Legal Warfare

I am engaged in the title’s activity.  We’ll see how this post goes as I can’t really tell you anything about the case.

Let’s say the other side is caught cold doing wrong and judicially admits it in the Answer to the Complaint (I have the distinct feeling I’m writing this for an audience of one, Curmudgeon).  For the other three or four of you, if you say something in something you file with the court, you are stuck with it – true or not – it is true.

Ah, but you get a Counterclaim filed against your client that is, charitably put, not quite based on facts or reality.  To add to the insult, the damages claimed would fund the deficit of some of our smaller distressed cities.

You figure out early on that the lawyer on the other side pretty much doesn’t have a case and wants to scare you so you will convince your client to do a walk away – each side dismisses and calls it even.  And while the lawyer is at it, said lawyer is milking his client for fees.  I really would pay for the pleasure of being in the room when the first bill is opened.

Your client understands all this and instructs you to soldier on, the right thing to do for legal and business reasons.

And I am; but, it is really depressing when I step back from it a bit.  I’m going to make a relatively nice amount of money.  My client may even come out ahead if the other side has some money to grab after a probable judgment.

And the lawyer on the other side is creative, if not quite what I consider professional, requiring me to think, something I don’t have to do very often at this stage in my career – I’m told it will stave off senility in the coming years.

But, it is all kind of distasteful.  The other lawyer is condescending and smarmy which makes me want to engage in some equally unpleasant behavior, which I’m so far resisting. 

I don’t like any of it.

Oh My! I'm on the side of the Republicans!

The title was just for shock value.  I’m actually on the side of lawyers acting like lawyers.  Stop laughing.

An Atlanta “silk stocking” law firm, King & Spalding has been under fire for a week or so as one of its partners (at the rate of $520 an hour) took on the defense of the Defense of Marriage Act (DOMA) for Republican House leaders when the Justice Department announced that it would not defend the law in lawsuits asserting that the law is unconstitutional.

The firm’s chairman, announcing the firm would withdraw, said “[i]n reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate.”  AJC.com.  He didn’t mention that the firm was under fire from gay groups and liberal quarters, with protests planned against it later in the week.

The partner who is handling the case, Paul D. Clement, a former Solicitor General, resigned saying “’I take this step not because of strongly held views about the statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.

‘‘Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.’

“Clement closed his letter by quoting from a … former King & Spalding partner (and former Attorney General and former federal appellate judge) Griffin Bell: ‘You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation.’”  NationalReview.com.  (Emphasis added.)

Laugh if you will, lawyers have certain ethical obligations that result from the grant of the privilege to practice law. King & Spalding got lawyering exactly wrong and Mr. Clement got it exactly right.

I hope Mr. Clement with his new firm loses big time in his defense of DOMA but he should be applauded for his representation.  His old firm needs to take a remedial professionalism course.  Perhaps Mr. Clement will volunteer his services to teach it.

It's 8:20 p.m. and everything in Atlanta is quite nice

I just looked out the window and saw a guy and I assume his maybe 3 year old daughter. She had her dad's Braves cap on, which kept falling off her head and an orange plastic bat. He tossed her the plastic ball which she let land next to her (she's a lefty) and then took a great golf swing, popping it ten or so feet each time. They were always hooks or slices because she came off of the bat with her left hand. She has promise though, nice fluid swing.

Just about the end of twilight and to my mind Spring in Atlanta is quite nice.

Facebook pushes the envelope yet again

Just after lunch I went to the Huffington Post while surfing and was greeted by a popover that informed me that a Facebook friend (one of the owners of a yellow dog which pines over the other owner’s tennis shoe when he is gone) had linked her facebook account to HuffPo and invited me to do the same.

I thought I had blocked all access to my Facebook page other than to friends.  Not so grasshopper.  If your friends like a page or a website or an app, they get access to you now.

If you click through to “Account Settings” and then click this line:

“Info accessible through your friends

Control what information is available to apps and websites when your friends use them”

you will get this below.  When I did, all of the items were checked:

Use the settings below to control which of your information is available to applications, games and websites when your friends use them. The more info you share, the more social the experience.

Bio	My videos
Birthday	My links
Family and relationships	My notes
Interested in	Photos and videos I'm  tagged in
Religious and political views	Hometown
My website	Current city
If I'm online	Education and work
My status updates	Activities, interests, things I like
My photos	Places I check in to

Your name, profile picture, gender, networks and user ID (along with any other information you've set to everyone) is available to friends' applications unless you turn off platform applications and websites.

I don’t remember seeing that screen before; and, even if I had, I damn well know I didn’t check the boxes.  The only thing I can think of that I’ve done is give Photoshop permission to upload pictures recently.  Maybe that reset everything.  Sorry Photoshop and HuffPo, you are now on the shit list.  And Facebook, it may be true that “[t]he more info you share, the more social the experience:” but, I like designing my own social circumstances and I’m getting real tired of you forcing me to catch you each time you decide to change the rules.

Pick a side: my friend says I'm wrong

Regular readers will know that one of my friends is a cop.  We often agree on stuff you might think would separate us.  That didn’t happen today.

I told him about sitting on an entrance ramp to the Connector (I-75 and I-85 are the same expressway through downtown Atlanta for a couple of miles, a design failure) on Saturday, on my way to play golf near the airport.  I just missed getting ahead of what I thought was a police funeral procession, being the tenth or so car not permitted to enter the expressway by the police car that blocked it.  (I had about 15 minutes while sitting to count.)

I watched police cars from a bunch of Georgia cities and counties, maybe a couple of hundred, pass me and then about a thousand, private, motorcycles, then a dozen or so more police cars, all with lights and sirens operating, before I was allowed to move.

Here’s the thing.  All the cars and bikes were in the HOV lane to the far left of the southbound, seven or eight lane expressway.  All of the remaining lanes were empty.

I was finally allowed to move and caught up to the procession in maybe a minute, just past the next entrance – no blocking, cars now were allowed to occupy the lanes next to the procession.

As it turns out, my friend the cop says it wasn’t a funeral (I wasn’t happy but I could have “lived” with fifteen minutes out of my life for a show of respect for a fallen cop).  Nope, I was stopped for no good reason (at least that I can think of or that my friend offered) for the entire connector being blocked for the annual Georgia police something or other ride for the families of slain officers.

Don’t get me wrong, I want police to be paid well.  I want them to be taken care of if they’re hurt.  I want their families taken care of if they are killed.  But I don’t think it’s a matter of respect for a few thousand people to be stopped in their tracks through downtown Atlanta while a thousand or so cops ride south in one lane with the rest empty.  Though I didn’t mention it to my friend, it seems to me to a bit arrogant on the part of the cops.

My friend the cop and I have agreed to disagree on this one.

All spending is discretionary (or, I think we are screwed)

Don’t hammer me on the absolute accuracy of the dollars in this article, though they do seem to be borne out by spending info I found at Wikipedia.

That said, we paid more than $100 billion and $50 billion for our adventures in Afghanistan and Iraq, respectively, in 2010.  Those numbers don’t count money spent from the $513 billion Defense Department budget.  Even if no other money had been spent (and I’m sure that isn’t true) those two wars represent about 25% of “defense” spending and just under 5% of all spending.

According to Wikipedia, the Federal government took in $2.16 trillion in taxes in Fiscal Year 2010 and spent about $3.45 trillion.  Here’s a breakdown of Federal spending for the same year:

Mandatory spending: $2.009 trillion (-20.1%)

$695 billion (+4.9%) – Social Security

$571 billion (−15.2%) – Other mandatory programs

$453 billion (+6.6%) – Medicare

$290 billion (+12.0%) – Medicaid

$164 billion (+18.0%) – Interest on National Debt

$11 billion (+275%) – Potential disaster costs

$0 billion (−100%) – Troubled Asset Relief Program (TARP)

$0 billion (−100%) – Financial stabilization efforts

Discretionary spending: $1.368 trillion (+13.1%)

$663.7 billion (+12.7%) – Department of Defense (including Overseas Contingency Operations)

$78.7 billion (−1.7%) – Department of Health and Human Services

$72.5 billion (+2.8%) – Department of Transportation

$52.5 billion (+10.3%) – Department of Veterans Affairs

$51.7 billion (+40.9%) – Department of State and Other International Programs

$47.5 billion (+18.5%) – Department of Housing and Urban Development

$46.7 billion (+12.8%) – Department of Education

$42.7 billion (+1.2%) – Department of Homeland Security

$26.3 billion (−0.4%) – Department of Energy

$26.0 billion (+8.8%) – Department of Agriculture

$23.9 billion (−6.3%) – Department of Justice

$18.7 billion (+5.1%) – National Aeronautics and Space Administration

$13.8 billion (+48.4%) – Department of Commerce

$13.3 billion (+4.7%) – Department of Labor

$13.3 billion (+4.7%) – Department of the Treasury

$12.0 billion (+6.2%) – Department of the Interior

$10.5 billion (+34.6%) – Environmental Protection Agency

$9.7 billion (+10.2%) – Social Security Administration

$7.0 billion (+1.4%) – National Science Foundation

$5.1 billion (−3.8%) – Corps of Engineers

$5.0 billion (+100%) – National Infrastructure Bank

$1.1 billion (+22.2%) – Corporation for National and Community Service

$0.7 billion (0.0%) – Small Business Administration

$0.6 billion (−14.3%) – General Services Administration

$19.8 billion (+3.7%) – Other Agencies

$105 billion – Other

Some numbers that jump out at you:

"Mandatory" spending was down 20.1% and discretionary spending was up 13.1% over 2009. 

Social Security, Medicare and Medicaid spending totaled $1.438 trillion, about 40% of all spending.

The Departments of Defense, Veterans Affairs, State and Homeland Security account for $810.6 billion or about 23% of all spending.

About 39 cents of every dollar spent was borrowed.

End spending in the seven categories just mentioned and the government is in the black.  Can’t do that?

End all the wars, all the economic aid to other countries, shut down all foreign military operations, cut off all economic aid for seniors, students, children and others who have assets or private income that they could survive on, end the Bush tax cuts, end government subsidies to businesses and you might get close to the same point. 

And you’d get a Tea Party membership card in the mail.  And a few wars that threaten our economic interests.  And some more dead or sick little kids.  An even less educated, less able next generation.  A few more seniors dead before their time.

Damned if you do, damned if you don’t.

Don't talk to the PO-lice

The title uses the Southern pronunciation.  For purposes of this post, the police are anyone in authority investigating a crime.

The grand jury exchange which the Barry Bonds jury found to be an “obstruction of Justice:

"Q: Did Greg ever give you anything that required a syringe to inject yourself with?

Bonds: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't — we don't sit around and talk baseball, because he knows I don't want — don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends, you come around talking about baseball, you go on. I don't talk about his business. You know what I mean? ...

Q: Right.

A: That's what keeps our friendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see ..."

Jurors were only supposed to make their decision based on the second answer, the one beginning "That's what keeps ..." However, it seemed after the verdict on Wednesday that they looked at the whole exchange. The foreman of the jury, who said his first name was Fred, repeatedly used an expletive to describe Bonds' answer to the question from the prosecutors.

"When you're in front of a grand jury you have to answer, and he gave a b------- answer. It was a b------- answer," Fred said. "He gave a story rather than a yes or no answer."

CBSNews.com.

In January 2000, Ray Lewis, an NFL player, was in Atlanta for the Super Bowl.  He almost certainly saw, and may have participated in a murder.  There wasn’t much of a case against him.  He pled to misdemeanor obstruction for making a “misleading” statement to the police the morning after the murder.

In October 2005, Scooter Libby, an aide to Vice President Dick Cheney, talked to federal investigators about their inquiry into leaks about Valarie Plame’s connections to the CIA and was later convicted on four of the five counts in an indictment (one count of obstruction of justice, two counts of perjury, and one of the counts of making false statements) and acquitted on the second count of making false statements and was sentenced to 30 months in federal prison, a fine of $250,000, and two years of supervised release, including 400 hours of community service.

Wikipedia.com

None of the three is in anyway an attractive example; but, they are the examples that I’ve got.  None of them would have had any problem had they just kept their mouth shut when the police knocked at their door.

I don’t and would never do criminal defense work.  A couple of decades ago I’d have done anything I could to help a criminal investigation.  I’d have to think long and hard about having any conversation with the police these days.

Political Ethics

Stop laughing.  The phrase in many peoples’ mind is almost as ludicrous as legal ethics.

You hear phrases like “I can’t be bought for a cup of coffee” on a regular basis.  And that is almost certainly true.  But the price of cups of coffee and sandwiches and rounds of golf and a nice bottle of ’97 Beringer Reserve cab to go with some juicy prime steaks at dinner adds up.

Some years back I represented a state agency defending a lawsuit.  I had to spend a lot of time with two fairly low-level agency employees reviewing and organizing hundreds of boxes of documents.  They took very seriously the agency’s “no gratuities” rule.  Instead of me buying them lunch or dinner at a nice restaurant which my firm did for all clients (yes the client is paying for it at the end of the day in the form of rates that are marginally higher than if the firm did no entertaining) we ate lunch at McDonalds and dinner at Western Sizzler so they could stay within their per diem.

Things have apparently changed since then.  Georgia’s legislators trot out the word “transparency” whenever anyone talks about ethics.  They loudly proclaim they aren’t influenced by free suite tickets at Braves and Falcons games.  The Speaker of the House was unashamed when it was reported last fall that he, aides and his family went on a $17,000 jaunt to Europe paid for by lobbyists.

Then, last week it came out that lobbyists had spent over $200,000 over the last couple of months wining and dining Georgia Representatives’ and Senators’ staffs and that the state’s Ethics Commission had ruled that this spending didn’t have to be disclosed under the current ethics law.  So much for the ameliorative powers of transparency, though they may find time before this year’s session ends to amend the law.

If largesse by lobbyists doesn’t buy influence and votes, just why do you think that companies spend the money?  Just as with the river of campaign contributions, corporations spend millions of dollars a year on politicians with the full expectation that it will get them what they want out of the political process.  Remember, corporations have their stockholders’ interests at heart, not yours and mine. 

Calvin Coolidge said that what’s good for General Motors is good for America.  An honest man old Silent Cal.  He admitted what he thought where the current bunch won’t.  We are becoming at most an afterthought in the minds of our well-fed and well-funded leaders.  Rather than getting what we pay for we are getting what corporations pay for.  And suckers that we are, we keep on inviting them back to feed at the public political trough.

Consequences

The longer I think about what needs to be done politically - locally, nationally and internationally, I am more and more bewildered and depressed.

We are a people of… well maybe I need to put that a bit differently.  We aren’t “a people” anymore, if we ever were.

For millennia now, we have fought each other because of ethnic, cultural, religious and economic differences.  I’ve had the advantage of being a white male of a non-descript ethnic, cultural and economic strata growing up in a place and time that made it seem that all would be good and over time, better.

I dearly wish I were rich and could wall myself off from the, I fear, coming storm of fear and hate.  But I’m not and will deal with the consequences of our moral, cultural and economic profilgacy for the rest of my life.

We are not a country or a world of “exceptionalism” other than in a material sense for some people in some places.  Traditional politics will not solve the problems facing us, be the politics those of Democrats, Republicans, Libertarians, Tea Party folks or any international flavor you would like to name.

Some medicine for whichever flavor you favor:

You are a flaming economic liberal and want to spend and spend and spend to make all well for all people in every way.  Noticed how well decades of deficit spending have worked?  Social liberal?  Noticed how your mannered approach to the differences among us doesn't lead to, in the immortal words of Rodney King, us all being able to “get along?”  And maybe more importantly for me, a flaming social liberal, have you noticed that for the most part, most people don’t give a damn about civil liberties, because, pick your reason – they are starving, they are oppressed, they are cussed.  Think that’s going to change anytime soon?

You are a right wing conservative of either a fiscal or social or both, persuasion:  Let’s assume you are right in all your beliefs.  Okay, what are you going to do with “the other,” those you fear and hate?  Those that insist on living their lives immorally to your mind, those that don’t have the physical, mental or plain moral ability to make it on their own in the world.  There are a lot of them, quite possibly more of them than there are of you.  Plan to man the ramparts when they are starving and fed up with your moralizing?

Libertarian are you?  Burn your Ayn Rand books and smell, the more and more putrid, odor of our coming catastrophe.  John Galt didn’t and doesn’t exist.  And if I’m wrong, he’s retreated to the secret valley in the mountains.

Tea Party your bent?  You are deluding yourself – the GOP and its main supporters have no intention of fulfilling any of the unworkable mandates you insist on promoting.  Noticed that the entire U.S. government is at a virtual standstill debating about whether to cut, what, a percent or so of the budget that won’t make a damn bit of difference socially or economically the minute it happens?  When is it that you think that defense and social entitlements are going to be meaningfully cut?  Not anytime soon.

I’m not going to harass my few readers around the world – I don’t know your situation well enough to tell you you’re screwed, though I think you are if you think there’s a good outcome around the corner.

We “the people” really need to get slapped in our individual and collective faces and face the consequences of our long avoidance of reality.  I suggest we all read some history books about what happened to fat and happy cultures.  Or take a look at the Middle East and Africa today for a more current lesson.

We really don’t need to blame our “leaders” as we have encouraged their errors, indeed demanded them to earn our votes.  Bread and circuses are what you get when you think constantly only about your small place in society.  Economic chaos is what you get when you are out to get only what you think benefits you.  Ethnic, cultural and religious hate?  I don’t have a clue what drives you.

Solutions, I have none.  Maybe we will get the next miracle leader to actually fix everything.  I very much doubt it and think we all should start thinking about to do in the absence of a savior.

Perpetuity?

I mentioned here recently that I don’t know anything about antitrust law.  I also know little about patent, copyright and trademark law.

Saturday I went to the Atlanta Botanical Garden.  Lots and lots of tulips, roses aren’t quite here yet.

I’d thrown my ticket on the passenger seat and was about to throw it in the trash this morning; but, for some reason I looked at the back.  In addition to an add for a department store, I read this:  “NO REFUNDS – NO EXCHANGES – NO RAINCHECKS  Visitor agrees not to use commercially any photography taken at the Atlanta Botanical Garden.  Visitor grants permission to the Atlanta Botanical Garden to utilize the visitor’s image, likeness, and/or sound recordings for the purpose whatsoever in perpetuity.”

Beyond a couple of grammatical problems, are they talking about their recordings of me or my recordings of their flowers?  Both?  Whichever, they get them in perpetuity?

I think even I could beat this back of the ticket “contract.”