Despite our head start, Dan Katz estimates that lawyers are about 40 years behind other industries on the spectrum of technology diffusion.

Lawyers are absolutely using more technology than ever before (and expressly reducing their administrative support staff on that basis). Some lawyers are quite good with technology. But, overall, the rate of adoption and adaption are maddeningly slow.

To take the most ordinary examples, we remain universally terrible with Word, Excel, PDF and other ubiquitous desktop software that we’ve been using since the dawn of Windows. Our inboxes (PDF) are both a disaster and our primary document management systems, a function for which they are ill suited. Time wasted on digital research remains a huge pain point (PDF). We are way behind on the use of e-signatures (PDF) despite technological advancements and legislative changes that are almost two decades old. We have barely scratched the surface of document assembly, document automation (PDF), knowledge management, and expert systems that have been available since the ’80s. And the less said about cybersecurity (PDF), the better.

It may very well prove true that human + machine will outperform human or machine alone. But that only holds if the human is actually using the machine instead of waiting angrily for the operator to arrive.

D. Casey Flaherty is the founder of the legal tech consultancy Procertas, provider of the Legal Tech Assessment. He was a 2013 ABA Legal Rebel. He also serves on the board of advisors of NextLaw Labs.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.

Updated on April 15 to fix a typo.

 My response here after the ABA comments closed: mcorleone wrote: "Legal intellect is a commodity outside of the top 5% of lawyers." Agreed, one of the best comments ever on this site. Problem for the public, the other 95% of lawyers generate excessive rents and contribute little value for their "commodity" which arguably could be provided by a paralegal or Watson, etc.

Generally, the 95% maintain the status quo through mandatory state bar organizations, UPL laws, and the Lawyer-Judge Bias in the American Legal System. Another problem not discussed, certain unified state bars (Florida) that have essentially abandon the rule of law, and make a mockery of Model Rule 8.3: Reporting Professional Misconduct

Maintaining The Integrity Of The Profession
Rule 8.3 Reporting Professional Misconduct
  • (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
  • (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
Until the judiciary replaces the lawyer-judge model, the legal profession will continue downward. Lawyers are trained to advocate for clients. Prosecutors are trained to advocate for the state. Judges are supposed to be neutral, but all judges are either former lawyers and/or are former prosecutors. A truly independent judiciary requires a judicial profession separate from the legal profession, civil servant judges who are not trained as lawyers or prosecutors, and who have not practiced law. Civil servant judges trained as neutral judges, aided by Watson, Al, or computer judges.

Under our current lawyer-judge model, judges too often are lawyers who can’t earn a living practicing law anymore. They take campaign contributions from lawyers, money with an implicit expectation of return.

Likewise with the adversarial system; really just a fee generator that is broken in many parts of the country. See Amy Bach, Ordinary Injustice, collapse of the adversarial system
The collapse of the legal system is only a matter of time. These stories are too little, too late.
 Can/Should Computers Replace Judges? by Anthony D’Amato
11 Georgia Law Review 1277-1301 (1977)

"The most important inquiry in jurisprudence has always seemed to me to be whether it is
possible to have the rule of law rather than the rule of persons. In what sense can an abstraction
called "law" actually shape the lives and channel the behavior of persons? Does law "dictate" the
proper result in a given case even if the judge's personal inclinations would be to award the
decision in a different fashion? And how can we tell? Judges are preeminently capable of
rationalizing their results and couching them in appropriate-sounding legal phrases."

Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?
ABA Technology Assisted Review: The Judicial Pioneers

Monday, April 11, 2016

Judge orders eviction of 100-year-old woman for causing commotion

Evelyn Heller
Judge orders eviction of 100-year-old woman for causing commotion
ABA Journal
By Debra Cassens Weiss
April 05, 2016

A judge in Riverside County, California, evicted a 100-year-old woman from her Palm Springs apartment on Friday based on a request from her landlord, who sought her ouster because of alleged loud arguments and "deplorable conditions" in her apartment.

The woman, Evelyn Heller, defended herself, the Desert Sun reports. She did a brief hula dance after being sworn in, then later hovered by the judge’s bench during arguments. She was unable to read a court document until someone in the audience volunteered her eye glasses.

A Desert Sun reporter who visited Heller’s apartment said her carpet was dirty and her living room was cluttered with boxes and stacks of magazines. The mess, however, was "far from the point of hoarding," the newspaper reported.

The landlord, Deep Canyon Desert, was represented by William Windham. He told the Desert Sun he felt conflicted but it was part of his job as an eviction specialist.

"I’ve evicted people off of their death beds and regretted every second of the trial," Windham said. "But my job is unfortunately to set my feeling aside and do what my clients ask me to do."

"It would be same if this was a lady who was 30 years old and had five children, or a little old man with cancer," he told the Desert Sun. "If you have a commotion being caused on the property, and the people won’t stop, you have no choice but to take action."

Heller didn’t realize she had lost the case until a deputy told her outside the courtroom. She has two weeks to find a new place to stay. Read more

100-year-old woman booted from her Palm Desert home
The Desert Sun
By Brett Kelman
April 2, 2016

Evelyn Heller, a frail-but-feisty great-grandmother with a long white ponytail, shuffled across a Palm Springs courtroom, barely lifting her feet taking tiny steps. When she reached the judge’s bench, she eased forward on to her toes, then leaned in close, as if unable to see the man in front of her.

"I’m 100 years old!" Heller shouted, before turning her attention to an attorney on the other side of the courtroom. "And I don’t understand what they are talking about."

Heller, a Coachella Valley resident who was born in 1915, was evicted from her Palm Desert apartment during a brief trial at the Palm Springs courthouse on Friday morning. Despite reluctance voiced by both the judge and the plaintiff’s attorney, Heller was ordered out of her home, and told to pay $616 in prorated rent and more than $800 in court and attorney’s fees.

She now has about two weeks to leave her apartment. Heller said she does not know where she will go.

"I have four grandsons, but I don’t want to be dependent on them," Heller told the judge, pleading. "I can’t be a burden to my family. They don’t have room for me. That happens in life."

Heller’s landlord, Deep Canyon Desert LLC, which owns and manages a small cluster of beige apartments at 45200 Deep Canyon Road, said it wanted Heller evicted because she often had loud, disruptive arguments with one of her daughters. The company threatened to evict her twice before, but nothing improved, so it followed through this time.

The apartment complex manager, Melody Morrison, also told a judge said Heller kept the apartment in "deplorable conditions." A Desert Sun reporter who visited the apartment on Friday afternoon found the carpet dirty and the living room cluttered with boxes and stacks of magazines, but far from the point of hoarding.

After court, Morrison declined to comment, then walked briskly away from a reporter to avoid questions. The company’s attorney, William Windham, an eviction specialist, said his client did not want to evict Heller, but felt it was a reality of their business.

Windham said he felt conflicted too.

"I’ve evicted people off of their death beds and regretted every second of the trial," Windham said. "But my job is unfortunately to set my feeling aside and do what my clients ask me to do."

"It would be same if this was a lady who was 30 years old and had five children, or a little old man with cancer," he added. "If you have a commotion being caused on the property, and the people won’t stop, you have no choice but to take action."

In this case, that action came in the form of an "unlawful detainer," which is a mundane court filing in which a landlord asks a judge to force a tenant from a property. Cases like these are rarely worthy of media attention, but the trial held on Friday morning was a strange one.

Heller defended herself, despite the fact that she could barely see or hear. After she took an oath to tell the truth, she kept her hand raised and did a brief hula dance, then laughed under her breath. Her eyesight was too poor to read court documents until someone volunteered a pair of eye glasses from the courtroom audience.

And finally, when it came time for arguments, Heller refused to stay at the defendant’s table, and instead hovered on the edge of the judge’s bench, unwilling to sit. For most defendants, this would result in a firm response from the bailiffs – including possible arrest – but as Heller pleaded with the judge, barely out of arm’s reach, deputies stood back and watched, uncertain how to react.

This leniency appeared to be a sign of sympathy, but in the end it didn’t matter. Riverside County Judge Charles Haines ruled against Heller without any deliberation. He issued his judgment in a low, hushed tone that she couldn’t hear.

Outside the courtroom, a deputy had to explain to her that she had lost.

"What? What kind of ridiculous thing is that?" she snapped, as the reality of the ruling set in. "But I don’t have any money." Read online

Reporter Brett Kelman can be reached at (760) 778 4642, or @TDSbrettkelman on Twitter.

Thursday, March 31, 2016

How extortion mills (courthouses) work

How extortion mills (courthouses) work
By Carey Wedler

A couple weeks ago, [Carey Wedler] spoke with victims of the state's force and fines on their way out of court. Here we discuss [with Dustin Kelly] why the government does whatever it wants and whether or not its services are worth the hassle.

Wednesday, March 30, 2016

Judge Posner suggests changes to improve jury trials

Posner says Bluebook is '560 pages of rubbish,' suggests changes to improve jury trials
American Bar Association (ABA) Journal
By Debra Cassens Weiss
March 29, 2016

Judge Richard Posner acknowledges his reputation as a "naysayer" and "faultfinder" yet proceeds to find fault with The Bluebook (it is "560 pages of rubbish") and the uneven quality of trial lawyering.

Lawyers often differ greatly in quality, and that distorts the trial process, according to Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals. A uniform system of lawyer pay—funded by the government—could reduce uneven quality, Posner says in an article (PDF) for the Green Bag. His one-paragraph pay suggestion is part of a broader analysis of problems with jury trials and appellate litigation.

"Differences in the quality of lawyers wouldn’t matter a great deal," Posner writes, "if, for example, they were compensated as judges are: with a uniform government salary unrelated to outcomes or the relative wealth of the respective parties in a case. (The analogy is to a ‘single payer’ system of medical care.) There would then be no contingent fees and no $1,100 an hour billing rates. My pay isn’t docked if I’m reversed by the Supreme Court, and neither do I get a bonus if the Court affirms a decision of mine."

Posner goes on to quote a commentator who says commercial lawyers are working in a "zero-sum tournament" in which additional legal effort purchased by a party increases the chances of winning, rather than generating more justice. In a footnote, Posner says he wouldn’t limit the critique to commercial lawyers.

Posner calls the legal profession "complacent, self-satisfied" despite a legal system that has proven ineffectual at dealing with a host of problems. Among them: problems in delivering useful legal training at bearable cost, and in providing representation to "the vast number of Americans who are impecunious or commercially unsophisticated (so prey to sharpies)."

Posner goes on to propose changes that could improve jury trials. He endorses judges appointing neutral experts in cases involving difficult technical issues, giving jurors transcripts of testimony that can be read simultaneously with the testimony, and allowing trial judges to do Internet research (as long as lawyers can contest the results).

Posner also suggests that judges eschew pattern jury instructions that are "largely unintelligible to jurors." Posner says he writes his own jury instructions when he conducts trials as a volunteer in his circuit’s district courts.

Posner also dislikes The Bluebook. He has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.

"The first thing to do," Posner writes, "is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook."

Posner also criticizes appellate opinions, which "tend to be overlong, crammed with irrelevant facts and repulsive legal jargon." Read more

What is Obviously Wrong With The Federal Judiciary Yet Eminently Curable
19 GREEN BAG 2D 187, Part I, by Richard A. Posner

The problem when capitalists make nothing but money
The Times Literary Supplement, by Paul Collier 

The Green Bag Official website; Green Bag literature; The Green Bag Wikipedia
The Bluebook A Uniform System of Citation; Bluebook Wikipedia
 Baby Blue (PDF) is a free alternative to the Bluebook