Status post travels with Lucy

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I’m too tired to be transferring pictures to Flickr right now, but we just got back from a whirlwind tour of north Jersey with Lucy, the slow footed, slow witted Basset Hound.  Now, as calm and easy going as the saintly Lucy may be, she does not travel well.  In fact, in the four years she has lived with us, she has nevr gone for a car ride and NOT thrown up.  But, this weekend, all of that changed.

We had the pleasure of visiting our new friends who live near Summit, NJ.  They are big time dog people and invited us to bring Lucy for an overnight.  It went great!  The dogs got along, Lucy didn’t puke, and Em and I had a huge time.  Katie and Kieth are about the nicest hosts you could have and it was really cool to see a part of my beloved NJ that I hadn’t explored before.  We all met in Ashland, MA at a couples cancer retreat in May, and it was great to reconnect.  We even got to make an impromptu visit to Citi Field, where the Phillies trounced the Mets – Sorry Kieth!

Now I am tired and full of homemade pierogies we got at the farmer’s market in Summit this morning.  We did get to hear Eric Bruntlett’s unassisted, game winning, bottom-of-the-ninth triple play on the radio as we drove home.  And even with all the yelling and screaming, Lucy still didn’t yack.  Good girl!

Sometimes you just gotta go and act like a lawyer

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That’s good news, because that’s what I do for a living.  The more I do this work and the younger everyone else is around me (I swear I was in Court today with an assistant District Attorney who was no more than fourteen), I realize that the advice of my current employer is exactly right – “sometimes you gotta just go into court and act like a lawyer.”

When that particular direction was given, maybe only a few years ago at most, I wasn’t sure what to make of it.  You need to know all the rules. You need to know everything about your case.  You need to know everything about your opponent’s case.  You need to know every piece of law, every reported case, every statute, and every rule of Court that is pertinent to every part of your case.  And if you don’t, well you can just forget it, curl up in a ball of anxiety and shake with fear until your appearance is over.  You are either prepared or your are not.

Friends, I have some news.  Life in a small firm is not like that.  If I had a team of lackeys working around the clock on all 100+ of my cases, I could maybe achieve something close to that level of preparation.  But in my world (where it’s mostly just me), it is simply not possible.  Now, if there is a big civil trial that’s worth a lot of money, then you definitely crank it up a notch or two.  But there are times – lots of times in my practice – where there is a Court appearance that may have a big impact on my client’s life and I don’t have the best part of it.  No amount of preparation is going to change that.  This is especially true in a civil case where the client has waited too long to get an attorney, perhaps hoping that a problem will simply go away.  And when it doesn’t, I get called in to mop up.  I got no problem taking out the trash and mopping up, but sometimes, there is only so much you can do, despite the fact that I’m being paid, perhaps thousands of dollars.

That’s when you gotta take your best argument in front of the Judge, and, with absolute certainty and airtight conviction, make your case.  You may not have the best of it; you may hardly have anything to hang your hat on, but that’s not really for you to decide.  Let the Court take care of that.  Just make the case professionally and with as much logic and support as possible.  Make appeals to common sense and general principles of fairness.  Don’t get cute and don’t crusade.  Just lay it out so clear that a child could understand, with respect and deference to your adversary and (for the love of God) to the Court.

I had an opportunity to run this play last week and it went OK, especially considering I didn’t have a leg to stand on.  I was in Federal Court, where everything seems so much more important and serious (even though it isn’t), and I had a great Judge and a very young adversary – sometimes getting old is a good thing!  As right as he was, he was still nervous about his big appearance in that big room, and that really helped me.

I was clear enough about why my client had done the stupid things he did in this business dispute that the Judge had to think twice before nailing shut the coffin.  I had just enough chutzpah to live another day.  I was politely admonished, but at least given a chance to force my guy to do the right thing without having a judgment hung around him or his company.  The next thing that would happen is that the Sheriff would come to start selling stuff and we don’t want that.  I exploited some obvious irregularities on the other side and wove that into my thin argument to give it a bit more life.  In business, it is mostly the case that there’s a bit of wrongdoing on both sides when it gets bad enough to go to Court.

So that’s what I have to do sometimes.  It’s great exercise.  I imagine it’s a bit like acting.  I felt great after.  I felt like I had given my client substantial value and so far, he seems pleased.  It wasn’t my most lucrative day in Court, but it helped me learn a little more, even at this advance age of 37, about what I do for a living.

F1 back in action this weekend

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Well, we thought we’d be seeing Michael Schumacher, but with his decision not to race, the temperature has lowered considerably on this, the first race back after Summer holiday.  It’ll be interesting to see who has benefitted from the long break.  McLaren showed some signs of life last month, even though the team is out of the running for this year’s championship.  I’m still liking the push from Red Bull and young Sebastian Vettel (pictured above).

The future of the sport continues to be a bit of a question mark.  What will the cars look like next year?  Will there be a uniform budget cap?  Also, we’re starting to wonder who will be racing where.  We known that Massa is out for this race, at least, but will he be back this season, or even next year?  BMW has left, but the Sauber team may yet be bailed out, and there’s already talk of Ferrari power.  Yet, it is doubtful that a proven Kubica, a proven race winner and up-and-coming young driver, will stay with the team.  Where will he be next year?  And is Kimi bound for rally racing, leaving F1 altogether?

So, with all these murmurs and rumblings quietly roiling in the background, i think it will be nice to have an actual race to distract us form the mysteries of the future.  by this time tomorrow, we’ll know who is on pole for the street course in Valencia.

Philadelphia – you won’t recognize us shortly

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Above is Rodin’s Gates of Hell, currently on display at the Rodin Museum here in Philadelphia.  Soon we’re going to find out what’s on the other side.  As a result of the Commonwealth of Pennsylvania’s failure to pass a state budget which would authorize the city to (1) raise sales tax and (2) restructure pension funds, city government is now being dismantled.

Here’s the mayor speaking at today’s press conference:

This is not a game.  This is not an exercise.  This is not about leverage, and no one is crying wolf, pointing fingers, or blaming anybody.  We have no money.

The cuts will eliminate the jobs of approximately 3000 city employees, but this may not be all bad.  there is so much fat that needs to be trimmed from the city’s bloated bureaucracy, that extreem measures will result in a leaner and more efficient government.  And while my heart goes out to those that will lose their jobs, that’s not the major problem with the so-called “Plan C” that is now going into effect.

Of greater concern is the brutal evisceration of city services.  There will be no more libraries.  there will be no more Recreation Department.  1000 police officers – gone.  Fairmount Park Commission – gone.  The Court system, the district attorney and the public defender – all partially shut down.  Office of Arts and Culture – gone.

If Harrisburg comes to our rescue in the next few days with approval for the sales tax increase and pension restructuring, this may not have to happen with such violence.  But, right now, the picture is extremely bleak.

Scalia’s dissent in the Troy Davis death row case

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Sometimes I think people say outrageous things just to get headlines and feed their egos.  Here’s the money quote:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

In re Troy Anthony Davis, 2009 U.S. LEXIS 5037, 7 (2009).

If you take that quote out of context, you might think that the esteemed Associate Justice is saying that it’s OK to execute innocent people.  I couldn’t believe that even this guy would say something so crazy.  I mean, the words are right there, but there must be something about the context of this statement that makes it make more sense.  So I went and read the short opinion, it’s only a couple pages long.  You know what?  he is saying that we can execute innocent people – as crazy as that sounds.

Now let’s take just a quick step back and understand what we’re talking about.  This is a murder conviction from almost twenty years ago.  As the execution date nears, condemned Troy Davis is seeing a lot of new evidence come to light, which not only establishes his innocence, but may also indicate who was the actual murderer.  Scalia’s point is: so what?  If people get screwed by the system, that’s too bad.  And if we execute an(other) innocent person, those are the breaks.  It’s not a perfect system, and the fact that we may have found enough irregularity in this case to establish ‘actual innocence’ doesn’t matter.  Everybody OK with that?

Paul Campos over at The Daily Beast offers additional illumination about why this is scary.  It’s not that Scalia delights in the execution of innocent people, although that possibility can not be ruled out.  It is the way he parades the law as an inflexible, quasi-mathematical standard from which we can never deviate that is so troublesome.  So, if we have a rule that, in a given case, we find out is wrong, it doesn’t matter because the rule is the rule.  People do not matter.  Reality does not matter.  Only the law and its brave defender, Associate Justice Antonin Scalia.

HEY! Don’t try to appeal a denial of Summary Judgment on the issue of qualified immunity before we get to trial – you’re not allowed!

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This issue has come up twice now, and state defendants just don’t get it.  Here’s the situation:  I represent plaintiffs making claims under Section 1983 of the Civil Rights Act.  Those claims often arise from police conduct that, at least from my point of view and that of my clients and their families, constitutes an excessive use of force, including deadly force.  But the law wants to give certain protections to the cops, and I think that’s fair.

One of these protections is called ‘qualified immunity’.  This means that the officer is not going to be liable for civil damages (payment of money) for shooting (and/or killing) someone if, at the time of the incident, the cop had a reasonable belief that he or someone else was in imminent peril of serious bodily injury or death.  The line that state attorneys love to use in closing argument – and they should because it’s REALLY effective – is that we can’t judge the officer’s behavior with the luxury of 20/20 hindsight.  We have to think about what the officer was thinking when the shit was going down.  Was that reasonable under those circumstance, without reference to outcome, like an innocent person being shot to death?

Normally qualified immunity is a question for the jury in these cases, but, invariably, the attorneys representing the police file what’s called a Motion for Summary Judgment on this issue.  Summary Judgment can only be granted if you take as true all the allegations of the party claiming a civil rights violation, and the cops would still win.  That means they get judgment on this issue in their favor, as a matter of law.

Now, why would I take a case against the cops if I didn’t have any evidence that they did something wrong?  There’s going to be at least one witness to tell the story my way, and if you assume that witness is telling the truth, as the Judge must in deciding the Motion for Summary Judgment, then I’m going to win the Motion.  It’s pretty much that simple.  It’s very hard for the cops to get these motions granted.  Of course, it’s very hard for me to beat the ‘Monday-morning-quarterback’ argument at trial.

So the Motion is denied, I win, and then we can take the case to trial and see what the jury thinks, right?  Well, you would think, except that the attorneys on the other side have started to get cute.  The name of the game in defending these cases is delay, delay, delay.  So rather than let the case go forward to conclusion, they try to go over the Judge’s head and get an appeal going even before we get started with trial.  Normally, that’s a no-no.  There are some instances where an early appeal like that can go forward, but that requires that you ask permission.  But no, these attorneys don’t ask permission.  They just think they’re entitled to this appeal and interminable delay as a matter of right.  They’re not.  And for those interested in proof that I actually work for a living – here’s my submission to the Court about why they’re not entitled to that automatic appeal.

Moldover – great crazy music, innovative packaging

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When my friend Dave and I were younger, after he played a pivotal role in getting me to listen to Gabriel-era Genesis, we would sometimes buy music based solely on production.  you might not know about the band, but if you knew the producer, then you knew that you would hear something compelling.  Brian Eno, Daniel Lanois, Tchad Blake and Mitchell Froom were just a few of the high-level pros from our time – so long ago.  We were arguably elevating form over substance – purchasing a product simply because of its packaging.

Well, Moldover seems to have taken that to the next level.  the technology that was used to make his record is actually embedded in the CD case and he plays it on the train and at shows.

That’s what I call bringing your product to the people.  Talk about interactive.  Play along while you listen!

(h/t tweet from Dream Theater’s Jordan Rudess)

Back to the whole DJ thing – will I ever learn?

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Ah the mix-tape.  Am I still in high school?  College?  Trying desperately to get the attention of a lovely young lady who barely knows I exist?  I know!  A mixtape!  My unaprralleled knowledge of music will instantly win her over and we’ll live happily ever after.  All my fears of rejection will be extinguished even before the auto-reverse mechanism clicks over to the second 45 minutes of aural bliss.

Actually, my ‘mixtape’ fantasy worked once.  A tape I made caused two people to fall madly in love and get married.  The only problem was that I was not one of them.  That’s a story for another time.  But a recent release of crazy cool Brazilian music made me rethink the whole DJ thing, but this time in a slightly different light.  The record is Gilles Peterson – Brazilika, and I guess if I had grown up in the UK, I might have a better of who Gilles Peterson is and why i should care about his music.  It’s amazing to me that there’s a DJ in the UK, over 40 years old, who can release a relevant compilation of music.  Would that happen in this country?  Anyway, the record is great, introduced me to Azymuth, whose early stuff seems vey much ‘up my alley’, and is a nice listen straight through.

But, of course, I got to thinking – ‘I could do that.  Better.’  Of course.  So, the thinkg before was starting with an abstract idea of making everything happen all at once – past-present-future all mixed on to one glorious track.  Looking back on that post from the past, it’s little wonder I didn’t follow-through on the project.  So now, after delighting to the treasures in Mr. Peterson’s vault, I’m thinking of going back to my virtual decks, looking into some of the more obscure corners of my record collection and – mixtape.  Something of a glossy sampler to be released through Blogerantz.  Maybe some post-production and a fancy bit of art, but still really just a mixtape.

Felicia Day – probably a good person for me to keep up with, especially if it were still 2005

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Just got finished reading Dorothy’s article about Felicia Day.  Rather than repeat all ther pertinent details to those who are as clueless as I, I’ll just let Dorothy do the talking.  Suffice to say, the girl’s got a web series over which she appears to retain total control.  She has made herself into an internet star.  Is this the model for the new media?  She also blogs and tweets regularly.  So, why not add all of that to my (already extensive) reading list?  It makes sense, because she’s been right about so much in her approach to marketing and entertainment.

If the hope is to see where we are going, other will undoubtedly look to her for a clue.  Shouldn’t I be one of those people?  I don’t know.  I think I’ll just keep lumbering along like a woolly mammoth for a little while.  It may just be that snarky interweb TV episodes aren’t my thing.

As i look to the future, I’m much more interested in these guys and what they do.