November 21st, 2018

Count Your Blessings

This is a repost — the message hasn’t changed, but I continue to run turkey trots in the costume. The cigar, however, has been updated.
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People in mixed families — some of whom voted for/against Trump — may be dreading Thanksgiving and seeing certain relatives.

But it isn’t up to me to tell you how to grow up and handle awkward and painful situations or deal with the Crazy Uncle (apparently it’s never a crazy aunt).  If you haven’t figured it out yet, you are unlikely to learn how to do so here.

This doesn’t mean you can’t be thankful. As you likely should be, if you are reading this post.

The first time I did a Thanksgiving Day message, it was in the form of a Blawg Review, recounting the time Arlo Guthrie came to dinner at my house for a dinner that couldn’t be beat. That was 2009.

In 2011 I wished one and all a Happy Thanksgiving as I celebrated my fifth year blogging. I decorated my blog that year with the photo you see here: me dressed up in a turkey suit for a local race. That message is below.

In 2013 I came back with this message to put away those little pocket computers, unless you wanted to use the phone function that some of them have to talk with those dear to you, but perhaps not so near.

I am now a blogger for 11 years. And this past Sunday I put on that turkey suit that decorates this post for a local 5K, and I’ll put it on again for another on Thanksgiving morning.  Because I can.

The costume does not come with a trigger warning. So if I scare the bejesus out of someone — and oddly enough it does frighten some small children — they will just have to deal with it.

Running around in a turkey suit sure beats one of the alternative lives I could be having: Living in the anarchy and horror of Syria. Or suffering with the  terrorism in France. Or Lebanon. Or Israel. Or Nigeria/Cameroon. Or Yemen. Mali. Iraq. Libya. Egypt. Afghanistan. And I’m only scratching the surface here.

There are many different ways to count your blessings. This is the way I want to do it. My original posting from 2011 is below.

–Eric “Turkeywitz”

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there-will-come-a-dayNow you can see that I have a couple pictures here of me in a turkey suit, shot Sunday at a local Turkey Trot. And you might be wondering what the heck that has to do with blogging, or lawyering, or five-year anniveraries. And, you also might wonder if I’m nuts to put them up here, out of concern that it diminishes the seriousness of what I do for clients in the courtroom. Or that it might be seen by a potential client who will quickly hightail it elsewhere.

Glad you asked.

I see my fair share of human misery come through the doors with busted up bodies that shouldn’t be busted up. Anyone that deals with the consumer end of law will see variations on this theme, from divorce, criminal charges, bankruptcy, etc. And seeing those things gives me (and should give everyone) a greater appreciation for what we have. I know, from seeing it happen to others, that a car could blast through an intersection and instantaneously change my life and those of my family forever. Don’t say it couldn’t happen to you, because it sure happens to some people, who’s only fault might have been sitting patiently at a light. And it only takes a momentary lapse of attention on the part of a driver.

There is no limit to the number of ways that life could be quickly altered for the worse, and I’m not sitting in the middle of a war zone.

So I am thankful for each day that I get. And if I get the chance to dress up silly and run a 1-mile Gobbler race with a few hundred local kids, giving out gift certificates to a local cupcake shop for those that finish near my feathers, then yeah, I’m going to do it. And if I can have a few hundred adults in the 5K race chase the turkey, with a chance to win free entry into a little half marathon trail race I put together, well that is fun too. Community events are often like that. Fun. And it’s nice not just to participate, but to help create them.

In deciding to dress like a turkey for this event for the third year in a row — and with my name I’m the natural choice for this gig —  I’m also mindful of Benjamin Franklin’s view of this particular fowl, as he advocated for it to be our national bird instead of the bald eagle:

For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America . . . He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on.

I decline the opportunity to put on the “serious lawyer face” 24/7. You might see the suit and tie shot on my website, but you won’t see it on my blog. Here I get to let my feathers down.

I write this blog the same way I go through life. I try to enjoy it, while at the same time taking what I do for a living very seriously. I think that’s reflected in the 1,000+ posts that I’ve done. And yes, this is the same reason that I have for running  the occasional April Fool’s gag.

This week is Thanksgiving. Look around you. Be thankful for what you have. And live each day to the fullest.

I hate to use Latin phrases in law, as it invariably sounds pretentious, but I’ll make an exception today. Carpe diem.

Now if someone could please cue up a copy of Alice’s Restaurant, I’d be most grateful. I hear Arlo may be coming to dinner….

 

November 16th, 2018

So That’s What Law Firm Marketing Looks Like!

Noble McIntyre, unloading turkeys in 2017.

Over the years, I’ve had my fair share of fun skewering attorney marketing.

There was, for example, the law firm that advertised over a urinal.

Lawyers that used Google ads or YouTube to chase plane crashes and train accidents.

And there were companies that wanted me to advertise on funeral websites or in an unethical manner.

But when a law firm does it right — no matter how rare it may appear — we should sit up and take notice, yes?

Enter, stage right, the McIntyre Law Firm in Oklahoma City.

What did they do right to earn a little free press from me?

On Thanksgiving Day they will distribute 2,500 free turkeys to the people in their area. And, I’m guessing, they will feel pretty good about doing it.

It’s the 9th year in a row for the firm that, it just so happens, finds it convenient to distribute them from the parking lot of the law firm building.

And this is part of a larger effort by the firm and other local personal injury firms:

“Our goal every year is the same – to serve as many Oklahoma families as possible,” said attorney Noble McIntyre, a co-founder of Lawyers Fighting Hunger and a former President of the Oklahoma Association for Justice. “The combined financial efforts of so many Oklahoma plaintiff trial lawyers donating to Lawyers Fighting Hunger, combined with the physical resources of the Local 157 Oklahoma City fire fighters and the Oklahoma City Police officers allows us the opportunity to be of greater service to the Oklahomans most in need of a helping hand. With the help of plaintiff trial lawyers across Oklahoma we are able to not only provide thousands of free drinks and hamburgers at each location on the day of each event but also free turkeys for thousands to take home to their families.”

Nobody out there has to yell and scream “hire me!” The turkey recipients aren’t injured.

The lawyers just do good deeds in the community.  And when needs arrive for family or friends that may call out for legal assistance there’s a pretty good chance someone will remember who the good guys are.

Community relations. It may be an effort, but it’s not a complicated concept.

You can read more about the firm’s efforts in leading over 100 other Oklahoma firms around the state to feed the needy at holiday time at this link.

 

October 16th, 2018

Does Judicial Temperament Matter? (A Tale of Two Judges)

Supreme Court Justice Brett Kavanaugh during his confirmation hearing.

It was the worst of temperaments, and it was the worser of temperaments.

OK, not exactly the gold of Charles Dickens’ A Tale of Two Cities opener, but I needed something to compare the recent fiasco of Justice Brett Kanvanaugh‘s confirmation hearing with the removal of Queens Civil Court Judge Terrence O’Connor today.

Your familiarity with Kavanaugh’s angry, snarling, yelling screed will be assumed when members of Congress were calling for an investigation of potential sexual abuse.

Judge Terrence O’Connor, via NY Post

O’Connor was removed byNew York’s Court of Appeals today for his belligerence from the bench. You can read a summary of the details at this New York Law Journal article.

A sample of his conduct is this, from the opinion:

“Here, the record is replete with evidence supporting the Commission’s determination that, on numerous occasions, petitioner acted impatiently, raised his voice, and made demeaning and insulting remarks, often in open court. In so doing, he violated his obligation to treat those appearing before him with dignity and respect”

But the part that struck me most was this piece about the judiciary in general, about the need and duty to investigate potential misconduct, and why judicial temperament matters:

“Judges are also charged with promoting public confidence in the integrity of the judiciary through their own respect for the law. Public confidence in the integrity of the judiciary has long been recognized as essential to its vitality as well as our overall system of government. If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct.”

And that is the ultimate question for the public when it looks to the robe on the bench. Can we assume confidence and integrity with the rulings that come down?

 

September 28th, 2018

Saving the Supreme Court – 3 suggestions

Christine Blasey Ford, by Manuel Santelices. Used with permission.

Much will be written about the horror show yesterday before the Senate Judiciary Committee regarding the emotional testimony of Dr. Christine Blasey Ford and Judge Brett Kavanaugh. While there will be a million hot takes on its immediate significance, I’d prefer to look long term at the damage to the Court as an institution, and how to fix it.

Already suffering from deep politicization –made worse by the failure to the GOP to even give Judge Merrick Garland a hearing — it seems that the Court is doomed to have whatever shred of its integrity and dignity destroyed unless the Nation acts.

Over at Reason, however, Nick Gillespie sees no hope, and calls it “impossible.” In an article he wrote before the hearing, 3 Questions To Ask Yourself While Watching the Kavanaugh/Ford Hearings Today, he writes:

Is there any way to depoliticize the selection of Supreme Court justices? Almost certainly not, and it probably would be inadvisable in any case. The Supreme Court is part of the government after all, and the justices read the opinion polls and headlines too. They are selected by one politician (the president) and vetted by others (senators). Getting politics out of the process is impossible and ultimately, elections do indirectly change the makeup of the bench.

I disagree and offer my three ways to restore the integrity of the institution.

But before doing so, it’s important to note that when the Constitution was written, the average life expectancy was 36.  When you factor out all those that died in infancy and childhood, you obviously got a higher age, but it still would not have compared to today’s average age of 78.  Serving on the High Court was the culmination of a career.

Now, however, it is seen as a way to put someone on the Court for 30-40 years, thereby making each seat that much more potent. When you combine that with Congress’s continuing refusal to make tough decisions and instead pass its power to various agencies that make decisions without voter approval, you get a Court made even more powerful by virtue of the breadth of issues it must decide.

So how to deal with this? My three suggestions:

Term Limits. This is not a new idea and has been kicking around for awhile. If each jurist gets an 18 year term, with a new one picked every two years, you have regular turnover that reduces the impact of any one justice. After leaving the Court the judges can sit by designation in any District Court of Court of Appeals of their choosing, as retiring SCOTUS justices do now, and do so for life.

Pinch Hitters. As we saw with the Garland nomination, Senators have a motive to leave seats empty until a President comes along from their own party. This is, obviously, an insult to the Constitution. If the Democrats get a chance to get revenge and hold a seat open until the next election, they surely will do so. Additionally, there is sometimes an empty seat when judges must recuse themselves due to conflicts of interest, which was the subject of a satiric April Fool’s gag I wrote 10 years ago that had various justices recusing (or not) based on their participation in a fantasy baseball league. The gist of it was the recusal rules aren’t really all that clear and justices decide for themselves.

The solution? If there is a vacancy due to death, retirement or recusal, the Court pulls a name at random of a sitting Court of Appeals judge with 10+ years on the bench to sit by designation. This decreases the chance of Senators playing politics with the Court.

Advice and Consent. The Constitution says the President appoints the judges with the “advice and consent” of the Senate. But all too often, it seems, there is a request for consent without asking for that advice. The Judiciary Committee can agree, and make part of its rules, that it will provide to the President a list of 10 (or 20, or whatever) judges and that a hearing will be given for any one culled from that list. This, of course, requires actual cooperation among the Senators, who would choose the list members by a supermajority, thereby taking another step toward removing politics and eliminating extremist choices from either side. It would only be effective, obviously,  after the next election.

But you know what? This all presumes that the Senate actually wants the Court to be immune from politics. The more cynical view, and perhaps the more accurate one, is that Court nominations and fights are just another means of generating anger, which is then used for fundraising purposes.

So there are means out there to depoliticize the court. It can be done. The question is whether there is the will to do so.

 

September 25th, 2018

Judge Kavanaugh and the Art of Jury Selection

Judge Brett Kavanaugh, via Rolling Stone and Alex Brandon/AP/REX Shutterstock

As the Brett Kavanaugh confirmation spins wildly out of control with accusations of sexual assault, I’ve sat back and watched knowing that I’ve seen versions of this play before.

Those similar plays are not in politics, but in the course of jury selection.

This won’t take long.

Underlying virtually everything about the accusations is the concept of confirmation bias. Those who are hoping for a result, be it confirmation or rejection, will see the facts as they emerge with the spin that is most favorable to the conclusion that they want, in their hearts, to be reached.

It really isn’t that tough to see that, for varying reasons, a great many folks made up their minds before hearing all the evidence. And you know this because the witnesses haven’t even testified yet before the Senate Judiciary Committee.

The first example of this is Senate Majority Leader Mitch McConnell:

‘In the very near future, Judge Kavanaugh will be on the U.S. Supreme Court. We’re going to plow right through it and do our job.’

And the second is Senator Lindsey Graham, on the Judiciary Committee, demanding a vote ASAP:

 

These types of comments always accompany a ‘Don’t worry, we’ll be fair at the hearing’ attitude.

And this sounds like a version of Old West justice, “Don’t worry, he’ll get a fair trial before the hanging.”

Jury selection is a bit like that. A room fills with people who’ve lived lives that you know nothing about. And your job, in a very, very short time, is to see if you can root out those with biases — those who will, from the start of the trial simply be looking for information that will confirm their own biases about lawsuits of this type (whatever the type may be).

Hey, those biases may be great if they help you (as I always tell them)! But they can also be the death penalty of your case.

Every person that has uttered a conclusion on the Kavanaugh sexual assault allegations, regardless of which side they fall on, is utterly unsuited to be making a decision. Each and every one of them has reached a conclusion in advance of hearing all the evidence.

It’s true that, in this particular case, there are 100 jurors and 97% of them have already decided. But that isn’t the point of this post.

The point is about types of people and the way they form opinions and their ability to keep an open mind. A great many can’t do that, and those are the ones you need to find.

Sometimes, they expose themselves.