“We’re not gonna take it, No, We ain’t gonna take it; We’re not gonna take it anymore!”

Friends: 

Last year we discussed my take on looking and dressing the part.  Whether you are taking the field or approaching the bench, if you wear the right uniform and act like you belong, no one will challenge your right to be there.  (If you want to read it again, here’s a link to that post from August, 2010.)

https://robcohen13.wordpress.com/2010/08/02/here-in-cleveland-i-didnt-know-they-still-had-a-team-yup-weve-got-uniforms-and-everything/

With all of the attention being given these past two months to the Dodger Stadium tragedy involving the attacked fan, this same subject came back to the forefront of my mind and is inescapable… because the impact of wearing the right uniform is just as prominent as when you wear the wrong uniform.

As soon as I heard that an arrest had been made in the Dodger Stadium beating case and that the arrested individual claimed to have an alibi, my initial thought was that the accused would claim that he was the victim, a victim of profiling.  That he would argue that he was targeted as a suspect because of the way he looked.  And it got me to thinking:  So few people seem to comprehend that there is a great chance that society will treat you in a certain way because of the way that you look.  We are a shallow society in that way, but can you really blame us?

So here is the thing.  The accused in the beating case may very well have been targeted as a potential suspect because of the way he looked.  The face and neck tattoos, the saggy pants, the close-cropped hair, the general appearance of being a member of a group that is commonly known as being of the criminal element.  I will just come out and say it.  The suspect being sought in the beating was described as having a certain “thuggish” appearance and the gentleman arrested fit that bill.  So to him and anyone else who has been targeted or treated negatively because of the way they looked, I say this:  “You get what you deserve.  And because of that, don’t come crying to me complaining about it.”  Does it sound harsh?  Maybe it is; but I am ok with myself for feeling that way. 

I am a huge fan of music and, especially, live music.  There was a time when I would go to maybe 40 or 50 concerts in a year, one a week or every other week; primarily rock and roll, alternative, and punk.  Yes punk, the kind of music made famous for the Mohawk rooster haircuts, the multiple piercings, the ripped jeans and wallet chains, the ripped stockings, eyeliner, guy-liner, and all manner of hair colors and make-up.  In my travels I saw it all.  And I absolutely understood it.  Punk rock was borne out of a faction of society that wanted to distance itself from conformity and the status quo and express itself as non-conformist, the general “F-U” to a society that told it how to act and how to look.  Awesome, terrific, couldn’t agree more… but don’t bring it into my office; don’t serve me dinner; don’t take my money at the bank; don’t sell me insurance.

What, you don’t like that?  You want me to accept you for who you are, as someone who wants to express yourself in a certain way, the exercise of your freedom of speech or freedom of assembly?  You want me to acknowledge your right to get tattoos all over your body, pierce your lips/nostrils/ears/eyebrows/tongues/cheeks, associate yourself with gang-bangers?  Fine, I acknowledge that you have that right… but I don’t have to like it and I don’t have to be made to feel guilty when I judge you because of it.

But the flip side is, you don’t get to feel slighted or offended or righteously indignant when I or anyone else in society judges the contents of your book by the cover you slap on it.  You want people to treat you with respect and dignity and reverence, I am sorry to say, it won’t happen if you insist on making your “statements” to the world through your appearance.  You want to take a stand, make a statement about what you believe in, I guarantee you will be taken more seriously with a clean shaven face and necktie.  The rip jeans and unkempt look only makes you look sloppy.  And the tattoos up and down your arms and on your neck and face will only detract your audience from what the point you are trying to make. 

As kids we don’t take these things into consideration.  It’s cool to wear baggy clothes with our underwear hanging out, color our hair pink or blue, and get the tramp stamp or teardrop tattoos.  The sins of youth absolutely do have an impact on our later years.  Think that college admissions committees are not looking at your facebook page, checking out the pictures of you and your Hollywood rave attire?  It was so funny and subversive getting that tattoo on your ankle, but when you walk into the boardroom, aren’t you worried that you won’t be able to wear a skirt for fear that someone will see the spider and snake combination when you cross your legs?

Friday night I was at one of those rock concerts and the attire was entertainingly conforming amongst a crowd that tries so hard to be non-conformist.  Black jeans and black shirts with black eyeliner, the jet-black hair in spikes or a Mohawk or overlong bangs.  At a rock concert, that’s cool, that’s fine, live it up.  But when you walk into a job interview, don’t be surprised when you don’t get that job.  And don’t be shocked when the police come calling because your appearance is similar to the appearance of a suspect in a beating.  You want people to treat you with respect and dignity?  We are a superficial society.

This isn’t a call for change or a suggestion that you cannot be who you want to be.  Have at it-but don’t complain when people treat you differently.  Some of us don’t have the time to look beneath the tattoos and pink hair…  And police are more likely to focus on you as a suspect in criminal activity than the guy wearing the three-piece suit, even if you are innocent and he is guilty as sin.

Have a standout week.

Rob  

www.robcohen13.wordpress.com

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” I am an F, B, I, Agent!”

Friends: 

First, a disclaimer:  This is not going to be about baseball.  I know that few of you share my level of enthusiasm for America’s pastime and are less than excited by my posts that deal with that wonderful sport.  So, to keep you reading despite the initial lines regarding baseball, this disclaimer.

That being said, did you hear this week about Vin Mazzaro, the Kansas City Royals’ pitcher who, in his 2011 debut last week gave up 14 runs in only two and a third innings of work?  The performance was a record-setter for futility and has been compared amongst the worst pitching performances of all-time.  The next day, the sports writers had a field day, appearing to take pleasure in Mazzaro’s folly.  And this bugged the “you know what” out of me.

Look, we all have bad days… days when we feel like we can’t do anything right, whether it be argue a motion, find the missing thirty-two cents, or land the client. Sometimes, we just need to chock it up to life’s mysteries and hope that tomorrow is better.  In fact, we know tomorrow is better because we trust in ourselves and in our abilities.  And we also hope that when we have these bad days, no one is watching.

As a baseball fan I understand the fascination with success and failure, winning and losing.  I ate up all of the literature on Mazzaro’s outing; I read everything I could about the statistics of his performance and how it compared with the worst of the worst.  But then I thought about it from another perspective.  Vin Mazzaro is a professional baseball player who made it to the highest level, playing in the major leagues.  How many other people get to do that?

Think of it this way:  For Vin Mazzaro to have made it to the major leagues, he had to have been the best, if not one of the best, baseball players in his little league, his high school, his town, and (if he went) his college.  Then he got drafted and reported probably to the low minor leagues where he worked his way up through the ranks, succeeding every step of the way, establishing himself as a dominant pitcher in the organization.  It took not only a lot of luck to get to the major leagues, but also a tremendous amount of determination and talent.  Doesn’t the dude deserve some respect?  Our society is so gossip-oriented, taking such pleasure in the foibles and failures of others, that we forget all the steps that people had to take to get to that one spot where they landed on the gossip-mongers’ map.

Do you remember the show The Practice?  There was a recurring story-line of a down-on-his luck attorney who came often to seek the counsel of the African-American attorney, Eugene Young.  In fact, the story was that this attorney had never won a case.  As an attorney, when I think back to this story-line, I think about one thing– no matter his record, no matter his success or failure, he was an attorney and he had to be pretty darn good to get that far.  Let me tell you first-hand– the BAR exam is NOT EASY!  This character who had never won a case still had to go to law school (whether at a top-tier law school or a correspondence course) and still had to take and pass the BAR exam.  Doesn’t the guy deserve some respect just for that?  And don’t we feel guilty taking pleasure in his pitifulness?

I cannot agree more, though, that this respect can be fleeting depending upon how the professional comports himself/herself and respects his/her accomplishment.  We have all met and dealt with people who we feel had no reason for ever being put on this earth, let along on a crash course with us.  We deal with them and then hope to never hear their names again, with the knowledge that the respect we have for what we accomplished is not shared by the other side.  For example, the attorney who plays all of the games and consistently takes positions that are inconsistent with his client’s best interests.  Sure he had to suffer through law school and the BAR exam and he deserves some respect for that, but the fact that he doesn’t respect his accomplishments and is willing to disrespect the law is enough to diminish whatever respect existed. 

So what does this all mean?  Well, the world would be a better place if we considered the background and struggles our fellow professionals endured to get to their current position and treated them with the respect they deserve, until, at least, they do something to lose that respect.  But what it also means is that on those days when nothing goes right and it looks like a dark cloud may hang over us indefinitely, we need to go back to basics and start at the beginning.  Think back to the hard work that you already put in to this, the education you received, the qualifications you have and accreditations you’ve earned… thinking back on all of that, you seem pretty damn special.

Think Vin Mazzaro perceives himself as special?  He better, despite the fact that after his disastrous performance last week he was immediately sent back down to the minor leagues.  What more of a blow to one’s self-respect can there be?  Not only will he go down in history as having one of the worst pitching performances in baseball history (which as of December, 2008 totaled over 11 million games according to answers.com); but he must now wonder when he will get the chance to step back onto the major league mound and redeem himself.  Will he be the Final Jeopardy question of who had the worst pitching performance in Major League Baseball history?

Or will he laugh at this when he gets enshrined in Cooperstown?  I hope he gets his chance to laugh.

Know that I respect all of you– until you do something to lose that respect, that is…

 

Rob

 

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“But ol’ man river, He jes’keeps rollin’ along!”

Friends:

  

This may not come as a shock to you, but the wheels of justice they don’t move swiftly.  And when I say “the wheels of justice,” I mean the justice system as a whole.  While I cannot speak for the criminal justice system, the other areas of the court system can be interminably slow.  The criminal justice system is an entirely different beast, what with that right to a speedy trial stuff.

  

No, the justice system just does not move rapidly enough and, in some cases, time is not your ally.  When you need something done and you need it done fast, for whatever reason, pray that you won’t have to take it to the courthouse.

  

This is not an indictment of the justice system… we have already discussed my perspective on that.  This is just a fact of life and one which it behooves you to keep in mind because there are things that you can do to avoid the molasses.

  

Consider the following scenario:  an 85 year old man in poor health is taken to the hospital by a woman who claims to be his wife.  After examination, the hospital staff determines that the gentleman is not in possession of his mental faculties and is incapable of making his own health care decisions.  Moreover, after discussing the gentleman’s condition with the purported wife, the hospital staff learns that the “wife” has been giving the gentleman such poor care that adult protective services needs to be called to investigate potential abuse.  After APS conducts its investigation and evaluation of the gentleman’s faculties, it is determined that the gentleman is incapable of caring for his own needs, but that the “wife” is not that much better.

  

So what happens? 

  

Well, if the gentleman has some sort of an estate plan, you can look to that for guidance.  Maybe he executed a power of attorney and advanced health care directive which will allow his agent to make the decisions for him.  Maybe he has a trust that provides for a successor trustee to take over should he be incapable of doing so on his own.  Or maybe he has nothing.

  

Do you see where this is going?

  

In my scenario, the gentleman did have a power of attorney, although it was executed after the APS determined he was mentally unfit.  He had a trust, but the trust was fairly burdensome on two levels.  First, it provided that a new trustee could be appointed after three (3) independent doctors had declared him to be incapable of managing his own affairs and second, it appointed a now defunct bank as the successor trustee.  There was no one appointed to take over if the bank was no longer around.  More importantly, however, the gentleman did not have a valid advanced health care directive in place and, as such, his physical well-being — separate and apart from his financial needs — were left up in the air.

  

(On a side note, even if the bank was still in existence, it may not have been the optimal choice.  People sometimes forget that a revocable trust aka a family trust or living trust, is set up not only to provide for beneficiaries but to also take care of the people who form the trust.  People sometimes fail to consider that between alive and dead there is likely to be a period of incapacity; when decisions pertaining to one’s health and well-being need to be made, a bureaucracy like a bank may not be the best choice.)

  

Thus enters the gentleman’s family who live on the other side of the country.  And also thus enters the court system, for the option that the family has to ensure their loved one’s needs are met is a conservatorship, the appointment by the court of an individual tasked with making the decisions and acting on behalf of the incapacitated individual. 

  

Petitioning for a conservator to be appointed is a complicated task and one which should not be undertaken without an attorney.  The petition process is incredibly technical, requiring the submission of a myriad of forms, each of which must be prepared accurately with no mistakes.  After the forms are submitted, a hearing date is assigned (usually within 6 weeks) and a separate attorney is appointed by the court to represent the incapacitated individual, the proposed conservatee.  This attorney will interview all pertinent parties, including the proposed conservatee, and make a recommendation to the court as to whether the conservatorship is necessary and whether the petitioner should be appointed to act as the conservator.  Big words, lots of people involved, more cost and, more importantly, more time involved.  All the while, the proposed conservatee, the incapacitated individual, the gentleman in my scenario, is in limbo.

  

Of course there is a process to request that action be taken more swiftly, that a true emergency exists and the normal hearing procedure will not suffice, however as I mentioned last week, there are no guarantees that the court will grant the emergency relief requested.  Here is the other problem:  everyone who needs a conservator appointed needs it on an emergency basis, right?  Seriously, if someone is requesting that a conservator be appointed, someone has already determined (right or wrong) that the person is unable to take care of themselves.  Isn’t that, by itself, the definition of an emergency?  Eventually this emergency procedure will be utilized more frequently, thus devaluing the emergency procedure itself. 

  

So considering all of that, do you really want to put your loved ones in the position of not being able to care for you while they wait for the wheels of the courts to churn at a snail’s pace?

  

There are ways around it.  There always are.  Now, I won’t give away all of my secrets, but it can be done.  But two things have to happen.  First, you have to be willing to pursue it.  You can’t put it off or say it can keep until a rainy day.  If you wait for the right time, it won’t ever happen.  The same is true of having children and filing your taxes.  If you wait for the perfect time, it won’t ever get done.  The perfect time is now, for you cannot predict when you or a loved one will lose the ability to care for yourself or him/herself. 

  

Second and more debilitating to some… you have to be willing to pay for it.  This is not meant in a snide or self-serving manner.  I always say that if you want something done right, do it yourself.  In this case, if you want it done right, pay the right person to do it right.  Don’t rely on a self-help service or a website or computer program.  Some things you don’t want to leave to chance.

  

I typically do not make any guarantees but in this case I will make an exception.  If you don’t put something in place to give your loved ones guidance in the event of incapacity, you will leave them ill-equipped and may require the intervention of the court system.  If you are not willing to do it to ensure that you are taken care of, maybe you can do it to ensure that your loved ones have an easier time of it on their end?

  

Have a great week.

  

Rob

  

www.robcohen13.wordpress.com

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“Mr. Reede, one more word out of you, and I will hold you in contempt!”

Friends:

It is unfortunate, but I feel I must let you in on a little secret about the judicial system.  This is said in all honesty and with no cynicism or sarcasm… Judges and juries sometimes get it wrong.

I don’t know whether I should even be telling you that, as if it is some sort of admission that the public at large should never know, like I have a responsibility to the Bar to hold the justice system in esteem.  But when you are working as hard as you can to do the best job that you can for your client, to have a judge or jury make a bad decision is horrifying and yet, to be expected or at least anticipated.

It is a litigator’s lament– sometimes doing the best thing for your client is not to litigate.  Putting your fate in the hands of a judge or jury may not be the best solution. 

So why do judges and juries sometimes get it wrong?  Consider the amount of work it may take for an attorney to bring a motion or try a case.  The hours of work and preparation can add up when you consider the research, the drafting, and the revising, not to mention the hours spent in front of the mirror preparing your oral argument, or preparing a witness, or getting your exhibits together.  Hour after hour after hour. 

And how much time do you think a judge spends on this?  If it is a motion, it is heard with the typical morning calendar, when the judge may have 10 other matters on calendar.  Maybe the judge had time to prepare for the morning’s calendar the afternoon or evening before.  Don’t pay any attention to the fact that the judge received the motion likely a month earlier; it didn’t get read and considered until the day or a few days before.  But is the judge in trial?  Was he hearing testimony until 4:30pm the day before?  Regardless of how much time the judge took to review the argument, it pales in comparison to the number of hours the attorney spent in preparing.

Well, how hard can it be, right?  These legal issues should be fairly simple and judges know everything already, so how hard is it?  As in all things, it can be easy or it can be hard.   If you have a simply auto accident, the judge has likely seen and heard it all hundreds of times.  But what if it is a complicated usury claim, having to do with the amount of interest that can be charged on a promissory note and whether the loan was arranged by a broker and if the payments on the note were made by the borrower or the borrower’s son?  The attorney spent hours upon hours researching this very technical aspect of the law.  The judge maybe read the paperwork the evening before, along with 10 other motions, grasped the general concepts, saw the words “usury” and “no broker” and figured that usury is usury so that is that.

The attorney might have a slam-dunk winning argument… if the judge had nothing else to do but read, research, and consider that one motion.  The judge doesn’t and they miss things.  It is so easy to do.  In a world where details can be the difference, they may get lost, as the judge loses sight of the forest through the trees.

Judges are people just like you and me and the guy down the street.  They make mistakes.  We just hope that if they do make mistakes, if is on someone else’s case.

And what about juries?  We all know the joke, that we don’t want a jury made up of jurors too stupid to get out of jury duty; but clients think that they can relate to jurors, that they are believable and make sympathetic witnesses.  They believe that they can develop an emotional connection with the jurors. 

Have you ever been on jury duty?  Do you remember how miserable you were?  Think about how you act when you are forced to do something you don’t want to do.  You sulk, you slump and you stare off into space, thinking about 1,000 other things you could be doing instead.  And when you see the finish line?  You want nothing standing in your way.

How about this story.  An attorney wins at trial and talks to one of the jurors afterwards to find out what it was that swayed the jury to her side.  The juror tells her that they were so eager to leave that they took a vote and just adopted the majority position, completely disregarding the instruction that the decision be unanimous.  Remember “Twelve Angry Men?”  If you haven’t seen it, do so (the one with Henry Fonda is terrific).  I may be cynical, but to me that movie might be better classified as fantasy/science fiction.  It doesn’t happen that way anymore.  Maybe it did, but it doesn’t now.

But this is the system we have, so we have to grin and bear it.  Although there is an alternative… participate in voluntary resolution programs.  Wouldn’t you rather control the outcome than place the decision-making in the hands of people you don’t know?

I am no expert but I believe there may be a psychological component to it.  We like to think that we are reasonable people, that we have the intelligence and compassion to make the right decision, and I believe that on the whole we do.  But we look at these things in a vacuum.  If we were tasked with hearing only one argument, having all the time in the world, and having unlimited resources at our fingertips, I believe that 99 times out of 100 we would make the right decision.  But judges and juries don’t operate in a vacuum.  So litigants take their chances and sometimes it is a crapshoot– maybe you hit double boxcars or maybe it is snake eyes…

Or maybe you decide to play pinball instead.  Whatever the decision, the important thing is to understand how the game is played and what the risks may be.

Have a great week.

Rob

www.robcohen13.wordpress.com

http://www.twitter.com/robcohen13

“I remember every wand I’ve ever sold, Mr. Potter.”

Friends:

  

Times have changed.  I remember thinking that life was simpler when my parents were young.  Maybe it was a symptom of my parents’ childhood appearing in black and white or maybe it was the entertainment choices from that time, when bad language, sex, and violence were more closely monitored and hidden away.  But it all seemed so much more pure and clean.  I am now beginning to view my own childhood that way when compared with the children of today.  Seeing it through the eyes of my own kids has a way of putting rose-colored glasses on my own childhood.

  

Being the reader that I am, I am more keenly aware of the change in the written word from my childhood to the current generation and it scares me.  Not scares me as in “I am scared for the future” but scares me, as in “that stuff scares me, it truly gives me the willies.”  What am I talking about?  Have you been to a bookstore lately?

  

My family took its annual pilgrimage to the Festival of Books this weekend and I was reminded yet again of how much books have changed.  The young adult books seem to have gone the way of the 8-track player.  It is either Fancy Nancy and Amelia Bedelia or it is wizards and warlocks and vampires.  Is this what our kids are reading??

  

When I was a kid, I remember vividly the kids’ books I read.  Whether they were Beverly Cleary, “Tales of a 4th Grade Nothing,” or Choose Your Own Adventure, the young adult books seemed wholesome and winsome.  After I had graduated from that genre, I don’t remember many options.  Sweet Valley High is really all that I remember and there didn’t seem to be any other alternatives, although The Hardy Boys and various sports-themed books were available.

  

So when I turned 12, I jumped to the bestseller list.  Presumed Innocent was one of the first ones I remember reading when I was 12 and other than that it was The Caine Mutiny and Exodus… “novels,” not “books,” you know?  Maybe there were young adult options, but they didn’t interest me for whatever reason.

  

As times have changed, so have the reading tastes of our young adults.  Look, I am all for kids reading.  I used to be teased and picked on because I was never without a book in my hands.  And more often than not, the books did not have any pictures.  But nowadays, the books that our kids read are downright frightening and as a parent I am nervous.  I mean, I want to encourage reading, but do I really want my kids reading these kinds of books?

  

It seems to have started with the Harry Potter books and everyone else has tried to either copy or outdo them.  The furor over Harry Potter and its story-line in which one of the characters is killed (in Book 4) seems tame compared with what I see in the book store.  No, I am not trolling the kids’ section for books, but I do venture into that area when looking for books for my kids.  And the things I see are disturbing.

  

Skelteons and mass murderers and sorcerers and all types of villainy were customarily reserved for the science fiction/fantasy section.  Now, they are at the forefront of the young adult section.  I am already aware that movies and television are working to create a society which is desensitized to violence and horror, but do we really want our literature doing the same? 

  

Here are some of the titles on Amazon.com’s bestseller list for teens:  “The Hunger Games” about a post-apocalyptic world in which children are used as gladiators in televised fights to the death; “Switched” which includes a character whose mother tried to kill her because she thought she was a monster; “Turned” which is Volume 1 of the “Vampire Journals”; and of course, the “Twilight” saga about, I guess vampires and werewolves.  I don’t want my little girls reading this stuff!

  

I know that they will not always be into princesses and Barbie and Dora the Explorer, but I do not want them exposed to murder and mayhem and blood-sucking and hard-core villainy at such a young age. 

  

My wife and I were talking about this a few weeks ago and it is seeming more and more as if we cannot trust the publishers to appropriately categorize the books.  We as parents are forced to read the books first so that we can determine if they are appropriate for our kids.  As a scaredy-cat, I am frightened of this.  I don’t want to read this stuff and get nightmares!!!

  

For as much as Harry Potter was for young adults, when I read them as an adult, the only thing I found to be “young adult” about them was their simplistic writing styles and use of more mono-syllabic words.  The subject matter was more akin, in my estimation, to a Stephen King-lite.  I mean, come on!  The theory of the story is that Harry is the boy who lived when his parents were murdered.  My daughter cries at Phineas and Ferb, do I really want her exposed to parents being murdered??????

  

Our kids are so influenceable by the media; they are potentially more apt to be fanatical than adults because their worlds are so limited; their exposure to the outside world is virtually non-existent so their paths of escape are limited to the media.  They become engrossed in these subject matters and they lose their innocence and amiability.  It saddens me as a parent of two little girls. 

  

Of course, our grandparents must have felt the same way when “Catcher in the Rye” was released and our parents were sure concerned by “Are You There God, It’s Me Margaret” (never read it).  So maybe this is just another symptom of the generational evolution.  But am I not allowed to harken back to a simpler time?  Maybe I am just an old soul like that…

  

Well, I need to end now.  I am thoroughly engrossed in a murder mystery with sexual undertones involving a serial-killing vampire/pirate/werewolf.  Gotta get back to it…

  

Have a great week.

  

Rob

  

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