Loving Your Office

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Photo by Chris Petsos Photography. Many more great shots at his site. Click on image above to get there.

Lawyers have to make decisions on their offices: Make it nice? Or make it inexpensive? Rarely do the two concepts coincide.

We spend a lot of time in our offices.  Other than our homes, this is it.

This came to mind when I saw an article in the Sunday real estate section of the Times on my old stomping ground: The Woolworth Building.

My office was on the 8th floor, overlooking Broadway (and ticker tape parades) and City Hall Park (and the people who’d shout and scream at Mayor Guiliani).

I loved that building. As I walked into the office each day through the lobby of this gothic style skyscraper — once the world’s tallest, with its vaulted mosaic ceiling, gargoyles, and crowds of tourists gawking at its magnificence — I couldn’t believe I actually worked there.

And I enjoyed going in to work. It made me feel good to be there. I was productive. And it was a fine contrast to the windowless office that I started my solo career in, with a big mirror that I bought to give it the illusion of something bigger than a glorified closet.

Since leaving the Woolworth, each of my offices has been nice. Spacious. Welcoming. With pictures of my family filling the walls.  The diplomas are on the wall behind me, where I don’t need to look at them.

Today’s rumination isn’t just for those looking for offices for themselves, but those in charge looking for their staff. Do you want them to look forward to work or do you want them miserable coming in? While this formula isn’t ironclad, I think it has a lot of validity, both for lawyers and staff:

Comfortable office = productive lawyer

Don’t be cheap unless you absolutely have to. Remember how much time you’ll spend there, and make sure it’s a place you want to go to each day.

Apple, Privacy and Law

ApplePayYesterday Apple had its massive product presentation and one of the products it announced was a new pay system for credit cards, Apple Pay. Load the cards into an iPhone, and then just wave them in front of a techno-gadget at the check-out counter and you’re done. Simple.

Why might this be important? Currently, big business is tripping all over itself to gather as much information on you as possible, taking away big chunks of your privacy.

A 2012 New York Times piece on Target explained how, based on the buying patterns of a teenager — unscented lotions, vitamin supplements and other non-pregnancy related products — it knew she was pregnant early on and sent coupons for maternity clothes to her home. Her father was livid. And unaware of his daughter’s state.

Target is obviously not alone in doing everything possible to create massive data banks about you. Data banks that, perhaps, can then be hacked into (or subpoenaed).

Personally, I find myself using cash more and more often, as I cherish my privacy.

But Apple Pay may reverse that direction. According to CEO Tim Cook, the iPhone encrypts the card numbers, and when you make a purchase, the store can’t attach product information to your purchase.

That’s because the store doesn’t even get your name, much less your card number. Hacking the store’s computers should keep the consumer safe (again, see Target, and its loss of 40M credit card numbers).

And even Apple doesn’t get the information. From the Apple website, two key paragraphs:

Apple doesn’t save your transaction information.With Apple Pay, your payments are private. Apple doesn’t store the details of your transactions so they can’t be tied back to you. Your most recent purchases are kept in Passbook for your convenience, but that’s as far as it goes.

Keep your cards in your wallet. Since you don’t have to show your credit or debit card, you never reveal your name, card number or security code to the cashier when you pay in store. This additional layer of privacy helps ensure that your information stays where it belongs. With you.

If this works as planned, it has the potential to (partially) reverse our headlong dumping of personal information about ourselves into the computers of Big Business, both with respect to the items we buy as well as the cards we use.

The less data that exists in the data banks, the less it can be abused.

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery.  A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure.  Or maybe the company acted with “conscious disregard of known risks.

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.

GPS is Making Us Dumber (And other thoughts on the law)

GPSMakingUsDumberSome folks want directions when they go someplace new. Others want a map.

The directions tell you lefts and rights. The map tells you where you came from and where you need to go.

Many GPS devices simply tell you to make those rights and lefts. They don’t tell you where you are. And thus we become unthinking followers.

GPS devices were wrong at least twice on last week’s family vacation in Maine, once while I followed a family member and a second time while sitting shotgun. The GPS said to go one way and my brain said to go the other. The only reason I overruled the GPS directives was because I’d looked at a map before leaving.

So how is this related to law? All too often I see it at depositions, where the other lawyer comes prepared with page after page of questions to ask — the same questions at every deposition.

The lawyer follows the directions given, dutifully jotting down the responses.

The highly detailed outline is like the GPS. It tells you which questions to ask, but doesn’t give you a road map of where you actually need to go.

But the road map exists. It’s in the instructions that the judge will give to the jury at the end of the case. This is the map of what you need to prove, and thus needs to be the focus of the questions. It isn’t just that you need those instructions before the deposition, but that you need them before you file suit (or when retained to defend).

This requires thinking, not following. The lawyer that thinks, instead of follows, will do a deposition that is half as long and twice as useful.

It’s OK to have a general outline, of course, as you wouldn’t want to miss out on an important topic. But becoming a slave to the outline is the danger. Topics are good, specific questions from stock outlines, not so much.

My advice: Leave the directions, take the map.

Cops in Tanks vs. Cops on Bikes

Police Shooting MissouriThe juxtaposition of the pictures couldn’t be more stark.  Out in Ferguson, Missouri, in the wake of  an unarmed teen being shot dead by a cop, we see a militarized police force racing in to use all their toys of crowd control: Tear gas, rubber bullets, armored personnel carriers and, of course, the military-style uniforms with riot armor. Everything about it screams, “Stay the hell away from us.”

And the other picture is one I noted on the Gothamist a couple weeks back: A cop on a bike. The article is ostensibly about being caught riding on the sidewalk, but that isn’t what captured my eye. No, I looked and saw an extremely approachable human.

073014nypdbikeWhich cop do you want on your street? The one that says stay away, or the one that waves hello?

Which cop is more likely to be a calming effective?

Which cop is more likely to antagonize and make a situation worse?

Which one is more likely to infringe on the rights of others?

Which one will cost the taxpayers more money, both in hardware and lawsuits?

Which cop is the one that people would most likely to approach with important information?

Do we pay the cops to protect us, or protect themselves?

And now, the local cops are gone from Ferguson and the highway patrol cops have come in. And what did they do? They walked around in regular cop uniforms without all the toys and chatted with the protestors and worked to calm things down. Some protestors got hugs.

The Ferguson cops seem to have done everything they could to make the situation worse, though this is helped with the dumping of excess military hardware into our police departments. Hey, if you have toys, don’t those toys have to get used?  (See, Rise of the Warrior Cop, The Militarization of America’s Police Forces, by Radley Balko.)

One can only hope that police departments around the country are taking studious notes on crowd control, and leaning what not to do.  The use of military weapons in civilian areas is a horrible trend, and the fall-out from it can affect any one of us.

More Motions to Dismiss Against Dr. Michael Katz

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Justice Hart’s opinion of Dr. Katz.

Your familiarity with the defamation suit against me by Dr. Michael Katz will be presumed. Very briefly, he’s the guy that sued me because Justice Duane Hart called him a liar about 25 times and I reported it. He can’t sue the judge, so he figured he would sue me. I’ve moved to dismiss and have him sanctioned for his frivolous suit, frivolous conduct, and making an improper demand for $200 million.

My co-defendants have now also made motions to dismiss. Samson Freundlich did a “me too” motion (Affid – Freundlich) that includes this gem of a sentence that gave me a laugh:

I hereby reiterate, stress, pinpoint, underscore, focus, resonate, emphasize and magnify their same, similar and identical legal posture to myself, defendant SAMSON FREUNDLICH and incorporate into this affirmation all of their said motion papers-including, but not limited to, their memorandum of law with their annexed respective exhibits previously submitted to this honorable court and heretofore respectfully adopt, restate and recapitulate, without exception, all of their legal and factual arguments presented therein in their entirety.

And co-defendants Lester, Schwab, Katz & Dwyer and its partner Paul Kassirer, cross-moved with this filing today: Memo of Law. Theirs is a bit different than ours since we did an original publication of blog posts and theirs deals primarily with an email that Kassirer sent.

Additional documents in that filing are Kassirer’s Affidavit and this July 29 Order where the defendants in the underlying action tried to get a different doctor to do a new defense medical exam after Justice Hart made mincemeat out of Katz, out of concern that Katz would be shredded on cross-examination due to the judicial findings by Justice Hart that he had lied. That application for a new medical-legal exam was denied.

Motion to Dismiss/Sanction Against Dr. Michael Katz

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This is what Justice Duane Hart thinks of Dr. Michael Katz

Remember how I reported that I’d been sued again for defamation? Justice Duane Hart in Queens had ripped Dr. Michael Katz a new one in open court for acting like Pinocchio. And the good doctor, not being able to sue the judge for calling him a “liar” about 25 times or so, figured he would sue me instead for reporting it. (Shooting the Messenger (I’ve Been Sued Again))

Both Scott Greenfield (Turkewitz Sued By “Liar” Doctor, Michael Katz) and Marc Randazza (Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It) mocked the lawsuit.

Well, the motion to dismiss was filed this morning. And with it, the motion for sanctions. Against both the doctor and the lawyers who drafted this misbegotten, ill-advised, mongrel of a suit destined for the trash heap of history.

Having sued me on five separate causes of action, the memo runs a bit long. But this is the lede from the Memo of Law:

Last year Justice Duane Hart in Queens made numerous acidic comments about well-known defense orthopedist Michael J. Katz, calling him a liar at least 25 times (among other things). Eric Turkewitz reported on these extraordinary court proceedings on his law blog. Since Katz can’t sue the judge, he sued Turkewitz instead for reporting on what the judge said, claiming defamation, as well as a kitchen sink of other claims based on the exact same protected conduct. Not only must the case be dismissed since such reportage is absolutely protected by the law, but sanctions should be imposed against the plaintiffs for each of the clearly frivolous claims.

Part of that kitchen sink of claims that were alleged, to act as a bastard surrogate for defamation, is prima facie tort. About this, the brief says:

Prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It is not a catch-all alternative for every grievance, annoyance, gripe and squawk  that is not independently viable.  There is no cause of action for saying mean things about someone on the Internet. Not in this country.

For those that care about the sanctions part, and what it means in New York, the brief gets there at page 28 after deconstructing each of the causes of action, and includes this piece:

It is important to note that the CPLR sanctions are set at $10,000 per prevailing party and each individual claim.  For the purposes of this matter, there are two plaintiffs and two defendants and five frivolous claims, thus subjecting the plaintiffs to as much as $200,000 in costs under CPLR 8303-a.  A long analysis of this subject was done by Justice Lebedeff in In Re Entertainment Partners Group, Inc. v. Davis,.

The complaint he filed is here, where Katz confesses in exquisite and meticulous fashion about the judicial reaming he got. You’ll find it on pages 15-30. Yeah, you read that right, it took him 15 pages to describe all the times he was called a liar.

Having confessed, conceded, declared, attested and otherwise sung to the world that Justice Katz did, in fact, call him a liar, it is remarkable that any lawyer would take this matter and sue me for reporting on what happened in court. Any lawyer worth a damn knows the suit is empty, which means to me that the only logical reason it could have been taken is either because Katz offered the firm enough money to do so, or Katz is a friend/relative of someone at the firm. But friends don’t let friends file frivolous suits.

Which is why the most important word a lawyer needs to know is “no.” Placing your client, and yourself, in the line of fire for sanctions is, as we say in legalese, an ill-considered, imprudent, insane, misguided, half-baked, bird-brained, blockheaded, short-sighted and otherwise dumb-ass thing to do. I’ve said this before my friends, and I’ll say it again: I have a thesaurus and I’m not afraid to use it.

For those that care about such things, this is the transcript of the original testimony on April 12 2013.

The transcript of the July 1st proceeding is here.

The transcript of the July 8th proceeding is here.

A supporting affidavit from my counsel is here.

The video of the one minute and 56 second exam that Katz did was up on YouTube, but YouTube took it down, despite it being part of a legal proceeding.
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Update (7/31/14): My co-defendants have now also moved to dismiss.

Dolphins and Lawyers and Baja

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Not me. And not from the place we went.

Is there a relationship between swimming with dolphins and lawyering? Why, yes there is, and thank you for asking.

Let me start by saying that this is all about business and keeping the customer happy. Since lawyers are in a service business, the same concept holds true for a law firm as a company that allows you to swim with a dolphin: It isn’t enough that the customer/client be satisfied while the service is being provided, but most importantly, when they walk through your door for the last time.

So last week I took the family down to Cabo San Lucas at the tip of Baja for a vacation. And one of the things we did was, as you may have guessed, swim with dolphins and do exactly what this guy is doing here in the photo.

But that photo isn’t one of us, and comes from another place. The place we went was called Dolphin Discovery in nearby Los Cabos. And instead of leaving with a glow on our faces, we left a bit irritated.

And that is because so much of the event was devoted to smiling for their cameras — of course we weren’t allowed to use ours — and then trying to sell us the pictures for a whopping $180 afterwards.  This being the type of activity that lends itself to folks with some disposable income, some bought a picture or two (or perhaps all the shots).

Instead of this customer leaving delighted, I instead left annoyed. This is, of course, not the only business to focus on the immediate sale.

And what was the alternative path? Sell the pics at the cheapest possible price, so that everyone has them and everyone shares them on Facebook and with friends, and everyone, everyone, everyone knows. And in one of the lower corners, print the name of the company.

The result? Instead of paying big fat commissions to touts to get people in the door, more people would likely come in directly as a result of prior customers doing the marketing for them. This is called a win-win, unless you are the tout losing out on the commission.

Now turn us back to law as a business. Nobody can guarantee that a client will walk out happy at the end. But that is still the objective, because that is what service is all about.

There is no shortage of people that rely on marketing and referrals to bring clients to the door. And on the civil side, those referrals sometimes come at the price of a referral fee if the first lawyer has done some work on the matter.

The better course — the one we should all aspire to — is the matter coming in directly because a prior client was satisfied. And this also means that when the client leaves at the end, it should be on the best possible terms.

Some lawyers will argue to get back every nickel they laid out to advance a case — every xeroxed letter, phone call and subway fare. I suggest you don’t go there. Look at the big picture, recoup the major expenses, and make sure the client is satisfied.

Don’t be like that Mexican dolphin place, that had me walk out the door annoyed. The satisfied customer/client is your best asset.

Power to the People (A Declaration of Independence)

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John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizenry of the United States.

Today is July 2nd. On this date in 1776 the Continental Congress voted to declare its independence from Great Britain and a new nation was born. John Adams thought that the 2nd of July would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

The Declaration of Independence was formally adopted and signed two days later, and it is the 4th that we celebrate. (And it was on the 4th in 1826 that Adams and Thomas Jefferson both passed into the next world.)

But aside from re-publishing that extraordinary document originally crafted by Jefferson, as I do below and I do each year, I wanted to take a moment to discuss tort “reform.” Because it is very much connected to our independence.

The Declaration has, as its heart and sole, a discussion of how King George III seized too many powers. And the colonists believed — and were willing to risk their lives for the principles — that power should more justly reside with the people.

And so you will see, as but one example of “the long train of abuses and usurpations” charged against the British King that forms the Declaration’s bill of particulars, this:

For depriving us in many cases, of the benefit of Trial by Jury:

And in the subsequent Bill of Rights, there are three separate places where rights to a jury are established: In the Seventh Amendment (for civil trials), the Sixth Amendment (for criminal trials) and the Fifth Amendment (grand juries for capital or infamous crimes).

It is clear that the Founders wanted powers related to both civil and criminal fact-finding to reside with the people, and not with any head of state that may be subject to whim, politics or the pressures of the moment.

This tug-of-war over how much power should reside with government and how much with the people exists to this day. Speaking broadly, it is the conservatives who want to see a smaller, less powerful government and liberals a bigger and stronger one.

But oddly enough those principles seem to fall by the wayside in the discussion of tort “reform.” When it comes to that, some conservatives, for reasons that have never been explained to me, want to give various governmental protections and immunities to others so that wrongdoers can’t be effectively hauled before the court for accountability.

This abandonment of principle happens in the pursuit of …what?  I can’t even finish the sentence as I still can’t fathom it, despite having written now on the subject for so many years.

To those conservatives that read this blog, I urge you to re-read our Declaration (and Bill of Rights) and ask yourselves why it is that, for this issue, principles of smaller and less powerful government have fallen by the wayside in favor of granting governmental protections and immunities.

And now, without further ado, Mr. Jefferson and his fellow congressmen:
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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. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Soccer, Arguing and Lawyering

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Brandi Chastain after scoring the winning goal in 1999 Women’s World Cup.

As I follow the World Cup with one eye, I stumbled across a letter to the editor in the New York Times sports section, and it left me scratching my head. What the devil was the writer thinking when he sent this in, and why did the NYT bother to publish it?

Since the letter makes an argument, and this is what lawyers do, I wanted to add my two rupees on what not to do when lawyering.

We start on the futbol soccer pitch with the fact that extra time gets added to the standard 90 minutes to account for delays of the game, such as players taking a dive trying to get the ref to call a penalty. As Geoff Foster from the WSJ puts it:

All too often during matches, seemingly fit men fall to the ground in agony. They scream, wince, pound the grass with their fists and gesture to the sidelines for a stretcher. Some of them clutch a limb as if it was just freed from the jaws of a wood chipper.

But after a few moments, just as the priests arrive to administer last rites, they sit up on the gurney, shake it off, rise to their feet and run back on the field to play some more.

Foster does an analysis of the worst offenders of the flopping game, calling the extra minutes “writhing time.” Personally, I prefer “Flop Time.” Your mileage may vary.

And the issue devolves very quickly to this:  No one but a ref with a watch really knows exactly how much time is left on the clock. The New York Times wrote about this in: In Time Warp of Soccer, It Ain’t Over Till … Who Knows? Apparently, I wasn’t the only one wondering:

Imagine if an N.F.L. coach never knew when to call for the last-second pass, or an N.B.A. star had to guess when to throw up his desperation half-court shot.

Such situations would be unthinkable in other sports, but vagaries of time are the norm in soccer. Games do not end when a clock expires, but only when the referee decides they are over.

Soccer’s elastic definition of time means that no player on the field, no fan in the stands and no announcer on television has any earthly idea as to when the last kick of the ball will come.

(Don’t worry, we’ll get to the lawyering part in a moment. Stay with me here. This time I have a point to make.)

This article didn’t sit well with Thomas Jandl of Washington, who wrote in to the Times in a letter published in yesterday’s sports section. This was the guts of the short letter, with its logical inconsistency:

In baseball, football and even the more free-flowing basketball, coaches prepare and then call certain plays. In soccer, the flow of the game is unpredictable. Players make split-second decisions about their runs, passes, shots or tackles at virtually every moment. As a result, using a stopwatch to determine how much time was wasted or when exactly a game should end makes no sense.

The part about not using a stopwatch –in a game that has a clock — is a complete non-sequitor to comparisons of the game to other sports. It fails the rules of logic. As lawyers, we need logic.

The most common of logical arguments is probably the ancient syllogism. “If this is true, and that is true, then such and such must follow.”

Thus, in a brief, a lawyer might frame the issue with these major and minor premises to lead the court to the obvious answer:

Major premise: According to the statute, the defendant had x days to assert the affirmative defense.

Minor premise: The defendant failed to act within x  days on that affirmative defense.

Therefore the affirmative defense was waived.

But that is not what the writer to the NYT did, which is why it’s worth analyzing. He produced, and the NYT printed, the non-sequitor.

The letter instead, has these concepts:

Major premise: Soccer has a clock with 90 minutes plus extra time.

Minor premise: Soccer is wonderful because the flow of the game is unpredictable.

Therefore a stopwatch makes no sense.

If a judge saw this flow of logic from a lawyer, there is an excellent chance the lawyer would lose whatever argument s/he was trying to make. Now I might not be the world’s best writer, but I know enough to try to make logical arguments and avoid those that make me look silly.

The Times gets a gazillion or two letters each day. Why its editors chose something so logically empty is  beyond me.

File this under Legal Writing.

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